Gujarat High Court
Oriental Insurance Co Ltd., Regd. ... vs Sureshbhai Shankarbhai Valand on 10 March, 2023
Author: Ashutosh J. Shastri
Bench: Ashutosh Shastri
C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2917 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
=============================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
any order made thereunder ?
=============================================
ORIENTAL INSURANCE CO LTD., REGD. OFFICE AT ORIENTAL HOUSE,
Versus
SURESHBHAI SHANKARBHAI VALAND & 2 other(s)
=============================================
Appearance:
MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1
MR UM SHASTRI(830) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
=============================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 10/03/2023
CAV JUDGMENT
1. By way of present appeal under Section 173 of the Motor Vehicles Act, 1988, original opponent no. 3 i.e. present appellant - The Oriental Insurance Co. Ltd., has challenged the Page 1 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 legality and validity of the award passed by the Motor Accident Claims Tribunal (Assistant) 2nd Additional Court at Modasa dated 27.01.2010 in M.A.C.P. No. 1583 of 1997.
2. The background of the facts which has given rise to the present appeal is that on 13.03.1997 the original claimant i.e. opponent no. 1 herein was travelling in tractor thresher for harvesting wheat from the agricultural field and the said tractor was driven by opponent no. 3 herein. At about 9:00 pm in the night, opponent no. 3 in a rash and careless manner drove the tractor on account of which the original claimant who was sitting beside the driver on mudguard, due to bad surface of the road, fell down from the tractor and the wheel of the tractor has ran over his leg and damaged the left leg of the claimant. Initially the injured claimant was first brought to Mehgraj and thereafter at Modasa and admitted in the clinic of Dr. Rakesh Shah. On account of serious injuries, an operation was done and his leg was amputated and later on after operation having been completed, a complaint was lodged before the jurisdictional police station on 28.03.1997. The claimant i.e. opponent no. 1 Page 2 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 herein since sustained serious injuries, under the multiple heads, a claim petition was brought before the Motor Accident Claims Tribunal (Assistant) 2nd Additional District Court, Modasa (hereinafter referred to as the "Tribunal") under Section 166 of the Motor Vehicles Act for claiming compensation to the extent of Rs.4,50,000/-. The said claim was registered as MACP No. 1583 of 1997 which after due adjudication came to be disposed of by the learned Tribunal vide judgment and award dated 27.01.2010 and directed the opponents jointly and severally to pay Rs.1,61,800/- towards compensation with interest at the rate of 6% and proportionate costs etc., which can be seen from the operative part of the award. It is this judgment and award passed by the learned Tribunal is made the subject matter of present First Appeal by the Insurance Company, mainly on the ground that the Insurance Company in a situation like this is not responsible for claim of compensation. From the record, it appears that this Court vide order dated 22.12.2010 has admitted the First Appeal. The said order dated 22.12.2010 reads as under :
"Appeal is admitted.Page 3 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023
C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 Civil Application No.11512 of 2010 Though served, none is appeared. Interim relief is granted in terms of paragraph 5 (a) on the same terms and conditions. Out of the deposited amount, 60 % shall be invested in the name of the Nazir of the Tribunal with a nationalized Bank initially for a period of three years and on maturity shall be renewed by one year at a time without any further orders in this regard till the disposal of the appeal. The Fixed Deposit Receipt shall be kept with the Nazir of the Tribunal. Whereas 40 % of the awarded amount is permitted to be withdrawn by the claimant, which will be adjusted at the time of outcome of the appeal. The periodical interest that may be accrued on the said deposit shall be paid to the original claimants. Application stands disposed of accordingly."
3. Later on, it appears that before the co-ordinate Bench, on 21.03.2016 it was observed that the present appeal be placed after disposal of First Appeal Nos. 4601 of 2007 and 4602 of 2007 to be decided by the Division Bench of this Court and it transpires that after disposal of the said First Appeals by the Division Bench, present First Appeal has come up for consideration before this Court and learned advocate Ms. Karuna Rahevar has represented the appellant Insurance Company whereas, Mr. B.K. Oza, has appeared on behalf of Mr. U.M. Shastri, learned advocate appearing for the original claimant i.e., opponent no. 1 herein.
Page 4 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023
C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023
4. Ms. Rahevar, learned advocate appearing for the appellant
- Insurance Company has vehemently contended that the learned Tribunal while passing the order impugned has committed serious error in law by holding liability of Insurance Company to pay the compensation. The learned Tribunal has failed to appreciate that the vehicle involved is a tractor which is a goods vehicle as defined under the Act and admittedly, the claimant was travelling undisputedly in goods vehicle and sitting beside the driver on mudguard of the tractor which is impermissible. It is further contended that the registration book of the tractor indicates sitting capacity of tractor as one only and as such, travelling in a tractor which was driven in breach of rules and in violation of the terms and conditions of policy itself, the Insurance Company cannot be saddled with the liability. It has further been contended that the tractor can be used only for the purpose of agriculture and not for allowing the same to be driven for gratuitous passenger and here undisputedly, in addition to the driver, the claimant was sitting on mudguard and was travelling as gratuitous passenger. Page 5 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 Learned advocate appearing for the appellant has also placed reliance on the decision of this Court rendered in First Appeal No. 913 of 2011 dated 23.12.20221 and has submitted that the claimant was travelling as gratuitous passenger. Hence, the liability of Insurance Company does not arise at all and that fact having not been appreciated by the learned Tribunal, a gross error is committed, which deserves to be corrected. 4.1. Learned advocate appearing for the appellant has further contended that there is no quarrel with regard to quantum of compensation being raised in present appeal and as such, has not offered any submissions insofar it relates to compensation part. Learned advocate appearing for the appellant has further submitted that during the pendency of the present appeal, in the month of March, 2016 it was recorded that the question of liability of a person travelling in a tractor was being dealt with by the Division Bench at the relevant point of time and as such, the hearing was deferred, but then, learned advocate appearing for the appellant has contended that the said appeals which are referred to in previous order dated 21.03.2016 were disposed of Page 6 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 by order dated 15.06.2017 in which, it was clearly held that the Insurance Company cannot be made responsible for payment of compensation in a situation where any passenger is travelling in a tractor. Hence, referring to the said decision, learned advocate appearing for the appellant has requested to allow the present appeal. No further submissions have been made.
5. As against this, Mr. B.K. Oza, learned advocate on behalf of Mr. U.M. Shastri, learned advocate appearing for the contesting opponent has submitted that the learned Tribunal while dealing with the question of compensation has not only determined the quantum to be payable, but also specifically gone into the aspect of liability of Insurance Company and the record which has been examined by the learned Tribunal has clearly indicated that the additional premium has also been recovered by the Insurance Company and as such, by projecting a hyper technical plea, the Insurance Company cannot evade the liability which has been crystallized after proper adjudication. To substantiate the stand that Insurance Company is liable to make the payment of compensation, learned Page 7 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 advocate appearing for the opponent has specifically referred to finding with regard to the said issue referred in paragraphs 17 and 18 of the award under challenge and thereby has contended that when third party premium has also been accepted by the Insurance Company by raising such plea, the Insurance Company cannot deviate itself from the liability. Hence, no case is made out. It has further been contended that the decision of Division Bench which has been tried to be pressed into service is also not of any assistance to the appellant in view of the fact that the facts are quite distinct from the said decision and as such, if one additional fact is reflecting on the record, the ratio laid down cannot be applied as straight-jacket formula when facts have been examined. Hence, has submitted that the reliance placed by the Insurance Company on the aforesaid decision is of no assistance and appeal being meritless deserves to be dismissed. Mr. Oza, has also relied upon the following decisions :-
(1) In the case of S. Iyyapan v. United India Insurance Comapny Ltd., & Anr., reported in (2013) 7 SCC 62.
(2) In the case of Chandrakant Tiwari v. New India Page 8 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 Assurance Co. Ltd., & Anr., reported in (2020) 7 SCC 386.
(3) In the case of Ranjana Prakash & Ors., v. Divisional Manager & Anr., reported in (2011) 14 SCC 639.
(4) In the case of Shivawwa & Anr., v. Branch Manager, National Insurance Co. Ltd., & Anr., reported in 2018 ACJ 1288.
(5) In the case of New India Assurance Co. Ltd., v. Somwati & Ors., reported in (2020) 9 SCC 644.
6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, few circumstance prevailing on record are not possible to be unnoticed.
6.1. The assertion in the claim petition was to the effect that on 13.03.1997 for the purpose of harvesting wheat crop in agricultural filed, the claimant went with a driver i.e. original opponent no. 2 and the said tractor - thresher vehicle belonged to opponent no. 1. At about 9:00 pm in the night, on account of rough surface of road when break was applied, the Page 9 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 claimant fell down from the tractor and the wheel of the tractor ran over the leg of the claimant which resulted into serious injuries to the extent of amputation of leg and as such, claim petition was put-forth before the learned Tribunal. In between there was a request for payment of Rs.25,000/- about no fault liability by virtue of Section 140 of the Act which application at Exhibit-4, came to be allowed vide order dated 08.05.2002. 6.2. On perusal of the record, it indicates that the main defence which has been put-forth by the Insurance Company in its written statement at Exhibit-17 reflecting on page 32 of the record is that tractor is a goods vehicle and the same is to be plied in consonance with the rules well as conditions contained in the policy. No gratuitous passenger is allowed since the registration book of the tractor indicates capacity of 1 person only and the claimant being in addition to driver of the tractor inside the vehicle was in conflict with the said permit which tantamounts to be clear violation by the Insurance Company. Hence, liability of payment of compensation cannot be fastened upon and this submission is contained in paragraph 11 of the Page 10 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 written statement as can be noticed from page 34 of the record. The said written statement was submitted on 15.07.2000. It further transpires from the record that on 19.08.2000 purshis was submitted before the learned Tribunal at Exhibit-18 indicating that Insurance Company wants to amend the written statement by raising further contention that the owner of the tractor allowed the same on rent for the purpose of commercial use i.e. for allowing the claimant for using the same for harvesting wheat crop in the field and as such, also there is violation of policy and on that count also, the Insurance Company cannot be saddled with the liability and by order dated 18.12.2007, the said amendment is permitted to be carried out in the written statement. This fact can be seen from page 38 of the records and proceedings. It further appears from the deposition of claimant - Sureshbhai Shankerbhai Valand that in chief examination it has submitted that since there was work of harvesting of wheat crop in the field, the same was required to be removed by way thresher and for that purpose, since original opponent no. 1 Somabhai Nanabhai Patel was giving on rent the said use of the tractor and thresher, the claimant went to Page 11 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 the house of said Somabhai and then after informing, the tractor with thresher was being taken at the field of claimant and the same was driven by the original opponent no. 2 and at that time, the claimant was sitting in the tractor on mudguard and on account of applying the breaks suddenly, he fell down which has caused serious injuries as indicated above. Since the Court is concerned with the question of liability of appellant Insurance Company without adverting the quantum aspect, a further perusal of the record indicates that in cross examination, Sureshbhai Shankarbhai Valand - claimant has admitted that the tractor was taken on rent for the purpose of harvesting wheat from his filed. So, the said tractor was taken on rent, driven by original opponent no. 2 and the claimant was sitting in the tractor as additional person. It is further noticed from the deposition of Kanjibhai Punjabhai Pandya at Exhibit-45 reflecting on page 50 as witness no. 1 of original opponent no. 3 i.e., present appellant, that amount of premium has been collected by the Insurance Company and has clearly conveyed that the occupiers insurance is not taken nor has taken any additional premium and in the tractor there is no facility of Page 12 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 sitting, except the driver who is plying the tractor. Of course, in the cross examination, he admitted that there is sitting arrangement on both the sides. Except this, nothing further is revealed from the record. But nonetheless the fact emerging from the record indicates that insurance policy is not permitting any gratuitous passenger nor can be given on rent nor the permit indicates additional capacity of sitting arrangement. In the context of aforementioned background of fact, almost in similar circumstance, the matter came up before the co-ordinate Bench at the relevant point of time in the year 2016 in First Appeal No. 4601 of 2007 with First Appeal 4602 of 2007, wherein, in view of the conflicting decision, the matters were referred to Division bench by formulating the question of law and since this appeal also was kept in abeyance till the Division Bench decides the said issue. Hence, the Court deems it proper to quote hereunder the said reference being made vide order dated 04.01.2016.
" Whether in the case where the initial entry in a vehicle as a passenger is in violation of the terms of the agreement, the moment such a passenger had been thrown out of the said vehicle and thereafter some portion of the vehicle itself had fallen upon the body of the Page 13 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 passenger, the position of such passenger can be treated that of "third party" with reference to that vehicle and in such a case on the death of such passenger whether his heirs and legal representatives are entitled to compensation and the Insurer of the vehicle can be held liable to pay the compensation."
7. While considering the said aspect, when the decision dated 15.06.2017 delivered by the Division Bench of this Court in aforementioned appeals is perused, a critical analysis of the said question in the context of terms of the policy and the relevant law has been discussed and the Division Bench in terms held that the liability of paying compensation by the Insurance Company does not arise and while answering the reference of said question of law, Insurance Company was exonerated from liability. Since the Court has considered and is bound by it, the Court deems it fit to reproduce the relevant extract of the said decision hereunder :
"13. In a similar case set of facts in the case of New India Assurance Co. Ltd. v. Heirs and Lrs of deceased Pravinsinh Ranubha Zala, reported in 2013(2)GLR 1580, this Court has taken a similar view, exonerating the Insurance Company and as per the facts of this case, the victim took the tractor on rental basis and while travelling on the tractor, she fell down and died. It was held by this court that the Insurance Company would not be liable under the third party insurance policy, as the position of Page 14 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 the victim was as a gratuitous passenger. The amount of award was held recoverable from the owner of the tractor only and appeal preferred by the Insurance Company was allowed.
14. Considering the facts of this case, the present appeal is hereby allowed. Award passed by the learned Motor Accident Claims Tribunal (Aux.), 4th Fast Track Court, Sabarkantha at Himatnagar in M.A.C.P. No. 1596 of 1997 is hereby modified to the extent of exonerating the appellant-Insurance Company from the liability for paying compensation to the claimants. This court, in another First Appeal No. 2194 of 2007, was pleased to held the liability of the appellant Company, considering the peculiar facts and circumstances of the case. In this case, it was found by this Court that there was clear admission on the part of the claimant that vehicle jeep was taken on hire, however, it was a private jeep. This Court of course held that there was a definite violation of terms and conditions of the Insurance, so far the Injury caused to the passengers of the vehicles were concerned. In this case, out of all passengers only the victim was died. However, both in the FIR and in the affidavit-in-chief , it was specifically stated that as a vehicle turned turtle, the victim sitting in the vehicle was thrown out of the same and she came under the rear part of the vehicle and sustained fatal injuries. In the cross-examination, no suggestion was put to the said witness that the deceased was not thrown out of the jeep, but was very much within the jeep in such situation. It was found by this Court that factually it was well established, when the jeep was fallen into ditch, out of all passengers, the victim was thrown out of the jeep and had fallen on the road and over her body, the rear portion of the jeep had struck, resulting in her death. Therefore, this Court was of the view that though the initial entry in the jeep as a passenger was in violation of the terms of agreement, the moment such a passenger, due to negligence on the part of the driver of the jeep, had been thrown out of the jeep and thereafter, the rear portion of the jeep itself had fallen upon her body, the position of the said passenger Page 15 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 must be treated to be that of "a third party" with reference to the jeep. Considering the peculiar facts, the First Appeal No. 2194 of 2007 was dismissed holding the liability of the Insurance company to pay the compensation to the claimants. Here, in the present case, this is not the position as both the passengers were sitting on the tractor, and therefore, the liability of paying compensation by the appellant-Insurance Company does not arise.
15. The appellant/Insurance Company is exonerated from the liability of paying compensation to the claimants. As agreed by both the parties, the amount deposited by the appellant/Insurance Company to the tune of Rs. 30,000/- and already recovered by the claimant shall not be recovered by the appellant. Appeal stands allowed to the aforesaid extent."
8. In light of the aforesaid proposition which has been made by the Division Bench of this Court, it would not be possible for this Court to accept the stand of the opponents herein that learned Tribunal has rightly fixed the liability of the Insurance Company. On the contrary, this question has been examined and as such, no different view is possible more particularly, here also almost similar circumstance is reflecting. Hence, case is made out by the appellant Insurance Company.
9. At this stage, the request of opponents with regard to applying principle of doctrine of pay and recovery and for Page 16 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 which, the decisions have been brought to the notice of this Court by counsel appearing for the opponents. Perusal of the said decisions noted herein above would indicate that in a circumstances where Insurance Company is not responsible at all, the question of applying such principle of doctrine of pay and recovery is out side the scope of present proceedings. The Hon'ble Apex Court in exercise of its special jurisdiction under Article 142 of the Act has exercised such discretion which jurisdiction is not amenable or available to the present Court. Hence, the Court is not inclined to apply such principle of doctrine of pay and recovery. Hence, Court deems it proper to modify the award which has been the subject matter of present appeal. Hence, the following order is passed which would meet the ends of justice.
9.1. The present appeal is allowed and the appellant Insurance Company is exonerated from the liability of paying compensation to the original claimant. However, it is made clear that rest of the award is unaltered and other opponents except the Insurance Company are bound by the award for its Page 17 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023 C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023 compliance since no appeal from opponents nos. 2 and 3 has been filed.
10. With this observations, present appeal stands allowed to the aforesaid extent.
(ASHUTOSH J. SHASTRI, J) phalguni Page 18 of 18 Downloaded on : Wed Mar 15 20:33:28 IST 2023