Gujarat High Court
United India Insurance Co Ltd vs Legal Heirs Of Decd Kasubhai Desabhai ... on 20 May, 2022
C/FA/134/2014 CAV JUDGMENT DATED: 20/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 134 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNITED INDIA INSURANCE CO LTD
Versus
LEGAL HEIRS OF DECD KASUBHAI DESABHAI VALA & 5 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 20/05/2022
CAV JUDGMENT
1. The present First Appeal is preferred by the Insurance Company under Section 173 of Motor Vehicles Act, 1988, being aggrieved with the judgment and award passed by the Motor Accident Claims Tribunal (Auxiliary), Rajula in Motor Accident Claim Petition No.316 of 2011 dated 04.08.2012, by which the Tribunal has awarded Rs.2,25,900/- with Page 1 of 7 Downloaded on : Fri May 20 20:56:12 IST 2022 C/FA/134/2014 CAV JUDGMENT DATED: 20/05/2022 9% interest p.a. from the date of claim petition by holding Respondent Nos. 1 & 2 jointly and severely liable for the payment of compensation.
2. The brief facts of the case are as such that, on 21.06.2004, when the deceased-Kashubhai Desabhai was driving the motor cycle bearing registration No.GJ-14-C-9429, which is of the ownership of Opponent No.1. The deceased went to village Dharagni from his village Chhel Khambhaliya. When he was going back to village charodiay suddenly his motor cycle entered in technical fault. Therefore, motor cycle turned turtle and deceased fell down. He had received severe injuries and immediately he was shifted to Government Hospital, Rajula where he was declared dead. A complaint is also lodged with the Rajula Police Station vide C.R. No. 99 of 2014. Thereafter, the claimants who are the heirs of the deceased have filed a claim petition to get compensation to the tune of Rs.4,00,000/-.
2.1. The Tribunal has issued notices. Though, notices were served, the Opponent No.1 had not appeared before the Tribunal. The Opponent No.2 - Insurance Company has filed its written statement vide Exh.11 and had disputed the averments. Thereafter, considering the pleadings of the parties, the Tribunal has framed issues for its determination at Exh.28. The claimant-Vasantben Kasubhai Vala has filed her affidavit in support of claim petition and she was also cross-examined by the advocate for the respondent. The claimants have produced documentary evidence like copy of F.I.R. at Exh.21, copy of Panchnama at Exh.22, copy of P.M. Note at Exh.23, copy of Khedut Khatavahi at Exh. 25 and the Insurance Company has produced the documentary evidence at Exh.24, copy of insurance policy etc. Thereafter, the Tribunal has heard the rival parties at Page 2 of 7 Downloaded on : Fri May 20 20:56:12 IST 2022 C/FA/134/2014 CAV JUDGMENT DATED: 20/05/2022 length and has decided the claim petition by awarding Rs.2,25,900/- with 9% interest p.a. from the date of claim petition.
3. Learned advocate Mr. Palak H. Thakkar for the Insurance Company has submitted that in view of the impugned judgment and award of the Tribunal, more particularly, in view of the fact that the Insurance Company cannot be held liable in the facts and circumstances of the present case where the claimant himself is negligent, therefore, he cannot get compensation for his own negligence. He has pointed out that the documentary evidence at Exh.24-insurance policy, where he has submitted that third party basic premium is paid and compulsory personal accident to the owner and the driver is covered for Rs.1,00,050/- which is charged by the Insurance Company. But even in that case, the Insurance Company cannot be held liable to pay the amount of compensation. He has relied upon the judgment of Hon'ble Supreme Court in the case of Ramkhiladi and another v. United India Insurance Co. Ltd. reported in (2020) ACJ 627, where on account of negligence of deceased, the Tribunal has erred in directing the appellant to pay the compensation to the claimants. He has further submitted that the deceased was holding driving license or not, is not established by the claimants. Therefore, since there is violation of condition of insurance policy, the Tribunal cannot held the Insurance Company liable to pay the amount of compensation. He has further submitted that in view of the judgment reported in the First Appeal No.1035 of 2012 of this Court, wherein this Court has considered the aspect of personal accident and to that extent, Rs.1,00,000/- is awarded by way of amount of personal accident. Therefore, he has submitted that the present appeal is required to be allowed as the Tribunal has committed gross error in holding the Insurance Company liable to pay the amount of compensation.
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4. Per contra, learned advocate Mr. Hemal Shah for the Respondents- Original Claimants has submitted that it is true that liability of the Insurance Company by way of personal accident is up to Rs.1,00,000/- as per the policy issued by the Insurance Company. However, he has submitted that in the petition under Section 163 A of the Motor Vehicles Act, aspect of negligence is not required to be examined in view of the judgment of Hon'ble Apex Court in the case of United India Insurance Co. Ltd. v. Sunil Kumar reported in AIR 2000 SC 5710, First Appeal No.2932 of 2007 of this Court and the Hon'ble Apex Court in the matter of Fahim Ahmad & Ors. v. United India Insurance Co. Ltd. & Ors. rendered in Civil Appeal No. 6220 of 2008. He has submitted that the appellant herein is raising the contention about the liability first time in the present appeal, which is not permissible. Therefore, he has relied upon the judgment reported in the First Appeal No. 2741 of 2007. He has also relied upon the judgment of the Division Bench regarding on the issue of driving licence which is the judgment rendered in the First Appeal No. 14 of 2010 dated 04.02.2022. He has also submitted that in view of the judgment of Hon'ble Supreme Court in the case of Chandrakanta Tiwari v. New India Assurance Company Ltd. reported in 2020 7 SCC 386. He has submitted that the claimants need not to establish that in respect of which the claim was made due to any negligence or default of owner of vehicle or any other person. He has further submitted that in view of the settled legal position, no interference is required in the present matter as the Tribunal has given cogent and convincing reasons, more particularly, in paras 14, 15, 16 and 17 of the impugned judgment. He has submitted that, therefore, there is no need to interfere with the judgment of the Tribunal. He has further submitted that at the relevant point of time, the Tribunal has considered the judgment of Page 4 of 7 Downloaded on : Fri May 20 20:56:12 IST 2022 C/FA/134/2014 CAV JUDGMENT DATED: 20/05/2022 Hon'ble Apex Court in the case of National Insurance Company Ltd Vs. Sinitha & Ors. reported in A.I.R. 2012 SC 797, and also the judgment of this Court in the case of New India Assurance Co. Ltd. v. Manishaben Mahendra @ Shanker Joshi & Ors. reported in 2008 (4) G.L.R. 2896,. He has further submitted that as per the judgment of Sinitha (supra) and other judgments, the Tribunal has rightly held that the Insurance Company is liable to pay the amount of compensation as the negligence aspect is considered affirmatively by the Tribunal. Accordingly, though it is not required to consider the aspect of negligence in the subsequent development, more particularly, in the judgment of Hon'ble Apex Court in the case of Sunil Kumar (supra). Therefore, he has submitted that the Tribunal has not committed any error and the present appeal is otherwise meritless and deserves to be dismissed.
5. I have considered various submissions made by the parties. I have also perused the record and proceedings of the Tribunal. It is true that the deceased was himself driving the vehicle and due to some mechanical defect, deceased lost the control on the vehicle resultantly, he has fallen down and received the injuries and ultimately died. Therefore, the present claim petition is filed under Section 163 A of the Motor Vehicles Act. The provisions of Section 163 A of the Motor Vehicles act, 1988 reads as under :-
"(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.--For the purposes of this sub-section, Page 5 of 7 Downloaded on : Fri May 20 20:56:12 IST 2022 C/FA/134/2014 CAV JUDGMENT DATED: 20/05/2022 "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule"
Therefore in my opinion, the Tribunal has not committed any error by keeping in mind the factual aspect of the matter and also keeping in mind the judgment of Fahim Ahmad (supra) as well as the judgment of Chandrakanta Tiwari (supra) and the judgement of this Court in the First Appeal No.1129 of 2013 whereby the Court has found that the Insurance Company should be held liable in the facts and circumstances of the case and where the premium is paid to the driver as well as owner of the vehicle. Mr. Hemal Shah has also relied on the judgment of this Court in the First Appeal No.14 of 2010 as well as in the First Appeal No.2932 of 2007 which are also helpful to the case of present respondents. The judgment of Ramkhiladi (supra) could not be applicable squarely in the facts of the present case as in the present case, the amount of the premium for the risk of the driver as well as the owner is paid and looking to the various judgments of the Hon'ble Apex Court on the aspects like matter under Section 163-A, the negligence is not required to be proved and when the Insurance Company has charged the premium for the risk of the driver and the owner of the vehicle, in my Page 6 of 7 Downloaded on : Fri May 20 20:56:12 IST 2022 C/FA/134/2014 CAV JUDGMENT DATED: 20/05/2022 opinion the Tribunal has not committed any error in holding the present appellant - Insurance Company liable to pay the amount of compensation. Accordingly, I found that there is no merit in the submission made by the advocate for the appellant about the limited liability to the extent of personal accident in the present case. Therefore, I found that in view of the above discussion, the appeal of the Insurance Company is meritless. The Tribunal has given cogent and convincing evidence, therefore, there is no reason to interfere in the finding of the Tribunal.
6. For the reasons recorded above, the following order is passed.
6.1 The present appeal is dismissed as meritless with no order as to costs.
6.2 The amount lying in the FDR and/or with the Tribunal, the Tribunal shall pay the amount to the claimant with accrued interest within four weeks from the date of receipt of the copy of this order by following due procedure and by account payee cheque.
6.3 The record and proceedings be sent back to the concerned Tribunal forthwith.
(SANDEEP N. BHATT,J) MANISH MISHRA Page 7 of 7 Downloaded on : Fri May 20 20:56:12 IST 2022