Gujarat High Court
Oriental Insurance Co. Ltd vs Jivtabhai Mera Koli & 7 on 15 September, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/FA/2741/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2741 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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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 ?
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ORIENTAL INSURANCE CO. LTD.....Appellant(s)
Versus
JIVTABHAI MERA KOLI & 7....Defendant(s)
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Appearance:
MR KK NAIR, ADVOCATE for the Appellant(s) No. 1
MR.HIREN M MODI, ADVOCATE for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2 - 8
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 15/09/2015
ORAL JUDGMENT
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1. This appeal is filed by the Oriental Insurance Company Ltd challenging the judgement and award of the Motor Accident Claims Tribunal dated 9.3.2007 in MACP NO. 1863/1999.
2. The Claims Petition was filed by the husband and the minor children of deceased Hamiben who died in a vehicular accident which took place on 12.8.1999. The claimants sought compensation of Rs. 5 lacs from the driver, owner and insurer of the truck in which the deceased was travelling at the time of accident. The Claims Tribunal held the driver of the tractor solely negligent for causing the accident. Considering the fact that the deceased was involved in the labour work and she was aged about 36 years at the time of accident, the Claims Tribunal awarded compensation of Rs.3,85,000/ to the claimants. This award the insurance company has challenged particularly on the question of liability of the insurance company.
3. In order to appreciate this objection of the insurance company, facts can be seen a little more closer. On 12.8.1999 at about 6 O' clock in the evening deceased Hamiben was travelling in a tractor trolley driven by the opponent. Her son was accompanying her. According to the claimants, the tractor was being driven at an excessive speed and rather rashly. In the process, Hamiben fell down on the road and wheel of the tractor ran over her causing her death. The Claims Tribunal accepted this version of the claimants and held that the accident occurred due to the sole negligence of the driver. The insurance company Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu Sep 17 01:39:54 IST 2015 C/FA/2741/2007 JUDGMENT argues that the deceased being a passenger in the tractor, the driver committed breach of the terms of the policy which would absolve the insurance company from the liability covering the risk.
4. Learned counsel for the insurance company pointed out that the Claims Tribunal did not devote any discussion to this objection in the impugned award. He further submitted that the counsel for the insurance company in its written arguments exh.43 has raised such a contention and also cited several authorities. The contention of the authority were both ignored by the Claims Tribunal. Counsel relied on the decision of Division Bench of this Court dated 7.2.2012 in case of National Insurance Co. Ltd. v. Smitaben wd/o Bhogilal Jiagjivandas Gadhia and others passed in First Appeal No. 2214/1999, in which such a contention was allowed at the appellate stage observing that the question presented was a pure question of law and therefore, could be raised for the first time even at the appellate stage.
Learned counsel relied on the decision of Learned Single Judge in case of New India Assurance Co. Ltd. v. Heirs & L.RS of Decd. Pravinsinh Ranubha Zala reported in 2013 (2) GLR 1580 to contend that this cannot be termed as an accident to a third party but it is a case where gratuitous passenger carried in a tractor received fatal injuries.
5. On the other hand, learned counsel Shri Modi for the claimants firstly contended that the Insurance company Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu Sep 17 01:39:54 IST 2015 C/FA/2741/2007 JUDGMENT never raised any such dispute before the Claims Tribunal. It was the duty of the Insurance company to establish breach of policy if that was its case. Counsel also relied on judgement of Supreme Court in case of New Indian Assurance Company Ltd. v. Darshana Devi reported in 2008(2) SCALE 432. He further submitted that Learned Single Judge of this Court in case of United India Insurance Co. Ltd. v. Kalabhai Bachubhai Parmar by judgement dated 24.9.2014 passed in First Appeal No.2332/2007, in similar circumstances held that the deceased cannot be considered as gratuitous passenger since he was run over by trolley of the tractor after he had fell down and therefore, would be a third party. The Insurance company would be liable to cover the risk.
6. Having thus heard learned counsel for the parties and having perused the evidence on record, the first question arises whether the Claims Tribunal ought to have absolved the insurance company of its liability. In this background, one may notice that in the written statement exh.16, the insurance company raised no such defence. In fact, the full insurance policy was also not produced though one page insurance slip was on record. Obviously, therefore, in absence of such defence by the Insurance company, the Claims Tribunal did not raise any corresponding issue. The Tribunal raised only two points namely, whether the claimants prove that the deceased sustained injuries and died due to such injury which were received in an accident caused by rash and negligent driving by the driver of the tractor during his employment with the opponent no.2 owner and whether the claimants prove that they are Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Sep 17 01:39:54 IST 2015 C/FA/2741/2007 JUDGMENT entitled to receive compensation for opponent or any of them? If yes what amount? Thus the question of liability of the Insurance company was never raised nor disputed before the Claims Tribunal. Obviously therefore, the Claims Tribunal had no opportunity to lead any evidence in this respect. Even the cross examination of the claimants' witness exh.32 did not contain any reference to this aspect of the matter. The Insurance Company did not examine any witnesses. Primarily it would be the duty of the Insurance company to plead and prove a case of any breach of terms of the policy which would enable the Insurance company to avoid its liability. This was precisely what was held by the Supreme Court in case of Fahim Ahmad & ors. v. United India Insurance Co. Ltd. & ors. reported in AIR 2014 Supreme Court 2187 observed as under :
"8. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidence led to prove the same. In our opinion, it was mandatory for respondent No. 1Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy."
7. In case of Smitaben wd/o Bhogilal Jiagjivandas Gadhia and others(supra), short question was whether the policy which was already on record was a limited policy covering only statutory risk. It was in this background the question was allowed to raise for the first time in an appellate stage.
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C/FA/2741/2007 JUDGMENT
8. The Tribunal was therefore, perfectly justified in not making any observations with respect to the liability of the Insurance company. Mere contention that for the first time in the written statement without any attempt on part of the Insurance company to lead evidence and to put the claimants to notice about its opposition, would not be sufficient.
9. In view of above discussions, I am not inclined to consider whether this accident can be stated to have caused death of a gratuitous passenger or a third party. Issue requires closer scrutiny and may be made in an appropriate case. Very little has been argued before me with respect to quantity of compensation. In any case, I do not find any reason to interfere on this count. Reliance in this respect can be made to decision of the Supreme Court in case of Kishan Gopal and another v. Lala and others reported in (2014) 1 Supreme Court Cases 244 in which in case of death of a boy aged ten years, where accident took place in 1992, adopting notional income, compensation of Rs.5,00,000/ was awarded.
10. In the result, First Appeal is dismissed.
R&P be sent back to concerned trial Court.
(AKIL KURESHI, J.) raghu Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu Sep 17 01:39:54 IST 2015