Gujarat High Court
New India Assurance Co Ltd vs Latifsha Bhachalsha Shaikh on 8 December, 2021
C/FA/2911/2010 JUDGMENT DATED: 08/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2911 of 2010
With
R/FIRST APPEAL NO. 2912 of 2010
With
R/FIRST APPEAL NO. 2913 of 2010
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
================================================================
1 Whether Reporters of Local Papers may be allowed N
to see the judgment ?
2 To be referred to the Reporter or not ? Y
3 Whether their Lordships wish to see the fair copy N
of the judgment ?
4 Whether this case involves a substantial question N
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
NEW INDIA ASSURANCE CO LTD
Versus
LATIFSHA BHACHALSHA SHAIKH & 2 other(s)
================================================================
Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 1,2,3
================================================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 08/12/2021
ORAL JUDGMENT
1. The present first appeals are filed by the Insurance Company, against the judgment and award passed by the learned Motor Accident Claim Tribunal (Auxiliary) Kachchh at Bhuj in MACP No. 288, 289 and Page 1 of 8 Downloaded on : Wed Jan 12 08:08:01 IST 2022 C/FA/2911/2010 JUDGMENT DATED: 08/12/2021 290 of 1996 vide judgment and award dated 16.03.2010. The appellant-Insurance Company has filed the present appeal mainly on ground of liability i.e. since the claimants were the gratuitous passengers and therefore, they have challenged their liability to the extent.
2. Brief facts giving rise to the present appeal are as under:
2.1 On 14.04.1996 the deceased Amadsha Isabsha Shaikh along with two other persons went to Hajipir for the purpose of purchasing sheep and goats, while returning from the Hajipir the tempo reached near the air-force station at Bhuj the driver of the tempo driving the same in rash and negligent manner and loss the control over the tempo, the tempo turned turtled, as a result of which, the deceased Amadsha Isabsha Shaikh was died and the other two persons namely Latifsha Bhachalsha Shaikh and Alisha Amirsha Shaikh sustained serious injuries. Hence, the claimants have preferred the Motor Accident Claim Petition before the learned Motor Accident Claim Tribunal (Auxiliary) Kachchh at Bhuj for compensation. Considering the records and facts, while going through the paper book more particularly, the panchnama of the scene of accident at Exhibit - 29, it is evident that one sheep was lying there in dead condition and other 7 to 8 goats and sheeps (cattle) were also also died. The said tempo was found with the grass, which is kept for the purpose of grazing of the cattle.
3. Heard the learned counsel Ms. Lilu K. Bhaya for the appellant.
Though, the notice served upon the respondent, none appeared.
4. It is the contention of the learned advocate for the appellant- Insurance Company that the vehicle is goods vehicle and it is not used to carry the passengers in the goods vehicle and therefore, the deceased and the injured were gratuitous passengers and therefore, the Insurance Company cannot be held liable for the amount of Page 2 of 8 Downloaded on : Wed Jan 12 08:08:01 IST 2022 C/FA/2911/2010 JUDGMENT DATED: 08/12/2021 compensation. She has submitted that there is a breach of condition of the policy considering the provision of Section 149 read with Section 4 and 5 more particularly, the liability cannot be fasten against the Insurance Company.
5. It was submitted that the impugned judgment and award passed by the learned Tribunal is against the evidence on record and merits of the case. It was further submitted that, there was a clear violation of the condition of the insurance policy as the vehicle was not for hired. The deceased and the injured were traveling in the goods vehicle and therefore, the Insurance Company cannot be held liable and aught to have been exonerated. It is further submitted that it was specifically mentioned in the FIR that as there were more than five persons sitting in the tempo and the deceased has hired the tempo to go to Hajipir for the purpose of purchasing the sheep and goats. She has submitted that, this accident was occurred on 24.04.1996 after the amendment in the 1994 in the Motor Vehicles Act and in the amended provision no passengers or owners of the goods were permitted to travel in the goods vehicle. It was submitted that the Tribunal has committed an error in awarding the compensation holding the liability of the Insurance Company. In support of her arguments the learned counsel has placed reliance on the decision in the case of Mallava (Smt.) and Ors. Vs. Oriental Insurance Company Limited and Ors. reported in 1999 1 SCC Page-403 and another decision in the case of New India Assurance Company Limited Vs. Asha Rani and Ors. reported in 2003 AIR SC Page-607 and United India Insurance Company Limited Vs. Minor Mahesh Kanubhai reported in 2014 2 GCD Page- 1551. It was further argued that the question of law, if any, could be raised by the Insurance Company at the appellate stage then it can be permitted if it goes to the root of the case. On the subject the learned counsel for the appellant has further argued that the Insurance Page 3 of 8 Downloaded on : Wed Jan 12 08:08:01 IST 2022 C/FA/2911/2010 JUDGMENT DATED: 08/12/2021 Company cannot be held liable considering the above referred decisions and ratio laid down by this Court and the Hon'ble Apex Court in the case of Asha Rani and Ors.
6. Per contra, the case of the claimants was to the effect that they were sitting in the tempo as an owner of the goods as they have purchased the cattle from the Hajipir and while they were returning to Bhuj, the accident took place. It is evident from the panchnama that the sheeps found dead at the place of accident and the other sheeps and goats also died at the spot but they were not found at the place. The claimants have prayed to enhance the amount of compensation to the tune of Rs. 2,82,000/- in MACP No. 290 of 1996, Rs. 67,500/- in MACP No. 288 of 1996 and Rs. 38,325/- in MACP No. 289 of 1996.
7. The learned Tribunal framed the issues and after considering the evidence produced on record and the arguments advanced by the learned advocates for the respective parties was pleased to pass the award as aforesaid. The present appellant being aggrieved and dissatisfied with the aforesaid judgment and award has preferred present appeals.
8. Though the notice served upon the other side, no one is presence therefore, the present appeal is to be decided on the basis of the records and proceedings submitted to the Court. It is an admitted fact that the Tribunal has recorded the findings in favour of the original claimant. The deceased was traveling with the goods i.e. cattle in the tempo along with his engaged employee and therefore, the arguments made by the Insurance Company was turned down by the learned Tribunal and not accepted. The Insurance Company held liable while deciding the impugned claim petitions. It is observed by this Court in a case of Oriental Insurance Company Limited Vs. Galbiben Dosajibhai Manjibhai reported in 2009 GLHEL (High Court) 221029 Page 4 of 8 Downloaded on : Wed Jan 12 08:08:01 IST 2022 C/FA/2911/2010 JUDGMENT DATED: 08/12/2021 that, though the accident was occurred after the amendment, the liability of the Insurance Company was upheld by this Court. That, no different view taken by this Court. It is further observed in the case of Anu Bhanvara Etc. Vs. IFFCO Tokio General Insurance Company Limited reported in AIR 2019 SC Page-3934 and other unreported decision, considering the peculiar facts of the case, that the accident took place in 1996 and direction should be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle. That the claimant cannot be compelled to struggle further for recovery of the amount.
9. In view of the above, I am of the view that the present appeals are required to be allowed. That in the instance case also, the Insurance Company is directed to pay the compensation to the claimants and subsequently recover from the driver and owner of the vehicle in question.
10. Having considering the facts of the case and perusing the records of the Tribunal, this Court would like to refer the complaint produced at Exhibit-28 registered by the injured Latifsha Bhachalsha Shaikh and the averments made in the same by the complainant. This complaint was lodged at Taluka Police Station, Bhuj on 24.04.1996. As per the averments made in the complaint, he himself along with the deceased and one another persons returning from the Hajipir after purchasing the cattle i.e. sheep and goats they have hired the tempo of the ownership of the opponent No.2 and the said tempo was driven by the opponent No. 1 and insured by the opponent No. 3. While they were reached near the air-force station at Bhuj, the driver of tempo driving the vehicle in rash and negligent manner and loss control over the vehicle and turned turtled and persons sitting in the tempo were sustained injuries and due to that the deceased was died and the complainant and the other witness got injured in the accident. They were shifted to the hospital for Page 5 of 8 Downloaded on : Wed Jan 12 08:08:01 IST 2022 C/FA/2911/2010 JUDGMENT DATED: 08/12/2021 the further treatment. Exhibit-29 is the panchnama of place of accident. It clearly reveals from the fact that, the grass found in the tempo, one sheep was found dead in the tempo and surrounding area of place of accident, on the road, the bloodstains were found. The permit of goods carriage at Exhibit-32 is valid up to 29.08.1996, Exhibit-33 is the cover note of insurance policy, it is also valid for a period from 06.05.1995 to 05.05.1996. It was undisputed fact that the motor vehicle involved in the accident was goods vehicle. As per the complaint, the deceased after purchasing goods from Hajipir was returning to his home along with his attendants and labourers and they are owner of the sheep and goats. It is submission of the Insurance Company that the policy clearly provides use of carrying passengers in the vehicle as except the employees not exceeding six in numbers coming under the purview of the Workmen Compensation Act) use, only for carriage of goods within the meaning of the Motor Vehicles Act. From this condition it cannot be said that any passenger was permitted to travel in the goods vehicle. However, the case of the claimants is accepted that they were traveling as an owner of the goods, the condition imposed by the Insurance Company would not permit to travel any passengers except employees.
11. Considering the fact that the Insurance Company was not held liable as per the provision of Section 147 and 149 of the Motor Vehicles Act and the impugned judgment and award would require to be modified.
12. An order of pay and recovery of the amount of compensation can be passed against the Insurance Company by exercising the powers under Article 142 of the Constitution of India. This Court, in First Appeal No. 4149 of 2009 and 4150 of 2009 has taken a view relying upon the decision rendered in first appeal that the direction to pay the amount first and then to recover such amount can only be passed by the Hon'ble Apex Court exercising the powers conferred under Article 142 Page 6 of 8 Downloaded on : Wed Jan 12 08:08:01 IST 2022 C/FA/2911/2010 JUDGMENT DATED: 08/12/2021 of the Constitution of India to do the complete justice. That pay and recovery cannot be passed by any Court or Tribunal. Thus, it is clear that the pay and recovery order can only be passed by the Hon'ble Apex Court exercising the power under Article 142 of the Constitution of India and no other Court or Tribunal including the High Court can pass such order. Considering the view taken by this Court in different cases, no order of pay and recover can be passed against the appellant as admittedly, the respondents - claimants were traveling as an owner of the goods, in other words as gratuitous passengers.
13. In the case of National Insurance Company Limited Vs. Ratani and Ors. rendered in Civil Application No. 7399 of 2008 the victim of the accident was traveling in the truck as a gratuitous passenger and therefore, the Apex Court viewed that the Insurance Company would not be liable to pay the compensation to the claimants. The effect of the provisions contained in Section 147 with respect to the persons other than the owner of the goods or his authorized representative would remain in the same. Although the owner of the goods or his authorized representative would now be covered under the policy of insurance company and in respect of goods vehicle, it was never the intention of the legislator to provide that the liability of the insurer with respect to the passengers as especially gratuitous passengers, who were neither contemplated at the time of contract of insurance was entered into nor was any premium paid to the extent of benefit of insurance to such category of people. Therefore, in the facts and circumstances of the present case, this Court has no hesitation to hold that the claimants were traveling in the tempo as gratuitous passengers and in that view of the matter the appellant herein would not be liable to pay an amount of compensation.
14. In view of the aforesaid observation and discussion, the present appeals succeeds and are allowed accordingly. The impugned Page 7 of 8 Downloaded on : Wed Jan 12 08:08:01 IST 2022 C/FA/2911/2010 JUDGMENT DATED: 08/12/2021 judgment and award passed by the learned Tribunal is hereby modified to the extent as aforesaid and appellant-Insurance Company is hereby exonerated from paying the compensation to the original claimants, holding liability to pay the compensation of the original opponent No. 1 and 2 only. However, it is clarified that if any amount is withdrawn by the claimants from the Tribunal out of the amount deposited by the appellant-Insurance Company, shall not be recovered from the claimants. The rest of the part of the impugned judgment and award of the Tribunal shall stand satisfied and the amount, which is paid to the claimants at the first instance shall not be recovered from the claimants. It is open for the Insurance Company to recover the amount from the driver and owner of the vehicle in accordance with law. The impugned judgment and award of the Tribunal shall stand modified to the extent and in the terms as directed herein above. Record and proceedings be sent back to the concerned Court, forthwith. The rest of the part of the impugned judgment and award is unaltered.
Sd/-
(HEMANT M. PRACHCHHAK,J) T. J. Bharwad Page 8 of 8 Downloaded on : Wed Jan 12 08:08:01 IST 2022