Gujarat High Court
Surajben Raysingbhai Parmar L.H. Of ... vs Ramsangbhai Udesangbhai Parmar on 23 July, 2024
NEUTRAL CITATION
C/FA/3871/2018 ORDER DATED: 23/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3871 of 2018
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SURAJBEN RAYSINGBHAI PARMAR L.H. OF DECD. RAYSINGBHAI
SHANKARBHAI PARMAR & ANR.
Versus
RAMSANGBHAI UDESANGBHAI PARMAR & ORS.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/07/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant/s - original claimant/s - legal heirs of the deceased - Raysangbhai Sankarbhai Parmar, being aggrieved and dissatisfied with the judgment and award dated 27.06.2018 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara in Motor Accident Claim Petition No.64 of 2008, by which the Tribunal has awarded compensation of Rs.4,21,000/- with 9% per annum interest to the claimant/s, holding opponent Nos.1 and 2 liable, jointly and severally, by exonerating the opponent No.3 from its liability.
2. Brief facts of the case as per the case of the claimants are as under:
2.1 On 22.04.2007, the husband of the appellant no.1 namely Page 1 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined Raysangbhai Shankarbhai has hired one Tempo No. GJ-16-X-1966 for transport his goods from Ankaleshwar to Dhuvaran by fixing rent of Rs. 1,500/-. It is submitted that the respondent no.1 was driving said, in rash and negligent manner and due to excessive speed, he lost control over the tempo and it was turn turtle on the road. It is submitted that due to the accident, the deceased sustained serious bodily injuries and died.
2.2 Therefore, the legal heirs of the deceased have filed claim petition seeking compensation of Rs.5 lakhs with cost and interest for unnatural and untimely death against the present respondents before the Tribunal.
2.2 Notices were served to the opponents. Opponents No.1 and 2 have appeared and filed reply at Exh.10. Opponent No.3 - Insurance Company has also appeared and has filed its written statement / objections at Exh.14. They have disputed disputing all the averments made by the claimant/s in the claim petition.
2.3 Issues have been framed by the Tribunal. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.
2.4 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by the claimant/s for enhancement.Page 2 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024
NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined 3.1 Learned advocate the appellants - claimants has submitted that the Tribunal has committed error in exonerating the insurance company from its liability to pay the amount of compensation, while passing the impugned judgment and award. It is submitted that the Tribunal has erred in referring the provisions of Section 147 of the Motor Vehicles Act and misinterpreting the documentary evidence such as F.I.R. produced at mark 20/1 and also misinterpreting the decision of the Hon'ble Apex Court in the case of M/S. National Insurance Co. Ltd vs Baljit Kaur And Ors. reported in Civil Appeal No.16 of 2004. It is further submitted that due to unavoidable circumstances, the claimants could not have produced the F.I.R. on the record. Hence, he has submitted that order of pay and recover is required to be passed in the facts and circumstances of the present case. He has relied upon the decision of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. vs. Chamundeswari and Others reported in 2021 ACJ 2558, and decision of this Court in First Appeal No.1351 of 2006 and other allied matters dated 27.06.2024. In view the above, he has submitted that appropriate order may be passed by directing the respondent No.3 - insurance company to first pay the amount of compensation, and thereafter, recover from the opponents.
3.2 On the ground the quantum, he has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. It is submitted that amount of award is on lower side as the Tribunal has not properly considered the various aspects; like income of the deceased, loss of consortium, estate and funeral expenses, and family circumstances, etc. It is submitted that the deceased was agriculture and animal husbandry work and Page 3 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined earning Rs.3,000/- per month. Considering the nature of the work and taking into account the minimum wages prevailed in the year 2007, Rs.3,000/- is required to be considered. Therefore, the Tribunal ought to have considered Rs.3,000/- per month income of the deceased. He has relied upon the decision of the Hon'ble Apex Court in the cases of (i) Sarla Verma versus Delhi Transport Corporation reported in (2009) 6 SCC 121, (ii) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130 (iii) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and
(iv) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780. It is further submitted that the deceased was married and therefore, he has left the dependents in the family behind him. Therefore, the Tribunal has committed error by not properly awarding compensation under the head of loss of consortium. In view of the above decisions, loss of estate and funeral expenses may be awarded, which is on the lower side. It is submitted that under other heads except above, the Tribunal has rightly considered the amount of compensation. It is submitted that the compensation is required to be enhanced by modifying the award impugned accordingly and this appeal may be allowed.
4. Per contra, learned advocate for contesting respondent No.3 - insurance company has submitted that the impugned judgment and award passed by the Tribunal is just and proper. The Tribunal has taken into consideration all the relevant aspects, more particularly, the conduct of the claimants. It is submitted that the claimants have deliberately not produced the copy of the F.I.R. on the record. He has Page 4 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined drawn my attention by reading the F.I.R., whereby it transpires that the F.I.R. is registered by Ramanbhai Parshottambhai Parmar, and at that point of time, he has stated that he along with his brother was going in tempo on 21.04.2007. At that point of time, other passenger has also taken seat in the tempo and accordingly, they were going together to give gift to someone of maternal side (mosada), and at that point of time, the tempo has turned turtle. Furthermore, he has submitted that the articles, which are found in tempo, are not of the deceased, but some other person was travelling in tempo with those articles. Hence, the claimants have tried to suppress the material fact from the Tribunal, and also no amount of premium has been paid by the owner by pointing out the extract from policy, whereby for legal liability for non-paying passenger i.e. regarding owners of goods, no amount has been paid. Hence, he has submitted that on bare reading of the F.I.R. as well as policy, the case of the claimants is with a view to getting money by way of compensation from insurance company by suppressing the material fact, which is required to be rejected. He has relied decision of the Hon'ble Apex Court in the cases of (i) National Insurance Company Limited vs. Savitri Devi reported in 2013 (11) SCC 554, more particularly, paragraphs 9 to 12 are relevant, (ii) Balu Krishna Chavan vs. Reliance General Insurance Company Ltd. and Ors. reported in 2022 LawSuit (SC) 1542, more particularly, paragraphs 8, 9 and 13 are relevant. He has also placed reliance upon the decision of the Division Bench of this Court in (i) First Appeal No.2441 of 2009 dated 09.08.2019, more particularly, paragraphs 10, 11, 13 to 16 are relevant, (ii) National Insurance Company Ltd. vs. Sumitra Ben Mangabhai Vasava and Others reported in 2016 LawSuit (Guj) 293, more particularly, paragraphs 3, 6 to 9 are relevant, and Page 5 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined has submitted that only Hon'ble Apex Court can pass the order of pay and recover, and therefore, he has prayed to dismiss the present appeal as no case is made out. Furthermore, once the ground of quantum, the Tribunal has rightly considered the income of the deceased. On the aspect of quantum, it is submitted that under the head of loss of estate and funeral expenses, the Tribunal has rightly awarded compensation. It is also submitted that under the head of loss of consortium, the Tribunal has considered proper compensation. However, from the submissions made by learned advocate for the appellant/s that the Tribunal has committed certain errors, on this aspect, learned advocates for the respondent/s has submitted that if this Court feels that there is some error in calculation of the amount in view of settled position of law, in awarding compensation by the Tribunal, then the Court may pass appropriate order by considering the submissions made by learned advocate for the appellant/s, in the interest of justice. It is submitted that this appeal may be dismissed and no interference be made by this Court.
5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.
Page 6 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined 6.1 I have considered the submissions made by the rival parties. I
have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. It transpires from the materials available on the record that there is no dispute about the fact that the claimants are travelling in tempo, and they are going with their gods to masada for giving gifts, and the articles were like cupboard, kitchen goods. At that point of time, the accident occurred. There is no dispute about the fact that the claimants have not produced the F.I.R. on the record. However, from the Panchnama, it is found that the utensils are found from the place of accident including the cupboard. It clearly reveals from the inquest panchnama at Exh.24 and P.M. Note at Exh.25 that deceased died due to accident. The Panchmana of the place of the accident at Exh.23 indicates that at the time of accident, the goods are found from the place of accident. The Tribunal has found that merely in view of reading of the F.I.R., it is not clearly established that whether the goods are found as per Panchnama is of the deceased or of somebody else. Therefore, the Tribunal has found that it cannot be held that the deceased was going as owner of the goods in the said tempo. Moreover, the Tribunal has also found that no extra premium is paid for owner of the goods of the vehicle.
6.2.1 Furthermore, it is fruitful to refer the decision of this Court relied by learned advocate for the appellant in First Appeal No.1351 of 2006 and other allied matters dated 27.06.2024, whereby it transpires that this Court has, after considering various decision, come to the conclusion that the amount is required to be paid by the insurance company first to the claimant/s and thereafter, Page 7 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined it is open for the insurance company to recover the said amount from the owner of the vehicle. Paragraph Nos.10 to 16 of First Appeal No.1351 of 2006 and other allied matters dated 27.06.2024 is relevant, as under:
"10. Now, as regards the main grievance of the appellant- insurance company with regard to the impugned award to pay to the claimants first and then recover the same from the insured, the submissions made by learned advocate Ms.Pathak for the appellant that the said order can only be passed by the Hon'ble Apex Court and not by the subordinate courts cannot be accepted in view of the fact that the Hon'ble Apex Court has laid down certain guidelines in the case of National Insurance Company Ltd. V/s Swaran Singh and Others reported in (2004)3 SCC 297, in which it is held in paragraph 110 as under:
"Summary of findings
110. The summary of our findings to the various issues as raised in these petitions is as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of the driver Page 8 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable Page 9 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the Page 10 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-
section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.
(xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
11. Further, in the case of Khenyel V/s New India Assurance Company Limited and others reported in (2015)9 SCC 273, it is held by Hon'ble Supreme Court in paragraph 20 as under:
"20. This Court in Challa Upendra Rao [(2004) 8 SCC 517 : 2005 SCC (Cri) 357] and Nanjappan [(2004) 13 SCC 224 : 2005 SCC (Cri) 148] has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the Tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the Tribunal and the issue has been decided in favour of the insured."
12. In the case of Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, it is held in paragraphs 12 to 14 as under:
"12. The above reference in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) Page 11 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined 568 : (2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National Insurance Co. Ltd. v. Parvathneni, (2018) 9 SCC 657] by the three-Judge Bench keeping the questions of law open to be decided in an appropriate case.
13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 :
2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment [Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.
14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224 : 2005 SCC (Cri) 148] Page 12 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined wherein this Court held that : (SCC p. 226, para 8) "8. ... For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."
13. In the case of Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796, it is held in paragraphs 11 to 16 as under:
"11. In reply, the learned counsel for the respondents (insurance companies) supported the impugned order and contended that no case is made out to interfere in the impugned judgment. It was his submission that once it is held and rightly that the insurance company is not liable because the victims were travelling in the offending vehicle as "gratuitous passengers", there did not arise any occasion to pay the awarded sum to the claimants by the insurance company and nor the principle "pay and recover" could be applied against the insurance company in such circumstances thereby making them liable to pay the awarded sum to the claimants.
12. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned counsel for the appellants (claimants).
13. The only question, which arises for consideration in these appeals, is whether the appellants are entitled for an order against the insurer of the offending vehicle i.e. (Respondent 3) to pay the awarded sum to the appellants and then to recover the said amount from the insured (owner of the offending vehicle Tata Sumo) Respondent 1 in the same proceedings.
Page 13 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined
14. The aforesaid question, in our opinion, remains no more res integra. As we notice, it was the subject-matter of several decisions of this Court rendered by three-Judge Bench and two-Judge Bench in the past viz. National Insurance Co. Ltd. v. Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] , National Insurance Co. Ltd. v. Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] , National Insurance Co. Ltd. v. Kaushalaya Devi [National Insurance Co. Ltd. v. Kaushalaya Devi, (2008) 8 SCC 246 : (2008) 3 SCC (Cri) 467] , National Insurance Co. v. Roshan Lal [National Insurance Co. Ltd. v. Roshan Lal, (2017) 4 SCC 803] and National Insurance Co. Ltd. v. Parvathneni [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] .
15. This question also fell for consideration recently in National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment [Saju P. Paul v. National Insurance Co., 2011 SCC OnLine Ker 3791 : 2012 ACJ 1852] of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".Page 14 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024
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16. R.M. Lodha, J. (as his Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under : (Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] , SCC pp. 52 & 55) "20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could 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 (Respondent 2 herein).
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26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 [National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41, 55 (footnote 14)] ] and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The Page 15 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] ."
14. In the judgment in the case of Shivaraj V/s Rajendra and another reported in 2018 ACJ 2755, the Hon'ble Apex Court has held in paragraph 10 as under:
"10. At the same time, however, in the facts of the present case the High Court ought to have directed the insurance company to pay the compensation amount to the claimant(appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this court in National Insurance Co.Ltd. V.Swaran Singh, 2004 ACJ 1(SC); Mangla Ram v.Oriental Insurance Co.ltd., 2018 ACJ 1300(SC); Rani v.National Insurance Co.ltd., 2018 ACJ 2430(SC) and Manuara Khatun v.Rajesh Kumar Singh, 2017 ACJ 1031 (SC). In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2, Appellant may, therefore, succeed in getting relief of direction to respondent No.2 insurance company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1)."
15. The above decisions still hold the field and therefore, the learned Tribunal has rightly passed the impugned award. The judgments cited by learned advocate Ms.Pathak cannot be made applicable to the facts of these cases as the facts are different. The Hon'ble Apex Court as well as this Court, in numbers of decisions, has passed the order of `pay and recover'.
16. The manifest object of the provisions of the MV Act is to ensure that the party, who suffers injuries due to the use of the motor cycle, and may be able to get the damages for the injuries Page 16 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined sustained/death. If the goods vehicle is used for carrying the passengers, against the insurance policy, as is in the case on hand, the claimants cannot suffer for the technicalities of whether the owner/insurance company should pay the amount. As the vehicle is insured with the insurance company, the insurance company shall first pay the compensation and it is for the insurance company to recover from the owner, if it so wishes. The same order is passed by the learned Tribunal and the interest of the insurance company is secured, in this case, which is just and proper and not required to be interfered with."
6.2.2 It is also fruitful to refer the decision of the Hon'ble Apex Court in the case of Chamundeswari and Others (supra), more particularly, paragraph No.8 is relevant. In this decision, the evidence, which is produced before the Tribunal runs contrary to the F.I.R., and the Apex Court has held that the evidence, which is available on the record by way of oral evidence or other mode is required to be given more weight-age than the other. Relevant paragraphs is as under:
"8. It is clear from the evidence on record of PW-1 as well as PW-3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW-1 & PW-3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW-1 herself travelled in the very car and PW-3, who has given statement before the police, was examined as eye-witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Page 17 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellant's counsel in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others1, this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and Others v. Oriental Insurance Company Limited2, this Court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, framed under Motor Vehicles Act, 1988. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case."
6.2.3 Considering the submission of Mr. Modi, learned advocate for the appellant that in the above-mentioned proceeding, the position of law emerges, and against that for considering the submission of Mr. Nanavati, it is fruitful to refer the decision of the Hon'ble Apex Court in the case of Savitri Devi (Supra), more particularly, paragraphs 9 to 12 are relevant, as under:
"9. The specific case of the claimants was that the barat was being taken in the said open truck on 12.11.1996 when the accident had taken place. Thus, according to us, it clearly violates the terms and conditions of the policy.
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10. Dealing with similar circumstance, this Court has held in ACJ 2005 (2) 721 titled as "National Insurance Company Ltd. v. Bommithi Subbhayamma and others" as under:
8. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in 5 respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.
9. The same view was reiterated in National Insurance Company Ltd. v. Challa Bharathamma, 2004 ACJ 2094 (SC), Pramod Kumar Agrawal v. Mushtari Begum, 2004 ACJ 1903 (SC) and also in National Insurance Company Ltd. v. v.
Chinnamma, 2004 ACJ 1909 (SC).
10. In view of the aforementioned authoritative pronouncements of this Court, the impugned judgment of the High Court cannot be sustained which is set aside accordingly. This Appeal is allowed. We. however, make it clear that the claimants-respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Vehicle Accidents Claims Tribunal from the owner of the vehicle. No costs.
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11 Similar view has been reiterated in (2009) 2 SCC 75, titled as "National 35 Insurance Company Limited v Rattani and others", paragraph 14 and 15 of which are reproduced hereunder:
14. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.
15. As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the Appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose.
12. In the light of the aforesaid judgments, we have no doubt in our minds that the impugned judgment and Order of the learned Single Judge dated 28.7.2005 cannot be sustained. The same is hereby set aside and quashed. No liability can be fastened on the Appellant- Insurance Company. The appeals of the Appellant- Insurance Company are allowed to this extent. However, it is clarified that if any amount has already been paid by the Insurance Company, it shall not be permissible for it to recover the amount from the claimants. It is also clarified that the claimants, in any case, would be entitled to recover the balance amount of the compensation awarded to them vide impugned judgment and Order of the learned Page 20 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined Single Judge dated 28.7.2005 from the estate of the deceased owner. The appeals are allowed to this extent. The award and the finding of the learned Single Judge fastening the liability on the Appellant-Insurance Company is set aside."
6.2.4 It is also fruitful to refer the decision of Division Bench of this Court in First Appeal No.2441 of 2009 dated 09.08.2019, more particularly, paragraphs 10, 11, 13 to 16 are relevant, as under:
"10. The panchnama was produced on record vide Ex. 51, which shows exact place of the accident. A motor vehicle, bearing registration No. GJ-3-Y-6742, was also found at the place of accident in damaged condition. Material evidence Ex. 52 is the policy document issued by the present appellant insuring the motor vehicle, bearing RTO registration No. GJ3-Y-6742, involved in the accident. As per contents of the policy, there is limitation as to the use of motor vehicle. It is stated that no passengers were authorized to seat or travel in the said vehicle. As per terms of the policy, it being a "goods carrying commercial vehicle (Open) Policy-B- ackage". Undisputedly, Utility Jeep involved in the accident can be said to be a "commercial vehicle" and not for carrying the passengers. However, it is the say of claimants in his examination- n-chief that the deceased was travelling in the motor vehicle, bearing RTO registration No. GJ-3-Y-6742, as an owner of the goods was not permitted to travel in the said vehicle as a passenger.
11. In the panchnama Ex. 51 of the scene of accident, no goods were found. RC book of the Utility jeep was produced vide Ex. 55 showing sitting capacity which includes driver plus 2=3. From the policy, it appears that the vehicle insured with the appellant- nsurance Company was a commercial vehicle for carrying the goods and not for carrying the passengers.
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13. Here, deceased Bhanuben was travelling with some utensils in a motor vehicle involved in the accident on 11.10.2005. Thus, she cannot be strictly said to be "owner of the goods", as per policy issued by the present appellant. However, this Court cannot deny the fact that she was travelling with utensils from Jamnagar on the day of accident and such utensils were purchased by her to distribute the same to the participants of a Garba Association. In the crossexamination of claimant, he has given his evidence, as made in the examination-in-chief. Thus, the Tribunal concluded on wrong decision, holding liability of the present appellant to pay compensation to the claimants, as the deceased was travelling in a vehicle, was a commercial vehicle, permitted to carry "the goods".
14. Here in such a situation, this Court would like to refer to the judgment of the Apex Court in case of Shivraj vs. Rajendra, reported in 2018(10)SCC 432, wherein the appellant travelled in a tractor as a passenger even though tractor could accommodate only one person namely driver. Insurance Company was not held liable for loss or injuries suffered by appellant or even to indemnify owner of the tractor. However, in facts of the case, Apex Court held that High Court ought to have directed Insurance Company to pay compensation amount to claimant (appellant) with liberty to recover the same from owner of the tractor, and accordingly, insurance company was directed to pay compensation with liberty to recover from owner of the tractor.
15. Here also, as per the facts that the deceased Bhanuben was traveling with certain utensils in the motor vehicle as passenger, which was breach of the policy condition, as jeep was insured for commercial carrying goods purpose and not for passenger. The deceased undisputebly was travelling in a Utility jeep as passenger, even though the jeep can accommodate only three persons including the driver. As a result, the present appellant would not be Page 22 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined liable for the loss whichever suffered by the claimants or to indemnify the owner of the Jeep. The conclusion reached by the Tribunal, in our opinion, is unbelievable in the facts and circumstances of the present case. At the moment, however, in the facts of this case, the Tribunal ought to have directed the Insurance Company to pay compensation amount to the claimants with a liberty to recover the same from the jeep owner, in view of the consistent view taken in that regard by Hon'ble Apex Court in case of National Insurance Co. Ltd. v. Swarma Singh & Ors., 2004 3 SCC 297; Mangla Ram v. Oriental Insurance Co. Ltd., 2018 5 SCC 656, Rani & Ors. v. National Insurance Co. Ltd. & Ors., 2018 9 SCALE 310 and including Manuara Khatun and Others v. Rajesh Kumar Singh and Others, 2017 4 SCC 796.
16. In view of the above, the Appeal is partly allowed, as the appellant is not held liable to pay compensation as held by the Tribunal. However, in peculiar facts of the case, the appellantInsurance Company to pay the compensation amount determined by the Tribunal in the first place and with liberty to recover the same from the owner of the Jeep, bearing RTO registration No. GJ-3-Y-6742 (respondent No.5) in accordance with law. Appellant need not to file any separate Civil Suit for recovery of the compensation amount from the original owner. Registry is directed to send back record and proceedings to the Tribunal."
6.2.5 In light of the above decision of the Division Bench of this Court, it clearly evident that the Division Bench of this Court has also directed to pay first the amount by the insurance company to the claimant and thereafter, recover from the opponent.
6.2.6 It is fruitful to refer the decision of the Co-ordinate Bench of this Court, which is relied by learned advocate Mr. Nanavati in the case of Sumitra Ben Mangabhai Vasava and Page 23 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined Other (Supra), more particularly, paragraphs 3, 6 to 9 are relevant, as under:
3. Learned Advocate Mr.H.G. Mazmudar, for the appellant has submitted that once learned Tribunal has found that all persons travelling in said goods carriage vehicle at time of accident were passengers travelling in tempo in order to attend marriage party, then as per the provisions of Section 147 of Motor Vehicles Act and as per the decision of the Honourable Apex Court in the case of "New India Assurance Company Ltd. V/s Asha Rani"
reported in (2003) 2 SCC 223 as well as in the case of "National Insurance Co. Ltd. V/s Rattani" and others reported in (2009) ACJ 925, the appellant insurer of said goods carriage vehicle could not have held liable to pay compensation and more particularly, he has placed reliance upon Rattani (supra) in para Nos.5,6,7,8.12,13, and 14 which reads as under:
"5. Separate claim petitions were filed by the heirs and legal representatives of the deceased as well as by the injured before the Motor Vehicles Claims Tribunal, Bhiwani.
In the claim petition in question, the relevant portion of the claim form was filled up as under :
"Was the person in respect of the whom compensation is claimed, traveling in the motor vehicle involved in the accident, if so, give the name of station and start of journey and its destination?
Yes, the deceased Sunil Kumar alongwith others was traveling as a Barati in the Tata 407 being driven by the respondent no.1 and they were returning after attending the marriage function from village Jharli to Kusumbi."
Against the column `cause of accident with brief descriptions' it was stated:
Page 24 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined "Brief facts of the accident are that the deceased Sunil Kumar alongwith others was traveling in the capacity as Barati in Tata 407 in question and after attending the marriage function were returning from Jharli to village Kusumbhi in the Tata 407 which was being driven by the respondent no.1. The vehicle was being driven rashly, negligently and at a very high speed and inspite of warning to the respondent no.1 to drive the vehicle slowly the respondent no.1 continued driving rashly and negligently and on 15.5.2002 at about 6.30 PM when the vehicle after crossing Railway Phatak of Dhalwas and were going towards Sehlanga due to rash and negligent driving of respondent no. 1, the respondent no.1 lost control on the vehicle resulting to turn turtle and several persons suffered grievous injuries and deceased Sunil and one Photographer named Hazari died at the spot. On the statement of Rameshwar son of Akhey Ram, r/o. Mundhal Khurd, one of the eye witness and traveling as Barati FIR No. 98 dated 16.5.2002 was lodged against the respondent No.1, which contains the detailed manner of accident how it took place and be read as part of this petition. The respondents being the driver, owner and insurer, are jointly and severally liable to pay compensation to the petitioners."
6. As a reference has been made to the first information report bearing No. 98 dated 16th May, 2002, which was lodged against the driver, first respondent in the claim petition, we may also notice the relevant portion of the contents thereof from the award of the Tribunal.:
"...He referred to the contents of FIR Ex. P2 wherein it is mentioned that all the members of marriage party were the occupants of the four wheeler and there was no mention that dowry articles or some furniture etc. were loaded in the Page 25 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined vehicle."
7. We are not oblivious of the fact that ordinarily an allegation made in the first information would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently the appellate courts would be entitled to look into the same.
8. However, in their depositions, the claimants raised a new plea, namely that the deceased and the other injured persons were travelling in the said truck as representatives of the owner of the goods.
12. Even if the submission of Mr. Subramonium Prasad that in the truck the goods offered by way of gift by the bride party were being transported is correct, the deceased and others could not have become the representatives of the owner of the goods. Even otherwise in view of the averments made in the claim petition and the first information report the said contention cannot be accepted.
Furthermore in their depositions the witnesses examined on behalf of the claimants themselves stated that about 30 40 persons were travelling in the tempo truck. All 30 40 persons by no stretch of imagination could have been the representatives of the owners of goods, meaning thereby, the articles of gift.
13. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are Page 26 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers. As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose.
14. An admission made in the pleadings, as is wellknown, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the insurance company was liable.
Reliance placed by the learned counsel on a decision of this Court in National Insurance Co. Ltd. v. Baljit Kaur and Others [(2004) 2 SCC 1] is misplaced. The question which arose for consideration therein was as to whether the words "any person" shall include a gratuitous passenger despite the amendment made in Section 147 of the Act by reason of the Motor Vehicles (Amendment) Act, 1994.
Following New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223], it was categorically held:
"20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of Page 27 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined the goods or his authorized representative remains the same. representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people."
In National Insurance Co. Ltd. v. Cholleti
Bharatamma and Others[(2008) 1 SCC 423], this Court
categorically held:
"27. The learned counsel appearing for the respondent, submitted that from the aforementioned finding, it is evident that the respondent was travelling as the owner of the goods. We do not think that the said submission is correct. PW 2, in his evidence, stated:
"I am doing tamarind business. I witnessed the accident which took place about 3 years back at about 6 a.m. at Borrampalem junction beyond Talluru. At the time of the accident I was in the crime lorry by the side of the driver. Myself and 6 others were carrying tamarind in that lorry belonging to us. We boarded the lorry along with our load of tamarind at Dharamavaram to go to Rajanagaram. We were selling the tamarind at Rajanagaram in retail by taking the tamarind there in our lorry from our village of Dharamavaram."
28. The Tribunal, therefore, correctly recorded that according to PW 2, he was travelling with his goods as owner thereof and not the deceased." We, therefore, in the Page 28 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined facts and circumstances of the case, have no hesitation to hold that the victims of the accidents were travelling in the truck as gratuitous passengers and in that view of the matter, the appellant herein was not liable to pay the amount of compensation to the claimants."
6. Heard learned advocate for the respective parties at length and considered submissions advanced by all the advocates. The common question which arise for consideration of this Court in these batch of appeals is as to whether learned Tribunal is justified in law by directing appellant insurance company to pay compensation to claimants and then to recover it from its insuredowner of goods carriage vehicle No.GJ9V1639? 7. The issue involved in these appeals is no more res integra. It is by now well settled legal position of law that once learned Tribunal founds a person travelling in goods carriage vehicle as passenger and not as an owner of goods or its representative, in such situation, insurer of goods carriage vehicle is not liable to pay compensation and learned Tribunal cannot fasten the liability upon the insurer to pay compensation and then to recover it from its insured. On going through the particulars of the policy, it is noticed that no additional premium is being levied by the Insurance Company for coverage of risk of any passenger travelling upon the vehicle involved in the accident. The risk of passenger travelling in goods carriage vehicle is not covered under Motor Vehicle Act, 1988. The Act has not envisaged risk of passenger to be covered under Section 147 of the said Act and law in this regard has been declared by the Honble Apex Court in a case of Asha Rani (supra) and reiterated in other decisions. It is an admitted fact that injured claimants were travelling as passengers in order to attend marriage party from Kundiamba to Navagam in the said goods carriage vehicle insured with the appellant insurance company. This fact is clearly forthcoming even from the respective petitions which came to be Page 29 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined filed by the claimant wherein they have clearly mentioned that they were travelling upon the aforesaid Tempo as passengers to attend the marriage party alongiwth their goods. The same fact have been narrated in their respective affidavits which came to be filed during the course of adducing oral evidence. In the cross examination, all claimants have admitted that they were passengers who were were travelling upon the aforesaid goods carriage in order to attend the marriage party.
8. FIR produced at Exh:49 also discloses that soon after the accident one Navalbhai Vasva resident of Navagam, Taluka Dediapada, District Narmada, lodged complaint before the Police indicating that the marriage of his son Suresh was scheduled on 24th May, 1998, and he had hired tempo No.GJ9V1639 for attending marriage party at Navagam. While they were travelling upon the aforesaid tempo, the driver was driving in a very hectic speed and in the result, tempo turned turtle and they sustained injuries.
9. In view of the aforesaid factual position and in light of the pleadings came to be made by the respective claimants, and in light of the affidavit filed by the respective claimants, this Court is of the opinion that the appellantInsurance Company is not liable to pay compensation and the learned Tribunal has committed error of law in directing the appellant Insurance Company to deposit the awarded amount and then to be recovered from its insuredowner of the goods carriage vehicle."
6.2.7 Considering the above, though the Tribunal has considered that some goods are found from the place of accident, but that goods whether belongs to deceased or not is not clearly established. Moreover, the Tribunal has also found that in the policy, no premium has been paid towards towards risk of passenger with Page 30 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined goods. Moreover, from the reading of F.I.R., the Tribunal has found that different story is emerging from the claim petition. Therefore also, the Tribunal has found that the insurance company cannot be saddled from the liability to pay the amount of compensation.
6.3 This finding is otherwise found attractive, but considering the fact that the goods are found from the Panchnama and taking into account the oral evidence on behalf of claimants, no contrary material is available on the record, which establishes that the deceased was going in tempo as owner of the goods. On the contrary, from the pleadings of the parties, it transpires that the deceased, his brother along with some other relatives were going in tempo to attend some function in maternal side and they were carrying the gift to give in matrimonial (maosada). Therefore, it cannot be said that the case of the claimants is not established to that extent.
6.4 Considering the fact that even, the Division Bench of this Court found that though the insurance company cannot be held liable to pay the amount of compensation jointly and severally, however, the Court has also consider this aspect by directing the insurance company first pay the amount to the claimants and thereafter, recover the same from the owner of the vehicle without filing execution as per the decision of the Hon'ble Apex Court.
6.5 It is also required to be noted the decision cited by Mr. Nanavati, whereby the Division Bench has also held that the insurance company first pay the amount and then recover the same from the opponent.
Page 31 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined 6.6 In the present case, more particularly, when the provisions of
the Motor Vehicles is a beneficial piece of legislation and accident has occurred and prima facie, it is found that the deceased was travelling with the goods in the motor vehicle and when the motor vehicle is insured by the insurance company, though the liability of the insurance company cannot be fastened as there is breach of terms of policy by the owner of the vehicle, but considering the facts and circumstances of the present case, it is appropriate to direct the insurance company to first pay the awarded amount to the claimants and thereafter, recover the amount from the owner.
6.7 On the aspect of quantum, it is noted that the claimant has by and large claimed enhancement towards income of the injured, loss of consortium, estate and funeral expenses. It transpires that the Tribunal has considered Rs.2,700/- p.m. income of the deceased, which should be Rs.3,000/- considering the nature of the work as well as taking into account the minimum wages prevailed at the time of accident. Therefore, it should be believable. Thus, the Tribunal has committed an error by calculating the monthly income of the deceased. Therefore, the monthly income of the deceased would be calculated as Rs.3,000/- per month. Furthermore, looking to the age of the deceased at the time of accident, i.e. 50 years and considering the decision of the Hon'ble Apex Court in the case of Pranay Shethi (supra), 25% rise should be added as prospective income. Therefore, it would come to Rs.3,750/- per month income of the deceased. Further, considering the decision of Hon'ble Apex Court in the case of Sarla Verma (supra) and Pranay Shethi (supra), 1/3 would be the deduction towards personal expense, which is rightly considered by the Tribunal. Therefore, it would come to Rs.2,500/- per month Page 32 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined multiplied by 12 months (annual income) and further multiplied by 13 multiplier keeping in view the decision of Hon'ble Apex Court in the case of Sarla Verma (supra), it would come to Rs.3,90,000/- as future loss of income, which should be awarded by the Tribunal.
6.8 Further, under the head of loss of consortium, the Tribunal has awarded Rs.40,000/- only, which should be on higher side. It is not in dispute that there are two dependents in the family. In view of the decisions of Hon'ble Apex Court in the cases of : (i) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130 (ii) New India Assurance Co. Ltd. v. Somwati and others, reported in 2020 (9) SCC 644 and (iii) United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780, under the head of loss of consortium, Rs.48,400/- each (Rs.40,000/- and rise of 10%) would be proper to award, therefore, Rs.48,400/- x 2 dependents = Rs.96,800/- would be the compensation under the head of loss of consortium.
6.9 Further, under the head of loss of estate and funeral expenses, if we award Rs.18,150/- each, would be the just and proper compensation, considering the decisions of Hon'ble Apex Court in the case of Magma General Insurance Company Limited (supra). Furthermore, under other heads except the above, the amount awarded by the Tribunal is not disputed by learned advocate for the appellant/s, otherwise also, the Tribunal has rightly considered the amount under those heads.
6.10 Therefore, total compensation would be as under, which Page 33 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined the claimant/s is/are entitled to get. Particulars Amount (Rs.) Future loss of income 3,90,000/- Loss of estate 18,150/- Funeral expenses 18,150/- Loss of consortium 96,800/- Total... 5,23,100/- Less : Amount which is already 4,21,000/- awarded Additional amount which is 1,02,100/- awarded
7. Therefore, I hold that the claimant/s are entitled to get the total amount of compensation of Rs.5,23,100/- with 9% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal shall remain same. The Tribunal has already awarded Rs.4,21,000/- and, therefore, remaining amount of Rs.1,02,098/- would be the enhanced amount of compensation payable to the claimants.
8. For the reasons recorded above, the following order is passed.
8.1 The present appeal is allowed to the aforesaid extent.
8.2 The impugned judgment and award dated 27.06.2018 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara in Motor Accident Claim Petition No.64 of 2008 is modified to the aforesaid Page 34 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024 NEUTRAL CITATION C/FA/3871/2018 ORDER DATED: 23/07/2024 undefined extent.
8.3 The Insurance Company is directed to deposit the first enhanced amount Rs.1,02,098/- with 9% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order, and thereafter, recover the same from the owner of the vehicle.
8.4 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
8.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
8.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 35 of 35 Downloaded on : Fri Aug 02 22:57:32 IST 2024