Gujarat High Court
New India Assurance Company Limited vs Hitendrasinh Ratansinh on 7 May, 2013
Author: S.H.Vora
Bench: S.H.Vora
NEW INDIA ASSURANCE COMPANY LIMITED....Appellant(s)V/SHITENDRASINH RATANSINH SOLANKI C/FA/4811/2008 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 4811 of 2008 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA =========================================================== 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, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ NEW INDIA ASSURANCE COMPANY LIMITED....Appellant(s) Versus HITENDRASINH RATANSINH SOLANKI & 6....Defendant(s) ================================================================ Appearance:
MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1 MR GC MAZMUDAR, ADVOCATE for the Defendant(s) No. 3 MR HG MAZMUDAR, ADVOCATE for the Defendant(s) No. 3 MR JIGAR P RAVAL, ADVOCATE for the Defendant(s) No. 1 MR RAJESH P MANKAD, ADVOCATE for the Defendant(s) No. 1 RULE SERVED for the Defendant(s) No. 2.2 - 2.5 , 2.7 , 4 - 7 SERVED BY AFFIX.-(R) for the Defendant(s) No. 2.6 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.H.VORA Date : 07/05/2013 CAV JUDGEMNT
1. Aggrieved by the judgment and award dated 06.12.2007 rendered by the Motor Accident Claims Tribunal (Auxi), F.T.C. No.4, Bharuch in Motor Accident Claims Petition No.317 of 2000 under Section 166 of the Motor Vehicles Act (for short, the Act ) while awarding compensation of Rs.9,86,400/-, the appellant (original opponent No.4)
- The New India Assurance Company Limited held liable to pay said compensation to the original claimants jointly and severally with the other opponents and further, the appellant s liability was fixed at 40%, the appellant (original opponent No.4) - The New India Assurance Company Limited is before this Court in an appeal under Section 173 of the Act questioning the award insofar as the Tribunal held it jointly and severally liable to pay compensation and further made apportionment of 60-40% between the original opponent Nos.3 and 4 in absence of owner having been joined as party in the claim petition.
2. Undisputedly, neither the claimants nor the original opponent No.3 - The United India Assurance Company Limited challenged the award on any counts or grounds.
3. As the main contest is between the appellant and original opponent No.3-United India Insurance Company Limited as to Tribunal is justified in passing the award against the appellant in absence of owner of trailer having been joined as party in the claim petition, it is not necessary to discuss the other facts in detail.
4. Since the award has not been challenged, it stands conclusively proved that the opponent No.1, who was driving the tractor, ran tractor over the deceased and the deceased succumbed to the injuries on the spot. At the relevant time of accident, the tractor was insured with opponent No.3- United India Insurance Company Limited whereas, the trailer was insured with the opponent No.4 i.e. appellant herein. Meaning thereby, both the tractor and trailer were insured separately and were owned by the two different persons but the fact remains that the tractor and trailer were being used for transportation at the relevant time of accident. Meaning thereby, both the owners of the tractor and trailer were deemed to have been permitted use of the same on the date of accident. Legally speaking, the tractor and trailer cannot be treated as different and separate vehicles. Suffice it to refer to the definition of the motor vehicle, tractor and trailer as defined under Sections 2(28), 2(44) and 2(46) of the Act respectively. Once the accident took place, the motor vehicle involved is the tractor and trailer i.e. both have to be taken together as one and for the purpose of the accident, they cannot be treated to be as separate vehicles. So, in the facts and circumstances of the case, it can be inferred that the owners of both the vehicles would have consented for use thereof and, therefore, the award can be passed for payment of compensation and they cannot be separated for the purpose of attributing the liability differently to the Insurance Companies.
5. But the question which arises in this appeal is such that the owner of the trailer, namely, Hitendrasinh Ratansinh Solanki was not joined as party in the claim petition. In that event, whether the Tribunal is empowered to pass an award against the opponent No.4 i.e. appellant herein. As such, the question raised by learned advocate Mr.Vibhuti Nanavati appearing for the appellant is squarely covered by the decision of the Hon ble Division Bench of this Court rendered in case of (The) Oriental Fire & General Ins. Company V/s. Aminbhai Pirmohomad Master and others reported in 1986 G.L.H. 463 and, more particularly, paragraph Nos.7 and 9 thereof read as under:-
7. The grievance of the Insurance Company as the insurer of the motorcycle is that the owner of the motorcycle was not made a party to the petition and, therefore, no award could have been passed against the Insurance Company. It is a fact that the owner of the motor-cycle Dwarkadas Bhagwanbhai who was himself driving the said vehicle was not made a party to Claim Petition No.9 of 1976. It is clear on the face of it that no award could have been passed against the Insurnace Company in absence of the owner because the owner is to be indemnified against the award which is likely to be passed against the owner. Mr.B.J. Shethna, appearing for the respondents submitted that the Insurance Company had not taken up any such contention either in the Written Statement or at any stage before the Tribunal and, therefore, the Insurance Company is not entitled to raise any such contention by filing the appeal. He also submitted that such a technical contention should not be permitted to be raised on behalf of the Insurance Company in the appeal when such a contention was not raised before the Tribunal.
9. Mr.Shethna also drew our attention to a decision of the Himachal Pradesh High Court reported in the case of Mangal Chand v. The Forest Department through Divisional Forest Officer, Nichar, ILR 1984 Himachal Pradesh,
259. The learned Chief Justice of the Himachal Pradesh High Court has observed therein that tribunals and quasi-judicial authorities must always bear in mind that whereas refusal to condone delay might result in injustice by a meritorious case being thrown out without trial, condonation of delay would at the highest result in decision of the case on merits. We fail to understand how this decision of the Himachal Pradesh High Court is of any assistance in the present case.
The contention which is raised by filing this appeal cannot be said to be of a technical nature. The Insurance Company has insured the owner of the motor-cycle. By insuring the owner of the motor-cycle, the Insurance Company has agreed to indemnify whatever compensation he might have to pay for the injuries caused by the vehicle in question. The question of the Insurance Company paying the amount of compensation will arise only if and when there is some award passed against the owner of the vehicle. When the owner of the vehicle is not made a party, the question of passing any award against the Insurance Company does not arise. No award could have been passed and the Tribunal had even no jurisdiction to pass such an award against the Insurance Company in absence of the owner. The question which is raised by filing the appeal thus goes to the very root of the matter. It is true that the Insurance Company did not raise any such contention either in the Written Statement or at any stage before the Tribunal, but it cannot be said that the Insurance Company in any way made any concession that it was liable to pay. The question of waiver also does not arise because this is a pure question of law which again goes to the very root or the matter.
6. Learned advocate Mr.Nanavati appearing for the appellant has also pressed into service the decision rendered in the case of United India Fire & Gen. Ins. Co.Ltd. V/s. Gurmail Kaur & Ors. reported in II(1985) ACC 416 and, more particularly, para 2 thereof, reads as under:-
2. It is well settled, as was also held by the Full Bench in The Oriental Fire and General Insurance Company Limited v. Bachan Singh, 1982 PLR 280 (FB), that the liability of the insurer arises only when a judgment is obtained against the insured. In other words, it is only then and then alone that the insurer is obliged to pay the claimants the amount due by the insured under an award made against him by the Motor Accidents Claims Tribunal.
7. In the present case, it is undisputed fact that the trailer was insured with the original opponent No.4 - The New India Assurance Company Limited as per policy Exh.99. The said policy shows the name of insured as Hitendrasinh R. Solanki. It is also an admitted fact that the appellant original opponent No.4 did not take any contention either in the written statement Exh.95 or at any stage before the Tribunal. Both the grievances on the part of the appellant inasmuch as no award can be passed against the Insurance Company in absence of the owner on one hand and objection as to whether the appellant can be permitted to raise this question first time before this Court or not are answered by the judgment delivered by the Hon ble Division Bench of this Court in the case of (The) Oriental Fire & General Ins. Company (supra) in favour of the appellant.
8. Lastly, learned advocate Mr.G.C. Majmudar appearing for the opponent No.3 - United India Insurance Company Limited pressed into service the decision rendered by the Hon ble High Court of Madhya Pradesh in case of New India Assurance Co. Ltd. V/s. Triveni Bai and others reported in 2008 ACJ 1956 so as to justify the apportionment of liability made by the Tribunal in the ratio of 60-40 between opponent Nos.3 and 4. Firstly, in the said case, owners of both tractor and trolley were parties to the proceedings and on perusal of the entire judgment, both on facts and law, the Hon ble High Court of Madhya Pradesh held that since the tractor and trolley have owned by two different persons and insured with different Insurance Companies, the Insurance Companies held jointly liable to pay compensation and accordingly, both the Insurance Companies were saddled with 50% liability as the accident is a combined effect of use of tractor and trolley in the case before the Hon ble High Court of Madhya Pradesh. In such case, there was no such issue as to non-joinder of the insured of any vehicle involved in the accident and so, in the opinion of this Court, the said case cited by learned advocate Mr.Majmudar would not be helpful to the opponent No.3.
9. Net result of the discussion is such that the contention as to non-joinder of insured in the claim petition goes to the root of the matter and according to the decision rendered by the Hon ble Division Bench of this Court in the case of (The) Oriental Fire & General Ins. Company (supra), the Tribunal cannot pass any award against the insurer in absence of insured before it.
10. On perusal of the award under challenge, it is also found by the Tribunal that because of the sole carelessness and negligent driving of the tractor by opponent No.1, the accident in question has occurred. It goes without saying that at the relevant point of time, the trailer was connected with the tractor and so, naturally it cannot be driven by anybody separately or independently. On this count also, no liability can be fastened upon the owner of the trailer i.e. insured. Unless the driver is liable, owner of the vehicle cannot become vicariously liable for the payment of compensation. It is the vicarious liability of the owner i.e. indemnified by the Insurance Company.
11. Under the circumstances, the present appeal is required to be accepted and it is hereby allowed. The award holding appellant herein liable to pay 40% amount of the compensation is hereby quashed and set aside.
12. In the result, the original claimant would be entitled to get 100% amount of compensation from the opponent Nos.1 to 3 jointly and severally and petition qua opponent No.4 i.e. the appellant herein stands dismissed with cost. Any amount deposited by the appellant herein shall be repaid to the appellant within one month from today.
(S.H.VORA, J.) Hitesh Page 8 of 8