Gujarat High Court
Oriental Insurance Company Ltd Thro' ... vs Chaturaben Bhurabhai on 3 April, 2013
Author: M.D. Shah
Bench: M.D. Shah
ORIENTAL INSURANCE COMPANY LTD THRO' AUTHORISE SIGNATORY....Appellant(s)V/SCHATURABEN BHURABHAI PIPALIYA C/FA/2741/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2741 of 2008 TO FIRST APPEAL NO. 2749 of 2008 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.D. SHAH ================================================================ 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 ? ================================================================ ORIENTAL INSURANCE COMPANY LTD THRO' AUTHORISE SIGNATORY....Appellant(s) Versus CHATURABEN BHURABHAI PIPALIYA & 2....Defendant(s) ================================================================ Appearance: MR MAULIK J SHELAT, ADVOCATE for the Appellant(s) No. 1 DELETED for the Defendant(s) No. 2 RULE SERVED for the Defendant(s) No. 1 SERVED BY AFFIX.-(R) for the Defendant(s) No. 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.D. SHAH Date : 03/04/2013 ORAL JUDGMENT
1. These appeals are filed against the common judgment and award dated 29.11.2007 passed by the learned Motor Accident Claims Tribunal( Auxiliary), 5th Fast Track Court, Rajkot in Motor Accident Claim Petitions Nos.759 of 1999, 760 of 1999, 761 of 1999, 762 of 1999, 763 of 1999, 809 of 1999, 1280 of 2000, 1281 of 2000 and 1283 of 2000.
2. The brief facts leading to filing of these appeals are such that the claimants were travelling as owners of goods in Matador No.GJ 1V 3875 on 20.2.1999 at about 5.30 p.m. and when the Matador reached near Vithalvav, the driver of the Matador was driving it in hectic speed, rashly and negligently as a result of which the matador was overturned and all the applicants sustained serious injuries of fracture, etc. likely to result in permanent disabilities. Therefore, all the claimants filed the above stated claim petitions, which were decided by the above mentioned common judgment and award. It is held by the Tribunal that claimants were travelling in the goods vehicle for attending the marriage ceremony and they are gratuitous passengers.
3. Heard learned advocate for the appellants. Learned advocate took this Court through the evidence of the deposition of the claimant-Jivabhai Punjabhai. It transpires from the evidence of this witness that 30 passengers were travelling in the said goods vehicle and they were going for attending marriage ceremony. He placed reliance on the case of National Insurance Company Limited V/s Savitri Devi and others etc., reported in 2012(4) Scale 111, more particularly, on paragraphs 10 to 13.
4. Heard learned advocate for the appellants, perused the impugned judgment and the case relied upon by learned advocate.
5. Paragraphs 10 to 13 of the judgment of Savitri Devi (supra) reads as under:
10. 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.
11. Dealing with similar circumstance, this Court has held in ACJ 2005(2) 721 titled as National Insurance Co.Ltd. Versus 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 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 Co.Ltd. Vs.Challa Bharathamma, 2004 ACJ 2094 (SC); Pramod Kumar Agrawal Vs. Mushtari Begum, 2004 ACJ 1903 (SC) and also in National Insurance Co.Ltd. Vs. V.Chinnamma, 2004 ACJ 1909 (SC).
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.
12. Similar view has been reiterated in (2009) 2 SCC 75, titled as National Insurance Company Limited versus 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.
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.
13. 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.
6. On perusing the impugned judgment, it transpires that the Tribunal has held that though breach of condition of policy is there, the claimants are entitled to recover the amount from the insurance company and insurance company is at liberty to recover the said amount from the owner of the vehicle. In the above referred judgment, once it is held by the Tribunal and considering over all evidence and documents on record when passengers were travelling in the goods vehicle as gratuitous passengers, then insurance company could not be held liable for payment towards the compensation and claim against the insurance company should be dismissed and award should be passed against the driver and owner of the vehicle. Considering this evidence also, all the passengers were travelling as gratuitous passengers and so in light of the above referred judgment delivered by the Apex Court, claim against the insurance company is required to be dismissed.
7. In view of the above, this appeal is allowed. The claim petitions are dismissed qua original opponent no.3-insurance company. The judgment and award dated 29.11.2007 passed by the learned Motor Accident Claims Tribunal( Auxiliary), 5th Fast Track Court, Rajkot in Motor Accident Claim Petitions Nos.759 of 1999, 760 of 1999, 761 of 1999, 762 of 1999, 763 of 1999, 809 of 1999, 1280 of 2000, 1281 of 2000 and 1283 of 2000 is hereby quashed and set aside and the claim petitions are dismissed against opponent no.3. It is clarified that the amount which is paid to the claimants in pursuance of the order passed by this court will not be recovered by the insurance company from the claimants and the insurance company is at liberty to recover from the owner and driver of the vehicle. The amount deposited by the insurance company in pursuance of the order passed by this Court and lying with the bank in fixed deposit will be refunded to the present applicant-insurance company. It is clarified that the claim petitions are dismissed only qua opponent no.3 and the judgment and award passed by the Tribunal against the opponents no.1 and 2 is undisturbed and the claimants are at liberty to recover the amount from the owner and driver of the vehicle. Office is directed to send the R & P to the learned Tribunal forthwith.
(M.D.SHAH, J.) Srilatha Page 6 of 6