Gujarat High Court
Maheshbhai Himmatbhai Solanki vs Khemaranbhai Muktarambhai Choudhri on 23 December, 2022
Author: A. C. Joshi
Bench: Ashokkumar C. Joshi
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2124 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MAHESHBHAI HIMMATBHAI SOLANKI
Versus
KHEMARANBHAI MUKTARAMBHAI CHOUDHRI
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
MR KIRIT R PATEL(2802) for the Defendant(s) No. 3
MR TANMAY B KARIA(6833) for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 23/12/2022
ORAL JUDGMENT
1. This First Appeal is filed by the appellant - original claimants under Section 173(1) of the Motor Vehicles Act, 1988, (for short 'M V Act') against the judgment and award dated 21.03.2018 passed in Page 1 of 9 Downloaded on : Sat Dec 24 04:49:12 IST 2022 C/FA/2124/2019 JUDGMENT DATED: 23/12/2022 Motor Accident Claim Petition No. 1935 of 2015 (old M.A.C.P. No.1574 of 2004) by the Motor Accident Claims Tribunal (Aux.) & 5 th Additional District Judge, Vadodara at Savli, which was preferred under Section 166 of the MV Act, whereby, against a claim valued at Rs.4,00,000/- for the injuries sustained in an accident that had occurred on 07.07.2004, the Tribunal has awarded a sum of Rs.71,500/- with interest at the rate of 9% per annum from the date of claim petition till realization, holding liable the opponents therein to pay the compensation to the appellant - original claimant. Hence, grieved claimant has filed this appeal on the point of quantum.
2. It was the case of the appellant - complainant that on 07.07.2004 the claimant proceeded towards Ahmedabad by way of riding Tanker No. GTK-2296 for unloading the oil in a very moderate speed on correct side of the N.H. No.8 and when he reached near the Patia of Gohelnagar, Anand, District, at that time, the driver of the Truck No. GJ-8-U-1106 came in rash and negligent manner with an excessive speed and lost his control over the vehicle and came on wrong side and dashed with the tanker. As a result, the claimant sustained serious bodily injuries. Accordingly, the appellant - complainant has filed this appeal for enhancement of compensation.
3. Though served none appears for the respondent No. 1. Heard, learned advocate Mr. Mohsin M. Hakim for the appellant and learned Page 2 of 9 Downloaded on : Sat Dec 24 04:49:12 IST 2022 C/FA/2124/2019 JUDGMENT DATED: 23/12/2022 advocate Mr. Tanmay B. Karia for the respondent No. 2 - insurance company, learned advocate Mr. Kirit Patel for the respondent No.3 and learned advocate Mr. G.C. Mazmudar for the respondent No.4 at length.
4. The sole contention that has been raised by the learned advocate Mr. Mohsin M. Hakim for the appellant - original claimant is that the learned Tribunal has materially erred in assessing the contributory negligent @ 50% of the injured - claimant and thereby holding liable to pay the compensation to the respondent Nos. 1 and 2 only 50% of the total compensation. He submitted that the learned Tribunal ought to have considered and appreciated the fact that the owner of the tanker had paid extra premium covering risk of the driver and accordingly, when extra premium is paid by the owner of the vehicle, in that case, the insurance - company is liable to indemnify the owner irrespective of the negligence of the driver of the vehicle. In support of such submission, the learned advocate for the appellant - applicant has heavily placed reliance on a decision of the larger Bench of this Court in case of Valiben Laxmanbhai Thakore (Koli) wd/o Late Laxmanbhai Ramsingbhai Thakore (Koli) Vs. Kandla Dock Labour Board, reported in 2021 (0) AIJEL-HC 243219. Learned advocate also placed reliance upon a decision of the Hon'ble Apex Court in the case of Syed Sadiq and Ors. vs. Divisional Manager, United Page 3 of 9 Downloaded on : Sat Dec 24 04:49:12 IST 2022 C/FA/2124/2019 JUDGMENT DATED: 23/12/2022 India Ins. Company, reported in (2014) 2scc 735. Thus, making such submission, it is requested that this appeal may be allowed and the compensation awarded by the learned Tribunal may be enhanced suitably. It is also submitted by the learned advocate for the appellant that under different heads also the learned Tribunal has awarded trivial amount and accordingly, the same are required to be enhanced suitably.
5. As against this, the learned advocate Mr. Tanmay Karia for the respondent No. 2 - insurance company, while heavily opposing this appeal and supporting the impugned judgment and award being just and proper and therefore, no interference is required at the hands of this Court. He has further submitted that after considering the evidence on record, the learned Tribunal has come to the conclusion that the driver of the tanker was equally negligent in driving the vehicle and accordingly held liable him contributory negligent of 50%. He submitted that no error much less an error on the face of it has been committed by the learned Tribunal in arriving at such a conclusion and therefore, he has prayed for this appeal being bereft of any merit deserves to be dismissed.
6. This Court has also heard learned advocates for the respondent Nos 3 and 4 respectively, who are exonerated from the liability to pay the compensation by the learned Tribunal, who have supported the arguments advanced by the learned advocate for the Page 4 of 9 Downloaded on : Sat Dec 24 04:49:12 IST 2022 C/FA/2124/2019 JUDGMENT DATED: 23/12/2022 respondent No.2. Learned advocate for the respondent Nos. 3 and 4, it is further submitted that as the fact of additional premium having been paid qua the driver of the tanker is not proved by any evidence, the learned Tribunal has rightly exonerated the respondent Nos. 3 and 4.
7. Regard being had to the submissions canvassed and perusal of the record reveals that after having considered the evidence on record, the learned Tribunal has come to the conclusion that the driver of the tanker was equally responsible for the unfortunate accident and accordingly held him negligent to the extent of 50% and awarded the compensation as such.
7.1 In this regard, if the decision in case of Valiben Laxmanbhai Thakore (Koli) wd/o Late Laxmanbhai Ramsingbhai Thakore (Koli) Vs. Kandla Dock Labour Board, (Supra), is referred to the Court held as under:
"13. Thus, when the owner of a vehicle pay additional premium and same is accepted by the Insurance Company, liability of the Insurance Company gets extended under the Motor Vehicles Act. Section 147 of the Act clearly prescribes for statutory liability to cover risk of paid Driver and Conductor under the Insurance Policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the Insurance Company. Thus, the risk of paid Driver and Conductor would be covered under the Insurance Policy. Only when the additional premium is not paid, liability would be as per the Employees Compensation Act, 1923 and in such cases, Page 5 of 9 Downloaded on : Sat Dec 24 04:49:12 IST 2022 C/FA/2124/2019 JUDGMENT DATED: 23/12/2022 compensation would be computed as prescribed under the Act which is limited to the extent provided under provisions of the Act. However, when owner pays additional premium to cover the legal liability of his paid driver and conductor to the Insurance Company, as such, the Insurance Company is enlarging the scope for unlimited liability for payment of compensation, when additional premium is accepted. The liability of the Insurance Company gets extended and it has no right to raise issue of self negligence or otherwise of the such class of the driver of the Insured vehicle. By accepting additional premium as per the IMT 28, the Insurance Company expressed its willingness to extend its liability under the Clause of Legal Liability to the Paid driver and conductor as envisaged under Section 147 of the Act. Thus, in our opinion, Insurance Company has no legal right to avoid its legal liability under the indemnity clause arising from the contract of insurance towards the insured - owner of such classes of vehicles.
14. The judgments relied upon by the learned counsel for the Insurance Company would not be applicable in the instant case and therefore, it is not necessary to be dealt with. The other judgments which are cited by the learned counsels for the respective parties, deal with different facts & situations and are not relevant to the question referred to this Bench and hence they are not dealt with individually.
15. In our opinion, by accepting additional premium, the Insurance Company indemnifies the owners for paid Driver and / or Conductor and risk of Driver / Conductor is covered under it. Upon death or injury caused to the paid Driver and / or Conductor, the Insurance Company would be liable to satisfy such claim irrespective of the self negligence. Thus, the observations made by the Division Bench in the case of Saberabibi Hisammiya Umarvmiya & Anr (supra) lays down the correct law. Reference is thus, answered accordingly. The respective appeals be placed before the Division Bench taking up Page 6 of 9 Downloaded on : Sat Dec 24 04:49:12 IST 2022 C/FA/2124/2019 JUDGMENT DATED: 23/12/2022 such appeals for its final disposal in view of the observations made by us."
7.2 Thus, as per the above pronouncement, the liability of the Insurance - company gets extended, and it has no right to raise issue of self negligence or otherwise of such class of the driver of the insured vehicle.
7.3 The Court has also gone into the another decision as relied upon by the learned advocate for the appellant - claimant, in the case of Syed Sadiq and Ors. vs. Divisional Manager, United India Ins. Company (Supra), wherein, it is observed that the Tribunals and High Courts have erred in concluding that the claimants also contributed to the accident without assigning any logical reasons and accordingly contributory negligence of the claimants in accident is not proved by the respondents by producing evidence, the claimants were held to be entitled for enhancement of quantum of compensation.
7.4 In the instant case, the owner of the tanker has paid additional premium and accordingly liability of the Insurance - company gets extended under the M.V. Act and therefore, as per the aforesaid decision in case of Valiben Laxmanbhai Thakore (Koli) wd/o Late Laxmanbhai Ramsingbhai Thakore (Koli) Vs. Kandla Dock Labour Board, (Supra), the Insurance - company of the tanker is liable to indemnify the insured i.e. owner of the tanker. Page 7 of 9 Downloaded on : Sat Dec 24 04:49:12 IST 2022
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022 Thus, in the considered opinion of this Court, the learned Tribunal has erred in exonerating the respondent Nos. 3 and 4 from the liability to pay the compensation. Therefore, when the driver of the tanker was equally responsible for the accident in question, and that the owner of the tanker has paid additional premium covering the risk of the driver, the respondent No. 4 is liable to indemnify, so far as the contributory negligence of 50% of the driver of the tanker and accordingly, the impugned judgment and award is required to be modified.
7.5 The learned Tribunal as appeared to have erred in awarding trivial amount under other different heads and accordingly in the opinion of this Court, reasonable enhancement is required to be made.
8. In the aforesaid backdrop, this appeal succeeds and is allowed in part. The impugned judgment and award is modified to the aforesaid extent and it is held that the appellant - claimant shall be entitled for the following towards compensation:
Head Award of Tribunal Modified Amt. (Rs.)
(Rs.)
Pain, Shock & Suffering 10,000/- 50,000/-
Actual loss of income 9,000/- 9,000/-
Future loss of income 1,04,000/- 1,04,000/-
Special Diet, attendant 10,000/- 10,000/-
and Transportation
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C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
Medical Expenses 10,000/- 10,000/-
Loss of amenities & loss -- 50,000/-
of enjoyment of life
Total 1,43,000/- 2,33,000/-
(50% negligency)
71,500/-
Different Amt. 1,16,500/-
8.1 Thus, the appellant - original claimant is entitled to amount of
Rs.2,33,000/- towards compensation, out of the said amount, the respondent Nos. 1 and 2 are liable to pay 50% i.e. Rs.1,16,500/-, whereas, the respondent No.4 i.e. the Insurance - company of the tanker is liable to indemnify the respondent No.3 i.e. owner of the tanker has observed herein above, to the extent rest 50% i.e. Rs.1,16,500/- shall be paid to appellant - claimant. 8.2 The difference amount shall be paid by the respective Insurance - companies within a period of 08 (eight) weeks, for which the claimant shall be entitled to interest @ 6% from the date of claim petition till realization.
8.3 The rest of the impugned judgment and award is not disturbed.
8.4 R&P, if received, be sent back forthwith.
(A. C. JOSHI,J) prk Page 9 of 9 Downloaded on : Sat Dec 24 04:49:12 IST 2022