Gujarat High Court
Oriental Insurance Co.Ltd vs Ranjanben Motisinh Kher on 10 October, 2022
C/FA/1922/2007 JUDGMENT DATED: 10/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1922 of 2007
With
R/FIRST APPEAL NO. 1923 of 2007
With
R/FIRST APPEAL NO. 1924 of 2007
With
R/FIRST APPEAL NO. 1925 of 2007
With
R/FIRST APPEAL NO. 1926 of 2007
With
R/FIRST APPEAL NO. 1927 of 2007
With
R/FIRST APPEAL NO. 1928 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
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 ?
==========================================================
ORIENTAL INSURANCE CO.LTD.
Versus
RANJANBEN MOTISINH KHER & 5 other(s)
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
RULE NOT RECD BACK for the Defendant(s) No. 6
RULE SERVED for the Defendant(s) No. 1,2,3,4,5
==========================================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Page 1 of 29
Downloaded on : Sun Dec 25 03:41:57 IST 2022
C/FA/1922/2007 JUDGMENT DATED: 10/10/2022
Date : 10/10/2022
COMMON ORAL JUDGMENT
1. The present group of appeal is filed by the Oriental Insurance Company Limited against the common judgment and order dated 29.9.2006 passed by learned Motor Accident Claims Tribunal, Bharuch in Motor Accident Claims Petition Nos. 508 to 210 of 1997 and 521 to 528 of 1997 arising from one accident. In the said group of petition the learned Tribunal has partly allowed the claim petitions of the original claimants and directed the insurance company to initially satisfy the claim of the original claimants and subsequently, recover from the owner of the offending vehicle involved in the accident.
2. Since present group of appeal arising from one accident and also from the common judgment passed by the learned Tribunal, all these appeals are decided by this common judgment.
3. The short facts giving rise to present appeals are as under:
3.1 On the day of the accident i.e. on 18.4.1997, the group of persons were travelling in the Tractor-Trolley being registration No. GJ-5-AA-9027 for attending a religious ceremony at Devmogra temple.Page 2 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022
C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 3.2 At that time, the Tractor-Trolley met with an accident and turned turtle. As a result of which three persons died and eight persons suffered injuries.
3.3 The claim petitions were filed by the heirs and legal representatives of the deceased persons and also all the injured persons before the learned Motor Accident Claims Tribunal, Bharuch being Motor Accident Claims Petition Nos. 508 to 210 of 1997 and 521 to 528 of 1997 whereby the learned Motor Accident Claims Tribunal has partly allowed the Motor Accident Claims Petition Nos. 508, 509, 510, 521, 522, 524, 525, 526 and 527 of 1997 by granting different amount of compensation and Motor Accident Claims Petition Nos. 523 and 527 of 1997 were rejected.
4. Mr. Vibhuti Nanavati, learned advocate for the appellant-insurance company has submitted that the original claimants were sitting as gratuitous passengers in the Tractor, as they all went to offer a prayer to the goddess and therefore, the insurance company cannot be held liable to pay the compensation to the claimants. It is further contended that it is against the principle enunciated vide judgment reported in the case of New India Assurance Co. Ltd. Vs. Asha Rani and others reported in (2003) 2 SCC 223 and also in First Appeal No. 913 of 2011 and First Appeal Nos. 4601 and 4602 of 2007. It is also contended Page 3 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 by the learned advocate for the appellant-insurance company that all the claimants were sitting as unauthorized passengers of the trolley attached to the Tractor and it is the case of the claimants that they were sitting in the trolley for going to village Devmogra Mandi for offering prayer to the goddess, but, the learned Tribunal has not properly appreciated the said fact, while deciding the issue of neligency. He further submitted that present appeal may be allowed and insurance company may be exonerated.
5. I have heard Mr. Vibhuti Nanavati, learned advocate for the insurance company at length. Though rule is served upon the respondents, none remained present at the time of hearing to oppose the present appeal.
6. The present appeal was admitted vide order dated 13.4.2007 and interim relief was also granted on condition that the applicant deposits entire amount as ordered by the Tribunal. Thereafter, on 17.7.2007, when this Court disposed of the Civil Application, passed following order:-
1.The present applications are for interim injunction pending the First Appeals which are admitted.
2.Heard Mr. Nair for the applicant. The respondents-
claimants are served, except in the first matter, one of the claimants is not served, but nobody has appeared on their behalf.
3. This Court had granted ad interim injunction on 13.04.2007 and Mr. Nair states that as per his Page 4 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 instructions, the condition is complied with and the amount is deposited. Hence, ad interim relief granted earlier is confirmed.
4. I have also heard the learned advocates appearing for the applicants on the aspects of withdrawal.
5.Considering the facts and circumstances, it appears that the Tribunal has even otherwise also permitted disbursement on higher side and therefore, keeping in view the facts and circumstances of the present case, out of the amount which may be deposited by the applicant pursuant to the earlier order, the Tribunal shall permit disbursement of 10% of the amount and shall make investment of 90% of the amount in the Fixed Deposit, Receipt for a period of 5 years with the further clause of renewal in the event the appeal is not finalised before the due date and with the condition that the claimant shall not be entitled to raise any loan, but shall be entitled to interest periodically as and when it becomes due.
6. Applications allowed to the aforesaid extent. Rule made absolute accordingly. The amount deposited with this Court shall be transmitted the Tribunal.
7. I have also perused the original record of the Tribunal and material available on record of the Appeal.
8. While passing the impugned judgment and award in favour of the original claimants, learned Tribunal, though has recorded the submissions on behalf of the appellant, has not properly appreciated the fact and law enunciated by the Hon'ble Apex Court in aforesaid decisions.
9. In my opinion, learned Tribunal has committed serious Page 5 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 error while passing the impugned judgment and award, more particularly findings recorded in paragraph No. 47 to 47.3. The learned Tribunal has considered the policy produced at Exh.36 by the appellant, wherein it is clearly mentioned:-
"Use only under a public carrier permit within the meaning of Motor Vehicle Act 1988. The policy does not cover use for Hire or Reward. Organised racing. Speed testing"
10. The learned Tribunal has also referred the decision of the Hon'ble Apex Court in case of New India Assurance Company Limited Vs. Asha Rani and others, (2003) 2 SCC 223 and National Insurance Co. Ltd vs Baljit Kaur and Ors, (2004) 2 SCC 1 and then passed impugned judgment and award.
11. Thus, the impugned award is against the settled principle of law and the same deserves to be modified to the extent of the ratio laid down by this Court in the decision of rendered in First Appeal No. 4601 of 2007 to First Appeal No. 4602 of 2007 in case of The New India Assurance Company Limited vs. Sureshkumar Shakralal Darji and others and the decision rendered in First Appeal No. 913 of 2011 in case of Oriental Insurance Company Limited vs. Kaminiben WD/o Ashokbhai Chandrashankar Vyas and others.
Page 6 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022C/FA/1922/2007 JUDGMENT DATED: 10/10/2022
12. In the decision of the Kaminiben (supra) this Court observed as under:-
"6. In the case of Minor Mahesh Kanubhai (supra), this Court has observed in paragraphs No.54, 55and 56 as under:-
54. In the light of the above discussion, this court is of the view that the Claims Tribunal was not justified in holding the appellant -
insurance companies to be jointly and severally liable to pay the compensation awarded to the claimants after coming to the conclusion that the insurance company is not liable to indemnify the owner, in view of the fact that the victims were gratuitous passengers in the offending vehicle. While it is true that the Claims Tribunal has in the body of the judgment permitted the insurance company to recover the amount paid towards compensation from the owner after treating the award as a decree in favour of the insurance company, in view of the fact that the passengers were gratuitous passengers in the offending vehicle, the provisions of sub-section (4) and (5) of section 149 of the Act would not be attracted and, therefore, the Claims Tribunal had no power to issue such directions to the insurance company to first pay and thereafter recover the amount from the owner.
55. For the foregoing reasons, the appeals succeed and are accordingly allowed to the following extent. The impugned awards passed by the Claims Tribunal in all the appeals shall stand modified to the extent that instead of the opponents being jointly and severally liable to pay the compensation awarded under the said award, it shall be only the driver and the owner of the vehicle who shall be so liable and the insurance Page 7 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 company shall stand exonerated from such liability.
56. A perusal of the record reveals that in First Appeals No.710/2007 to 713/2007, the entire awarded amount has been deposited with the Claims Tribunal. However, no amount appears to have been disbursed to the claimants. The appellant - insurance company shall be entitled to refund of the entire amount deposited by it with the interest that may have accrued thereon. The Claims Tribunal is accordingly, directed to release the balance amount lying in the fixed deposit in favour of the insurance company within two months from the date of receipt of a copy of this order with all accrued interest. There shall be no order as to costs. 58. In First Appeal No.3852/2008, it appears that the insurance company had deposited the awarded amount before the Claims Tribunal and vide order dated 24th September, 2008, this court had directed the Claims Tribunal to pay 30% thereof to the claimant - Mahendrabhai by Account Payee Cheque and had directed the rest of the amount to be invested in a fixed deposit in any nationalised bank in the name of the claimant initially for a period of three years with cumulative interest with periodical renewal till the appeal is finally decided by the court. Insofar as the amount which is lying with the Claims Tribunal is concerned, the appellant - insurance company shall be entitled to refund thereof together with the interest that may accrue thereon. The respondent No.1 - claimant is directed to return the amount received by him pursuant to the interim order passed by this court within three months from the date of receipt of a copy of this judgment as it is well-settled law that any interim order passed in an appeal will necessarily abide by the final result of the appeal and as and when the claimant so Page 8 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 deposits the amount, the Claims Tribunal shall release it in favour of the insurance company. Meanwhile, the Claims Tribunal is directed to release the balance amount lying in the fixed deposit in favour of the insurance company within two months from the date of receipt of a copy of this order with all accrued interest. There shall be no order as to costs.
7. In the case of Lilaben Wd/o. Bhikhabhai Premjibhai Kathiriya (supra), this Court has observed in para-16 as under:-
16. It appears that pursuant to an interim order earlier passed in this appeal, the Insurance Company has deposited the awarded amount before the Tribunal; and the Tribunal below has already permitted the claimants to withdraw 30% of the amount deposited by the appellant and balance 70% is lying in deposit in the Tribunal in a fixed deposit. This appeal being allowed, I direct the claimants to return the amount received pursuant to the interim order within three months from today as it is well-settled law that any interim order passed in an appeal will necessarily abide by the final result of the appeal and as and when the claimant so deposits the amount, the Tribunal shall release it in favour of the Insurance Company.
Meanwhile, the Tribunal is directed to release the balance amount lying in the Fixed Deposit in favour of the Insurance Company within two months from today with all accrued interest. No Costs.
8. In the case of Laxmiben Lakhabhai Gadhavi (supra), this Court has observed in para - 6, 7 and 8 as under:-
6. The Supreme Court in the case of New India Assurance Co. Ltd. Vs Asha Rani and Ors (2003) 2 SCC 223 has held as under in Page 9 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 para 9 :
"9. In Satpal's case (supra), the Court assumed that the provisions of Section 95(1) of Motor Vehicles Act, 1939 are identical with Section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amended Act of 1994 is examined, particularly Section 46 of Act 6 of 1991 by which expression 'injury to any person' in the original Act stood substituted by the expression 'injury to any person including owner of the goods or his authorised representative carried in the vehicle' the conclusion is irresistible that prior to the aforesaid Amendment Act of 1994, even if widest interpretation is given to the expression 'to any person' it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of clause 46 also states that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the Insurance Policy. It is no doubt true that sometimes the legislature amends the law by way of amplification of an inherent position which Page 10 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression 'including owner of the goods or his authorised representative carried in the vehicle which was added to the pre- existed expression 'injury to any person' is either clarificatory or amplification of the preexisting statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The judgment of this Court in Satpal's case, therefore must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury."
7. The Supreme Court subsequently followed it in the case of Oriental Insurance Company Ltd. Vs Brij Mohan and ors (2007) 7 SCC 56.
Page 11 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022C/FA/1922/2007 JUDGMENT DATED: 10/10/2022
8. The aforesaid proposition of law expounded by the Supreme Court makes it vividly clear that Insurance Company would not be liable to pay compensation in case where the victim was a gratuitous passenger in the goods vehicle. I am, therefore, of the view that the Tribunal ought not to have fastened the liability of payment of compensation on the appellant-Insurance company as the deceased was gratuitous passenger in the offending vehicle. The impugned judgment and award of the Tribunal, therefore is required to be entertained to a limited extent of exonerating appellant-Insurance company from its liability of payment of compensation to the claimants.
9. In the case of Sumitraben Mangabhai Vasava (supra), this Court has observed in paras no.7 to 9 as under:-
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 pasenger 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 Hon'ble Apex Court in a case of Asha Rani (supra) and reiterated in other decisions. It is an admitted fact that injured Page 12 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 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 respectief petitions which came to be filed by the claimant wherein they have clearly mentioned that they were travelling upon the aforesaid Tempo as passengers to attend the marriage party alongwith 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 taht they were passengers who were travelling upon the aforesaid goods carriage in order to attend the marrige 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.GJ-9-V-1639 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 inujuries.
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 appellant -
Insurance 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 insured - owner of the goods carriage Page 13 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 vehicle.
10. In the case of Savitri Devi and others (supra), the Hon'ble Supreme Court has observed in paras-8 to 13 as under:-
8. After having gone through the award of the Claims Tribunal and the judgment and Order passed by the learned Single Judge of the High Court, we are not able to understand as to how it has been found that the Appellant-
Insurance Company can still be held liable to pay the amount of compensation as there has been a categorical finding by both the Courts recording that the vehicle in question was insured only as "Goods carrying Vehicle". The custom of carrying barat in the village on the said truck will not be sufficient to hold the Appellant-Insurance Company liable to pay the amount of compensation. Admittedly, Appellant-Insurance Company would not know unless the accident takes place as to for what purpose the vehicle in question was being used. The terms and conditions of the Insurance Policy are very clear and categorical and it creates a specific bar on carrying of any passengers, except the employees other than the driver, not exceeding six (6) in number, who should also come under the purview of Workman's Compensation Act.
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.
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: (SCC p.246, paras 9-11) Page 14 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022
9.... ....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 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.
10. 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).
11. 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.
11. Similar view has been reiterated in (2009) 2 SCC 75, titled as "National Insurance Page 15 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 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 is 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 light of the aforesaid judgments, we have no doubt in our minds that the impugned judgment and order of teh learned Single Judge dated 28.7.2005 cannot be sustained. The same is hereby set aside and quashed. No liability can be fastened on teh Appellat - Insurance Company. The appeals of teh Appellant - Insurance Company are allowed to this extent.
13. 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 Page 16 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 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 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. The parties to bear their own costs.
11. In the case of Mohammed Haji Abdulla Decd. Through The Lrs and others (supra), this Court has observed in para-10 and 11 as under:-
"10. Now, so far as impugned judgment and award passed by the learned Tribunal holding insurer liable to pay compensation is concerned, it is required to be noted that though learned Tribunal has specifically observed and held that deceased was traveling as gratuitous passenger on the goods vehicles at the time of accident, learned Tribunal has held insurer liable to pay compensation solely on the ground that the original claim petition has been filed under Section 163 of the Motor Vehicles Act. The aforesaid cannot be sustained. In light of the observations made herein above and considering Section 149(2) of the Motor Vehicles Act and it is held that insurer can raise statutory defence which may be available to it under Section 149(2) of the Motor Vehicles Act and once it is held that the deceased was traveling as gratuitous passenger on the goods vehicle at the time of accident considering the subsection(2) of Section 149 of the Motor Vehicles Act, the insurer cannot be held liable to pay compensation as in such a situation the insurer can avoid the liability to pay the compensation as the insurer is not statutorily liable to pay the compensation as the deceased was traveling Page 17 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 as a gratuitous passenger on the goods vehicle at the time of accident.
10.1 Under the circumstance, the impugned judgment and order passed by the learned Tribunal holding the appellant - insurer liable to pay the compensation or indemnify the award cannot be sustained and same deserves to be quashed and set aside.
11. In view of the above and for the reasons stated above, appeal succeeds. The impugned judgment and award in so far as holding the appellant - insurer - original opponent no.2 - United India Insurance Company Limited liable to pay the compensation to the original claimants for the death of deceased is hereby quashed and set aside. On allowing the present appeal and quashing and setting aside the impugned judgment and award passed by the learned Tribunal so far as appellant Insurance Company is concerned, the appellant Insurance Company is concerned, the appellant Insurance Company shall be entitled to get back the amount which the appellant had deposited pursuant to the impugned judgment and award passed by the learned Tribunal. However, it is required to be noted that pursuant to the interim order passed by this Court dated 5.10.2009 passed in Civil Application No. 10896 of 2009 in First Appeal No. 3936 of 2009 the original claimant no.1 - Manjulaben wd/o Maheshbhai Ranchhodbhai Rohit (Chamar) was permitted to withdraw 30% of the amount and rest of the amount was directed to be invested in the name of original claimants in any Nationalized Bank but FDRs shall remain with Nazir of Claims Tribunal, Ahmedabad City, which require periodical renewal till First Appeal is decided by this Court and the original claimant no.1 - Manjulaben wd/o Maheshbhai Ranchhodbhai Rohit (Chamar) was allowed to receive the Page 18 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 monthly interest from the said FDR. By now more than 7 years have passed and original claimant no.1 - Manjulaben wd/o Maheshbhai Ranchhodbhai Rohit (Chamar) must have spent entire 30% which was permitted to withdraw and even periodical interest for their maintenance, it is observed that amount already withdrawn by the original claimants may not be recovered from them by the Insurance Company, however interest shall be entitled to get back the said amount from the owners of the vehicle involved in the accident. However, the appellant - Insurance Company shall be entitled to get back remaining amount from the Fixed Deposit Receipts lying with the Nazir of the Tribunal which were directed to be invested in the name of original claimants and which were directed to be kept in the Nazir, Ahmedabad City, without filing Execution Petition and the Tribunal is directed to pay the said amount to the appellant
- Insurance Company on production of certified copy of the present judgment and order. With this, present appeal is allowed. No costs.
12. In the case of Bimlaben Wd/o. Shankar Chunilal Pandit (supra), this Court has observed in para-12 and 14 as under:-
12. The sole surviving question is of the limit of liability of the Insurance company. In absence of any evidence at all in this regard, it is simply not possible to hold that the liability of the Insurance company was limited regarding the risk of passengers. As noted, the cover note demonstrated payment of additional premium for covering risk of the passengers. However, this would not automatically mean that there was any limit of liability of the Insurance company. If the Insurance company desired to establish this fact, the same had to be done either by producing the original policy or some reliable, irrefutable evidence which Page 19 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 would link the quantum of additional premium with the limit of liability of the Insurance company. On the mere ipse dixit of the Insurance company, such limit of liability cannot be believed. As noted, the Insurance company failed to produce the original policy on a somewhat curious ground that on account of frequent shifting of the branch office, entire record was lost. The claimants hotly disputed this and contend that the policy was held back from the Tribunal since it provided for unlimited liability.
14. Coming to the question of pay and recover, in decision in case of United India Insurance Company Limited v. Laxmamma (supra), the Supreme Court left the Insurance company to follow its remedies for recovery against the owner. I would also provide the same formula.
13. In the case of Laxmamma (supra), the Hon'ble Supreme Court has observed in para-20 and 21 as under:-
19. In our view, the legal position is this:
where the policy of insurance is issued by an authorized insurer on receipt of cheque towards payment of premium and such cheque is returned dishonoured, the liability of authorized insurer to indemnify third parties in respect of the liability which that policy covered subsists and it has to satisfy award of compensation by reason of the provisions of Sections 147(5) and 149(1) of the M. V. Act unless the policy of insurance is cancelled by the authorized insurer and intimation of such cancellation has reached the insured before the accident. In outher words, where the policy of insurance is issued by an authorized insurer to cover a vehicle on receipt of the cheque paid towards premium and the cheque gets dishonoured and before the accident of the vehicle occurs, such insurance company Page 20 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 cancels the policy of insurance and sends intimation thereof to the owner, the insurance company's liability to indemnify the third parties which taht policy covered ceases and the insurance company is not liable to satisfy awards of compensation in respect thereof.
20. Having regard to the above legal position, insofar as facts of the present case are concerned, the owner of the bus obtained policy of insurance from the insurer for the period April 16, 2004 to April 15, 2005 for which premium was paid through cheque on April 14, 2004. The accident occurrd on May 11, 2004. It was only thereafter that the insurer cancelled the insurance policy by communication dated May 13, 2004 on the ground of dishonour of cheque which was received by the owner of the vehicle on May 21, 2004. The cancellation of policy having been done by the insurer after the accident, the insurer became liable to satisfy award of compensation passed in favour of the claimants.
21. In view of the above, the judgment of the High Court impugned in the appeal does not call for any interference. Civil Appeal is dismissed. However, the insurer shall be at liberty to prosecute its remedy to recover the amount paid to the claimants from the insured.
No order as to costs."
14. While admitting this appeal, on 18.03.2011, the Division Bench of this Court has passed the following order in Civil Application No.3303 of 2011:-
1. Rule. Mr.Pandya, learned Counsel waives service of notice of Rule for the original claimants. The presence of the other parties to the proceedings may not be required at this stage.Page 21 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022
C/FA/1922/2007 JUDGMENT DATED: 10/10/2022
2. The present application is for interim injunction pending the First Appeal against the judgement and award passed by the Tribunal, which is impugned in the First Appeal.
3. Considering the facts and circumstances, there shall be interim injunction against the execution and implementation of the award passed by the Tribunal on condition that the applicant deposits the entire awarded amount together with the proportionate cost and interest with the Tribunal within a period of six weeks from today.
4. We have heard Mr.Mehta, learned Counsel for the applicant and Mr.Pandya, learned Counsel for the original claimants on the aspect of withdrawal.
5. Considering the facts and circumstances, out of the amount, which may be deposited, 10% of the amount shall be permitted to be withdrawn by the original claimants and the remaining 90% of the amount shall be invested by the Tribunal with a nationalized Bank in FDR initially for a period of three years and such investment shall be renewed from time to time until the appeal is finally disposed of, but the original claimant(s) shall be entitled for the periodical interest as and when it becomes due. The original FDR(s) shall be retained by the Nazir Department of the Tribunal.
6. The application is allowed to the aforesaid extent. Rule made absolute accordingly.
15. It is the case of the appellant that the deceased was travelling in tempo which is a goods carriage vehicle and, therefore, liability cannot be fastened on it and the order of the pay and recover ought not to have been passed by the Tribunal. Learned advocate for the appellant has contended Page 22 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 that the claimants have not challenged the impugned judgment and award. It is relevant to note that the original claimants have filed cross-objection, however, on account of none payment of court fees, the cross-objection came to be rejected and, thereafter, they have not taken any care to restore the same to its original file.
16. Having heard learned counsel appearing on behalf of the respective parties and perused the decisions cited at the bar and the record and proceedings the case, I am of the view that the present appeal deserves to be allowed and the impugned judgment and award passed by the Tribunal deserves to be modified.
17. In view of the above and for the reasons stated above, appeal succeeds. However, it is required to be noted that pursuant to the interim order passed by this Court dated 18.03.2011 passed in Civil Application No. 3303 of 2011 in First Appeal No. 913 of 2011 the original claimants were permitted to withdraw 10% of the amount and rest of the amount was directed to be invested in the name of original claimants in any Nationalized Bank but FDRs shall remain with Nazir of Claims Tribunal which require periodical renewal till First Appeal is decided by this Court and the original claimants were allowed to receive the monthly interest from the said FDR. The original claimants must have spent entire 10% which was permitted to withdraw and even periodical interest for their maintenance, it is observed that amount already withdrawn by the original claimants may not be recovered from them by the Insurance Company, however interest shall be entitled to get back the said amount from the owners of the vehicle involved in the accident. However, the appellant - Insurance Company shall be entitled to get back remaining amount from the Fixed Deposit Receipts lying with the Nazir of the Tribunal which were directed to be invested in the name of original claimants and which were directed to be kept in the Nazir without filing Execution Petition and the Tribunal is directed to pay the said amount to the appellant - Insurance Company on production of certified copy of the present judgment and order. With this, present appeal is allowed. No costs. Record and proceedings be sent back to the concerned Tribunal forthwith. Pending civil applications Page 23 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 shall stand disposed of accordingly.
13. In the decision in case of Sureshkumar Shakralal (supra) this Court has observed as under:-
10. It is pertinent to note that in the cross examination of this witness, he has admitted that in the Civil Hospital and during his treatment, he was inquired by Doctor as to how it occurred. In reply given by this witness, he has stated that they were sitting in the tractor and due to turtling of the tractor, he sustained injuries. It is admitted by this witness that Sureshbhai and Ankitaben were sitting in the trolley and due to turtling of the trolley, Ankitaben fell down and sustained injuries and ultimately succumbed due to grievous injuries. Karshanbhai Bababhai was also sitting in the trolley and too had sustained certain injuries. Whatever statement given by this witness in his Examinationin-Chief is contrary to cross-examination made by the other side. The same story is narrated by the complainant in his complaint Ex. 19 at the initial stage that Shakarabhai and his daughter Ankita Sureshbhai Darji were sitting in the trolley.
The injured Girishbhai Ramabhai also admitted this fact in his cross examination. He has tried to explain his previous statement that due to his misunderstanding, he has stated in his deposition that Sureshbhai and Ankitaben were sitting in the trolley of the tractor. While inquiring this witness by the court that what was misunderstanding, however, no reply was given by this witnesses. Panchnama was prepared in presence of the panchas and produced before the Tribunal vide ex. 20. No blood stains were found at the place of accident. No recovery was effected by the police in presence of panchas. In a certificate issued by the Medical Officer, General Hospital at Himatnagar dated 12th November, 1997 ie., on the date of accident, Girishbhai Ramabhai, injured has given history before the Doctor that motor vehicle tractor turned turtle and thus, injuries were caused. Therefore, there is a reason to believe that whatever further statement was given by the complainant before 14th November, 1997 was not true and correct. In fact, both the father and daughter were sitting in the trolley as gratuitous passengers and suddenly the driver turned the tractor, and Page 24 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 hence, the trolley attached with the tractor turned turtle and as a result therefore, Ankita fell down from the tractor sustaining injuries and she was admitted in Civil Hospital at Himatnagar where she passed away during the course of medical treatment. The findings of the Tribunal that if the deceased had been travelling on the tractor/trailer and the tractor/trailer had turned turtle, how injuries would have been different and that she would not have sustained injuries only on her liver, is unnecessarily. It appears that it was his own interpretation of the petitioner because the eye witness and father of the deceased have admitted that they were travelling in the tractor/trailer. Witness Girishbhai Ramabhai has given false statement in his examination-in- chief. However, he admits correct fact in his cross- examination, but after recalling him, as per order passed below Ex. 53, he has tried to help the claimants and when he was asked as to what misunderstanding was committed, he was not in a position to reply clearly, which itself indicates that he has deposed falsely. This Court is of the view that deceased was traveling as illegal passenger on a goods vehicle and her risk was neither required to be statutorily covered, nor it was covered as a matter of fact. The Tribunal has committed grave error in holding that the Insurance Company is liable to satisfied the Award.
11. The insurance policy of the motor vehicle Tractor/Trailer involved in the accident was produced at Exhibit 40. It was a joint policy of tractor/trailer, being registration No. GJ-9-B- 9151 and GJ-9-T-9592. As per the terms and conditions of the commercial vehicles "B" Policy, which relates to goods carrying vehicles, the Insurance Company shall not be liable to make any payment in respect of any accidental loss or damage suffered which the insured or any person driving with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs. Undisputedly, the deceased was travelling in a goods vehicle and the policy was of "B" type policy, she was not permitted to travel in the motor vehicle involved in the accident, and therefore, liability of the appellant Insurance Company cannot be held by the Tribunal.
12. Hence, the Tribunal has grossly erred in fixing liability of the compensation on the part of the appellant.
Page 25 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022C/FA/1922/2007 JUDGMENT DATED: 10/10/2022
13. In a similar case set of facts in the case of New India Assurance Co. Ltd. v. Heirs and Lrs of deceased Pravinsinh Ranubha Zala, reported in 2013(2)GLR 1580, this Court has taken a similar view, exonerating the Insurance Company and as per the facts of this case, the victim took the tractor on rental basis and while travelling on the tractor, she fell down and died. It was held by this court that the Insurance Company would not be liable under the third party insurance policy, as the position of the victim was as a gratuitous passenger. The amount of award was held recoverable from the owner of the tractor only and appeal preferred by the Insurance Company was allowed.
14. Considering the facts of this case, the present appeal is hereby allowed. Award passed by the learned Motor Accident Claims Tribunal (Aux.), 4th Fast Track Court, Sabarkantha at Himatnagar in M.A.C.P. No. 1596 of 1997 is hereby modified to the extent of exonerating the appellant- Insurance Company from the liability for paying compensation to the claimants. This court, in another First Appeal No. 2194 of 2007, was pleased to held the liability of the appellant Company, considering the peculiar facts and circumstances of the case. In this case, it was found by this Court that there was clear admission on the part of the claimant that vehicle jeep was taken on hire, however, it was a private jeep. This Court of course held that there was a definite violation of terms and conditions of the Insurance, so far the Injury caused to the passengers of the vehicles were concerned. In this case, out of all passengers only the victim was died. However, both in the FIR and in the affidavit-in-chief , it was specifically stated that as a vehicle turned turtle, the victim sitting in the vehicle was thrown out of the same and she came under the rear part of the vehicle and sustained fatal injuries. In the cross-examination, no suggestion was put to the said witness that the deceased was not thrown out of the jeep, but was very much within the jeep in such situation. It was found by this Court that factually it was well established, when the jeep was fallen into ditch, out of all passengers, the victim was thrown out of the jeep and had fallen on the road and over her body, the rear portion of the jeep had struck, resulting in her death. Therefore, this Court was of the view that though the Page 26 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 initial entry in the jeep as a passenger was in violation of the terms of agreement, the moment such a passenger, due to negligence on the part of the driver of the jeep, had been thrown out of the jeep and thereafter, the rear portion of the jeep itself had fallen upon her body, the position of the said passenger must be treated to be that of "a thirdparty" with reference to the jeep. Considering the peculiar facts, the First Appeal No. 2194 of 2007 was dismissed holding the liability of the Insurance company to pay the compensation to the claimants. Here, in the present case, this is not the position as both the passengers were sitting on the tractor, and therefore, the liability of paying compensation by the appellant-Insurance Company does not arise.
15. The appellant/Insurance Company is exonerated from the liability of paying compensation to the claimants. As agreed by both the parties, the amount deposited by the appellant/Insurance Company to the tune of Rs. 30,000/- and already recovered by the claimant shall not be recovered by the appellant. Appeal stands allowed to the aforesaid extent.
14. From the aforesaid observations by this Court and in view of the facts and circumstance of the present case and the contentions raised by learned advocate for the appellant, the impugned judgment and award is hereby modified to the extent that the appellant insurance company is hereby exonerated from its liability to satisfy the claim of the original claimants.
15. However, it is open for the original claimants to recover the amount of compensation from the owner of the offending vehicle involved in the alleged accident.
16. It is clarified that the amount which is deposited by Page 27 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022 C/FA/1922/2007 JUDGMENT DATED: 10/10/2022 the appellant insurance company either before this Court or before the learned Tribunal and kept in the FDR, be refunded to the appellant insurance company with proportionate cost and interest. It is also further clarified that whatever amount disbursed in favour of the original claimants, as per the earlier order passed by this Court, the same shall not be recovered from the original claimants by the appellant insurance company but the same shall be recovered by the insurance company from the owner of the offending vehicle involved in the accident i.e. owner of the Tractor-Trolley.
17. The amount deposited by the appellant insurance company before this Court or the statutory amount deposited by the insurance company before this Court be transmitted to the learned Tribunal if not transmitted, the same shall be refunded to the appellant insurance company by the learned Tribunal after verifying the details and after receipt of the order through R.T.G.S.
18. The present first appeal is hereby partly allowed to the extent that present appellant insurance company is exonerated from the liability to indemnify and satisfy the impugned judgment and award, as the same is covered by the ratio laid down by this Court and by the Hon'ble Apex Court.
Page 28 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022C/FA/1922/2007 JUDGMENT DATED: 10/10/2022
19. With aforesaid directions all the First Appeals are hereby allowed. No order as to costs.
20. The record and proceedings be sent back to the concerned tribunal forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 29 of 29 Downloaded on : Sun Dec 25 03:41:57 IST 2022