Gujarat High Court
Bhandharpada vs Keshuben on 11 August, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FAO/92200/1991 21/ 21 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 92 of 2009
With
CIVIL
APPLICATION No. 208 of 2009
In
FIRST APPEAL No. 92 of 2009
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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 ?
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BHANDHARPADA
JUTH GALICHA GRUH - Appellant(s)
Versus
KESHUBEN
RUVAJIBHAI SHAMJIBHAI & 7 - Defendant(s)
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Appearance
:
MRHARSHITSTOLIA
for Appellant(s) : 1,MRPARTHSTOLIA
for Appellant(s) : 1,
None for Defendant(s) : 1 - 7.
- for
Defendant(s) :
8,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/05/2009
ORAL
ORDER
1. Heard learned advocate Mr.Tolia for appellant owner of vehicle.
2. In this appeal, appellant has challenged award passed by MAC Tribunal, Surat in MACP No.644 of 1996. Before claims Tribunal, respondent No.2 present appellant remained absent. The driver also remained absent. Therefore, against opponent Nos.1 and 2, claims Tribunal has decided matter ex-parte.
3. The observations made in Para.5 by claims Tribunal that opponent Nos.1 and 2 which includes appellant have been duly served with summons of petition but they have not appeared and therefore, they have been proceeded ex-parte. So appellant has not filed any reply before claims Tribunal. No contention has been raised and no evidence has been led and therefore, matter has been decided by claims Tribunal in absence of appellant. The Insurance Co. has raised contention that owner of tempo insured was under an obligation to take all precautions to ensure safety of the goods and should not have allowed any unauthorized passengers to travel in the said tempo. Therefore, according to him, insured owner has deliberately committed breach of contract and therefore, Insurance Co. is not liable to pay any amount of compensation because coverage for carrying unauthorized passengers in goods vehicle not given and extended in favour of owner of vehicle.
4. Learned advocate Mr.Tolia submitted that summons was not served, cannot be believed or accepted in light of observations made by claims Tribunal in Para.5 of award. This Court has to rely upon observations made by claims Tribunal. If appellate is challenging or disputing it then remedy is to approach the claims Tribunal and not to this Court.
5. The accident occurred on 6.6.1996 as per evidence of applicant No.3 Ranjitbhai Ruvajibhai at Exh.28. That his father deceased Ruvajibhai Shamjibhai was going in tempo No.GQC 4997 with goods of Juvar and fare was decided with goods and he was seated in cabin and at that time due to speed of tempo door of tempo was opened and thereby Ruvajibhai was thrown out and wheel of the tempo was rolled on him and thereby, he died. In cross-examination, this witness has admitted the fact that he was not present when accident was happened and he has not witnessed to incident. The claims Tribunal has considered question of liability while deciding Issue Nos.1 and 2 that accident occurred due to fault of opponent no.1, accident was caused and he was liable for causing accident and therefore, issue Nos.1 and 2 are decided accordingly. The Insurance policy was produced at Exh.38 wherefrom it appears that during the period from 10.8.1995 to 9.8.1996, tempo No.GQC 4997 was owned by opponent No.2 present appellant and it was insured with opponent No.3 Insurance Co. Therefore, it is very clear that on the date of accident 6.6.1996, owner of the tempo was opponent No.2 and as accident was caused due to fault of opponent No.1 driver of tempo, opponent Nos.1 and 2 are liable to pay compensation jointly and severally. From perusal of Insurance policy, Exh.38, it appears that tempo was at the relevant time insured with opponent No.3 Insurance Co. and opponent No.3 has also admitted same position but, it is defence of opponent No.3 that tempo was goods vehicle and in goods vehicle, passengers are not permitted to travel and when passengers are travelling in goods vehicle, at that time Insurance Co. is not liable to pay compensation as the risk of gratuitous passengers is not covered under the insurance policy. Therefore, question has been examined by claims Tribunal in Para.15 after considering various decisions and provisions of Section 147 of MV Act and come to conclusion in Para.27 that when gratuitous passenger is travelling in the goods vehicle at that time Insurance Co. of the said vehicle is not liable to pay compensation, only when owner of the goods or representative of him is travelling in goods vehicle in such cases Insurance Co. is liable to pay compensation. Relevant discussion made by claims Tribunal in award are in Para.7 to 34 which are quoted as under :
7. The opponent No.1 and 2 being driver and the owner have not defended the petition and therefore the opponent no.3 is permitted to defend the petition on merits by passing reasoned order below exh.29, application of the opponent no.3 and therefore the opponent no.3 has defended on merits.
8. I have considered the written argument of Ld. Adv. of the applicants exh.36 and oral argument of Ld. Adv. of the opponent no.3.
9. In this petition, following issues have been raised for my determination.
Whether the applicants prove that the accident was caused due to negligence or wrongful act or fault of the driver of the alleged vehicle?
Who is liable for causing accident?
Who is liable to pay compensation?
Whether the applicants are entitled for compensation?
What order and award?
10. My findings on the above issues are as under.
In the affirmative.
Opponent no.1 Opponent no.1 and 2 are liable to pay the compensation jointly and severally.
In the affirmative, Rs.3,10,500/-
As per final order.
REASONS ISSUE NO.1 & 2
11. In this case, the applicant no.3 Ranjitbhai Ruvajibhai has made deposition at exh.28. According to the School Leaving Certificate at exh.26 his date of birth is 02.07.1979 and therefore his age was about 27 years when his deposition given. The applicant no.3 Ranjitbhai Ruvajibhai has stated in his deposition exh.28 that on dated 6.6.96 his father deceased Ruvajibhai Shamjibhai was going in tempo No.GQC-4997 with goods of Juvar and the fair was decided with goods and he was seated in the cabin and at that time due to speed of the tempo the door of tempo was opened and thereby Ruvajibhai was thrown out and the wheel of the tempo was rolled on him and thereby he was died. In cross-examination, this witness has admitted the fact that he was not present when the accident was happened and he has not witnessed the accident.
11. The applicants have produced the true copy of the FIR at exh.21. Referring to exh.21, it appears that on dated 6.6.96 at about 6.00 am, the accident was caused and at about 9.30 am the applicant no.4 Rohitkumar Ruvajibhai, the son of the deceased had lodged complaint before the police and in this complaint he had disclosed that, his father Ruvajibhai Shamjibhai was going on tempo vehicle and the door of the tempo was opened and due to that, he was thrown out and was came under the wheels of the tempo and he had suffered injuries. It further stated that the tempo was owned by Bandharpada Juth Galiya Gruh Sahkari Mandali Ltd. (opponent no2.).
12. The applicants have produced the charge patrak at exh.23. Referring to exh.23, it appears that as per the FIR exh.21, the offence was registered in Vyara Police Station and the police had investigated the case and had submitted charge-sheet against the opponent no.1 Panubhai Harjibhai Gamit U/s. 304-A, 279, 304 of IPC and for other offences. Referring to exh.23, it appears that the accident was caused by the tempo no. GQC 4997 and at that time the tempo was being driving by the opponent no.1 and therefore referring to exh.23 and referring to FIR exh.21, it appears that the accident was caused by the tempo no. GQC 4997, and the said tempo was being driven by the opponent no.1 and due to the fault of opponent no1. The accident was caused and he was liable for causing the accident and therefore issue no.1 and 2 are decided accordingly.
ISSUE NO.3
13. Referring to the Insurance policy exh.38, it appears that during the period from dated 10.8.95 to 9.8.96, the tempo no. GQC 4997 was owned by the opponent no.2 Dandharpada Juth Galiya Gruh Sahkari Mandali Ltd. and it was insured with opponent No.3 Insurance company and therefore it is from very clear that on the date of the accident i.e. 6.6.96, the owner of the tempo was the opponent no.2 and as the accident was caused due to the fault of opponent no.1 driver of the tempo opponent no.1 and 2 are liable to pay the compensation jointly and severally.
14. As per the Insurance policy exh.38, the tempo was at the relevant time insured with the opponent no.3 Insurance company and learned advocate of the opponent no.3 has also admitted the same position, but it is the defence of the opponent no.3 that the tempo was goods vehicle and in goods vehicle, the passengers are not permitted to travel and when passengers are traveling in goods vehicle, at that time the Insurance company is not liable to pay the compensation as the risk of gratuitous passenger is not covered under the insurance policy. Therefore, it is to be decided that whether the opponent no.3 Insurance company is liable to pay t he compensation or not.
15. Referring to the panchnama of tempo, it appears that the tempo was goods vehicle owned by the Bandharpada Juth Galiya Gruh Sahkari Mandali Ltd. (opponent no.2). The learned advocate of the applicants has also admitted the said fact and by evidence exh.38 also, it appears that the tempo was goods vehicle and it is very clear that involved vehicle was the goods vehicle. Therefore, the position of law shall require to be discussed whether the Insurance company is liable when the gratuitous passenger is traveling in goods vehicle and he suffered injuries in the accident.
16. The provision of Sec. 147 of MVA is as under:
147.
Requirements of policies and limits of liability (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer, and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-
(1) against any liability which may be incurred by him in respect of death of or bodily 22. Subs. By Act 54 of 1994, sec.46, for injury to any person (w.e.f. 14.11.1994). [Injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
Provided that a policy shall not be required.
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
17. The question arise before the Hon'ble Supreme Court, whether the Insurance Co. is liable to pay the compensation when the gratuitous passengers are traveling in the goods vehicle and in the case of New India Assurance Co. Vs. Satpal Singh and ors. Reported in 2000 (1) SCC 237= 2000 ACJ 1 (SC). The Hon'ble Supreme Court had held that, The result is that under the new Act (M.V. Act 1988) an insurance policy covering third- party risk is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type of class. Hence the decisions rendered under the old Act via-a-via gratuitous passengers are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force.
18. Again the said legal position was re-hesitated before the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. Aash Rani reported in 2003 (2) GLR 1001 (SC)= AIR 2003 SV 607= 2003(2) SCC 223= 2003 ACJ 1 (SC) and in that case, the Hon'ble Supreme Court had held that the Insurance Co. is not liable for payment of any compensation for injury sustained or death caused of gratuitous passengers travelling in goods vehicle.
19. The principle held in Asha Rani case was followed by the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy, reported in 2003 (2) GLR 1608 (SC)= AIR 2003 SC 1009= 2003 (2) SCC 339= GLR 2003 ACJ 468 (SC) and it was again followed in National Insurance Co. Ltd. Vs. Ajit Kumar reported in 2003 (9) SCC 668 = 2003 ACJ 1931 (SC).
20. The question when the owner of the goods or representative of him is traveling in goods vehicle in that case whether the Insurance co. is liable to pay the compensation or not was decided by the Hon'ble Supreme Court in the case of Ramesh Kumar Vs. National Insurance Co. Ltd. reported in 2001 (3) TAC 639 (SC) considering the amendment made in the year 1994 in sub-cause (b)(i) of sub section 147 (1) in the Act. The Hon'ble Supreme Court has held that when the owner of the goods or his authorised representative carried in the vehicle, at that time the Insurance co. of the goods vehicle is liable to pay the compensation for injury sustained to such person or the heirs of him, when the death is caused to such persons.
21. Therefore, the Supreme Court had cleared the position in Asha Rani case, when the gratuitous passenger is traveling in goods vehicle at that time the Insurance Co. is not liable to pay the compensation as provided in Sec.147 of the Act. Only, when the owner of the goods or his representative is traveling in the goods vehicle then only in such case, the Insurance Co. is liable to pay the compensation.
22. As observation made in Asha Rani case in para 26 of the judgment is reproduced as below.
In view of the changes in the relevant provisions in the 1988 vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words, any person must also be attributed having regard to the context in which they have been used i.e. a third party. Keeping in view of the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefore.
23. Thereafter, against the said legal position was decided by the Full Bench (3 Judges bench) of the Hon'ble Supreme Court the case of National Insurance Co. Ltd. Vs. Baljit Kaur & Ors. Reported in 2004 (2) GLR 1071 = 2004 ACJ 428 (SC). In this case (Baljit Kaur's case) the Hon'ble Supreme Court has observed and held in para 17 and 20 of the judgment as below.
By reasons of the 1994 amendment what was added is, including owner of the goods or his authorised representative carried in the vehicle. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of parliament, therefore, could not have been that the words 'any person' occurring in section 147 would cover all persons who were traveling in goods carriage in any capacity whatsoever. If such was the intention there was no necessity of Parliament to carry out an amendment inasmuch as the expression 'any person' contained in sub-clause (i) of Clause (b) of Sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise. (para 17).
It is therefore, manifest that in spite of the amendment of 1994 the effect of the provision contained in Sec.147 with respect to persons other than the owner of the goods or his authorised 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 of contract of insurance was entered into, nor was any premium paid to the benefit of insurance to such category of people. (para 20)
24. Thereafter again, the said legal position was reconsidered by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Bommithi Subbayamma and others reported in 2005 2005 ACJ 721. The Division Bench of the Hon'ble Supreme Court after considering the previous judgments of the Supreme Court given in Asha Rani case, Baljit Kaur case and other cases, has observed and held as below.
It was not the intention of the legislature to provide for hability 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 extent of the benefit of insurance to such category of people. (para 8).
In view of the aforementioned authoritative pronouncements of this Court, the impugned judgments of the High Court cannot be sustained which is set aside accordingly. This appear 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 Accidents Claims Tribunal from the owner of the vehicle. No costs. (-para 10).
25. Referring to the judgment of the Baljit Kaur and Bommithi, it appears in Baljit Kaur case, the Full Bench (3 Judges) of the Hon'ble Supreme Court was consisting the Hon'ble the Chief Justice V.N. Khare, Hon'ble Justice S.B. Sinha and Hon'ble Dr. Justice A.R. Lakshamanan and in Bommithi case, the Division Bench of Hon'ble Supreme Court was consists Hon'ble Justice S.B. Sinha and Hon'ble Dr. Justice A.R. Laxshamanan. It appears that Bommithi case, two Hon'ble Justice of the Hon'ble Supreme Court were the same.
26. Thereafter again the Full Bench (3 Judges bench) of the Hon'ble Supreme Court has considered the position in the case of M.V. Jayadevapa & Anor Vs. Oriental Fire & General Insurance Co. Ltd., reported in (2005) ACC 472 (SC). The Hon'ble Supreme Court has held that, The submission of the learned Counsel for the appellant has been that the vehicle being a passengers vehicle, the liability should have been passed on the Insurance Company without regard to the fact whether the passengers were gratuitous or not. Having perused the particulars of the vehicle, as given in the Insurance Policy, we are satisfied that the vehicle could not have carried passengers. The vehicle seems to have been a goods vehicle. The owner of the vehicle is liable to pay the compensation and Insurance Co. is not liable. The High Court has right exonerated the Insurance Company.
27. As per the above discussion, the Hon'ble Supreme Court has made clear that when the gratuitous passenger is traveling in the goods vehicle at that time the Insurance Co. of the said vehicle is not liable to pay the compensation, only when the owner of the goods or representative of him is traveling in goods vehicle only in such cases, the Insurance Co. is liable to pay the compensation.
28. The Ld. Adv. of the applicants has cited New India Assurance Co. Ltd. Vs. Sunita Nandkishore Borkar reported in 2006 TAC 204 of Bombay High Court. Referring to this judgment, it appears that before the Hon'ble Bombay High Court, the recent judgment of Full bench (3 Judges of Hon'ble Supreme Court) in the case of M.V. Jayadevappa & Anr. Vs. Oriental Fire ^ General Insurance Co. Ltd. , reported in (2005) ACC 472 (SC) was not cited, therefore, the said judgment was not considered by the Hon'ble Bombay High Court. Therefore, by considering this Bombay High Court judgment, the recent judgment of the Full Bench of the Hon'ble Supreme Court given in case of M.V. Jayadevappa & Anr. Vs. Oriental Fire & General Insurance Co. Ltd. cannot be discarded and it cannot be held that the Insurance Co. shall be directed to deposit the amount of compensation in the Tribunal.
29. Ld. Adv. of the applicants has further submitted that the judgment given in Bommithi Subbhayamma case (supra) was given by Two Judges of the Hon'ble Supreme Court and, therefore, the judgments given in Baljit Kaur case by the Full Bench of the Hon'ble Supreme Court is prevailing upon the said judgment, but this submission is not acceptable, as in recent judgment M.V. Jayadevappa case (supra), Full Bench of the Hon'ble Supreme Court has held that the Insurance Co. is not liable.
30. Referring to para 21 of the judgment of the Baljit Kaur case (supra), it appears that while interpreting para 21 of the judgment misunderstanding may be made and therefore the interpretation of para 21 shall be made correctly while interpreting the said para. Reading para 21, it appears clearly that the Hon'ble Supreme Court has cleared that the upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy to decree. But, in the fact of that case, the Hon'ble Supreme Court had further observed that, the question, however, would be as to whether keeping in view the fact that law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect . Observing this fact in that case, the Supreme Court had directed to Insurance Co. to satisfy the awarded amount in favour of the claimant as per order passed by the Tribunal, if not already satisfied by the Insurance Co. and further directed to Insurance Co. to recover the same amount from the owner of the vehicle.
31. The Hon'ble Supreme Court has powers to make order for prospective over-rulling of any judgment. Prospective over rulling means the judgment given by the Supreme Court will not affect previous litigation decided and only after the date of the judgment of the Hon'ble Supreme Court the ratio laid down by the Hon'ble Supreme Court will affect. The only Hon'ble Supreme Court has such power for prospective over-rulling and no other Court has such power. Referring to para 21 of the judgment, it appears that the Hon'ble Supreme Court had in that particular case, not applied the ratio decided in that case (Baljit Kaur case) and the Insurance co. was directed to deposit the awarded amount in favour of the claimant. But, that direction was given by the Hon'ble Supreme Court in that particular case, under the powers of Hon'ble Supreme Court and, therefore by directions given by the Hon'ble Supreme Court in that particular case, in very case, the Tribunal of the country may not pass such order as the Tribunal have no such power and the Tribunal are bound by the ratio decided by the Hon'ble Supreme Court.
32. Referring to the above discussed judgment of the Hon'ble Supreme Court given in the Bommitthi case (supra) and given in the M.V. Jayadevappa case (supra) also, it appears that the Hon'ble Supreme Court has considered the ratio decided in Baljit Kaur case and has held that when gratuitous passenger is travelling in goods vehicle at that time insurer of the vehicle is not liable and the owner of the vehicle is only liable to pay the compensation. Therefore, the ratio decided by Hon'ble Supreme Court shall be followed by this Tribunal and therefore, it is held that in this case the opponent no.3 Insurance Co. is not liable to pay the compensation as the deceased was gratuitous passengers traveling in the goods vehicle.
33. The applicant No.3 Ranjitbhai Ruvajibhai has stated in his deposition that his father was traveling with goods of Juwar but this witness was not present at the time of the accident and he is not witness to the occurrence. The FIR was given by the applicant no.4 Rohit Ruvajibhai, the son of the deceased and he had not stated that his father (deceased) was going with the goods. The deceased had not hired the tempo for goods. Therefore, it is very clear that deceased was gratuitous passenger traveling in a goods vehicle.
34. Therefore, it is held that the opponent no.3 Insurance co. is not liable to pay the compensation to the applicants and held that the opponent no.1 and 2 are liable to pay the compensation to the applicants and, therefore, issue no.3 is decided accordingly.
5.1 Before claims Tribunal only evidence was available of applicant No.3 - Ranjitbhai Ruvajibhai, who has stated in his deposition that his father was traveling with goods of Juwar and he is not witness to occurrence. The FIR was given by applicant no.4 Rohit Ruvajibhai, son of deceased and he had not stated that his father had hired the tempo for goods. Therefore, it is very clear that deceased was gratuitous passenger traveling in a goods vehicle. Accordingly, claims Tribunal has come to conclusion that opponent no.3 Insurance co. is not liable to pay compensation to applicants and opponent nos.1 and 2 are liable to pay compensation to the applicants and, therefore, issue no.3 is decided accordingly.
6. Learned advocate Mr.Tolia has submitted that he has referred number of authorities in his appeal memo which is quoted as under :
(I)That the Hon'ble Tribunal has failed to appreciate the following aspects in its true perspective which has ended in miscarriage of justice:-
(i) According to the claimants, the deceased Ruvajibhai was travelling along with his goods in the vehicle at the relevant time and he had paid the fare for the same.
This evidence is not controverted or burden is not discharged by leading any evidence by respondent No.8 insurance company. The burden lies on the respondent No.8 insurance company to prove that the deceased was travelling as gratuitous or unauthorized passenger and that also without any goods at the relevant time. Witness for the claimant Ranjitbhai Exh-28 has clearly deposed in his deposition that the deceased was travelling along with the crops of Juwar which was 10 Mond (200 kg) and he had paid the fare for the same and he was going to sell his Juwar in the Market of Bandharpada. In these circumstances, it cannot be said that the deceased was travelling as unauthorized or gratuitous passenger.
(ii) That the contract between the insured and the Company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties, in view of the provisions of the Act. Once the company had undertaken the liability to third parties incurred by the persons specified in the policy, the third parties right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy. Considering this aspect of the terms of the policy, it is reasonable conclude that the proviso of the policy is a mere condition affecting the rights of the insurance and the persons to whom the cover of policy was extended by the company does not come in the way of third party's claim against the company. These principles are discussed by the Hon'ble Supreme Court in AIR 1964 Supreme Court 1736 in the case of New Asiatic Insurance Company vs. Pasumal Dhanamal Aswani.
(iii) The principles laid down in the case of British India General Insurance Company v. Captain Itbar Singh reported in AIR 1959 SC 1331;
(iv) The aforesaid principles have been relied upon and discussed in the case of National Insurance Company Ltd. v. Swaran Singh and others reported in 2004 (2) GLR 989 (SC). Various pronouncements have been well discussed and well appreciated in this authority by the Hon'ble Supreme Court, which have not been taken into consideration by the Hon'ble Tribunal.
(v) The principles laid down by this Hon'ble Court reported in 2006(1) GLR 668 in the case of New India Assurance Company Ltd. V. Rajabhai Varshangbhai Bharwad. In the cited cases, the Hon'ble Tribunal had directed the insurer to pay amount to claimant and thereafter to recover from the insured. In this case, deceased was a gratuitous passenger. The direction and order given by the Tribunal was affirmed by this Hon'ble Court in the aforesaid case. In the said case, reliance has been placed on the following authorities:-
(a) AIR 2004 SCW 952 Oriental Insurance Company Vs. Nanjappan & Ors.
(b) (2001) 2 SCC 491 Oriental Insurance Company Vs. Cheruvakkara Nafeessu
(c) 2003(2) GLR 1684 Oriental Insurance Company Vs. Firdos Pervez Mysorewala It is respectfully submitted that therefore, it is clear that the Ld. Tribunal has erred in holding that the tribunal has no right to give any direction to the insurance company to deposit the amount. This material aspect has not been appreciated by the Ld. Tribunal.
(vi) Principles laid down in the case of Baljit Kaur reported in 2004 (2) GLR 1701 = 2004 ACJ (SC) 428. In the said decision, the insurance company is directed to deposit the amount and therefore, in the instant case also, the Ld. Tribunal ought to have directed the respondent No.8 insurance company to deposit the amount.
(vii) 2003 (2) GLH 256 (SC) Lehru's case- in the aforesaid case, the Hon'ble Apex Court has directed insurance company to deposit the amount.
(viii) 2006 (3) GLR 2224 (SC) Kusumrai's case in this authority, the insurance company is directed to deposit the amount in the Tribunal.
(ix) 2007 (3) GLR (SC) in this authority, the insurance company is directed to deposit the amount of compensation.
(x) 2003 (2) GLR 1784 it is laid down in this authority that even if in the case of limited liability, the insurance company has to pay the entire amount (exceeding its liability) of award and thereafter, it can recover from the insured. Reliance has been placed on the following authorities :-
(a) 2002 (2) SCC 278
(b) 1998 (3) SCC 744
(c) 2001 (2) GLR 1219
(d) 2001 (2) SCC 491
(xi) 2003 (2) GLR 1771 (SC)-It was a case of fake licence it was laid down that insurance company must pay entire amount and at the most it can recover from the insured. Reliance was placed on the following authorities :-
(a) 2002 (1) GLR 916 (S.C.)
(b) 1979 (4) SCC 128
(c) 1996 (5) SCC 21
(d) 1987 (2) SCC 654
(xii) the provision of Sec.147 and Sec.149 of MV Act,1988.
(j) That the Hon'ble Tribunal has erred in holding that the directions given by the Hon'ble Supreme Court in that particular case, in every case, the Tribunal of the Country may not pass such order as the Tribunal have no such power. It is respectfully submitted that in aforesaid number of principles, it is laid down and made it clear that the Tribunal can direct the insurer to pay the amount of compensation and thereafter, recover from the Insurance company. It is respectfully submitted that all the Tribunals are bound by the principles laid down by the Hon'ble Apex Court and this Hon'ble Court.
(k) That the Hon'ble Tribunal has erred in holding that the deceased was a gratuitous passenger travelling in a goods vehicle.
(l) That the Hon'ble Tribunal has erred in awarding an amount of Rs.3,10,500/-
in favour of Respondent Nos.1 to 6 ori. Claimants. As a matter of fact, respondent Nos.1 to 6 are not entitled to any amount of compensation looking to the facts, evidence and circumstances of the case as well as established principles of law. Even if it is believed that they are entitled to compensation, then the amount awarded is excessive and more than prescribed norms.
6. I have considered various decisions as referred in Ground I to L of memo of appeal. But main thing is that appellant remained absent before claims Tribunal. The contention is that summons is not received by appellant. For that Court has to believe observations made by claims Tribunal in Para.5. Therefore, this Court will not accept submissions made by learned advocate Mr.Tolia. The claims Tribunal has decided Issue No.3 from Para.13 to 34 and discussed entire law on the subject and then, come to conclusion that there is no sufficient evidence on record produced by claimant that deceased was travelling as an owner of the goods in goods vehicle on the date of accident. The son of deceased was examined, who was not witness to the accident. The another son who has filed complaint has not mentioned in the complaint that his father was travelling as an owner of the goods Juvar. Merely pleadings in claim petition have no evidentiary value unless it has been supported by oral evidence of claimant or there was evidence from owner or driver to prove facts that deceased was travelling as an owner of goods.
7. In light of these facts, claims Tribunal has rightly examined matter and rightly come to conclusion that deceased was gratuitous passenger and Insurance Co. is not liable to pay compensation to claimants and only driver and owner are liable to pay compensation. Therefore, contention raised by learned advocate Mr.Tolia cannot be accepted and same are rejected. Therefore, there is no substance in present appeal. Accordingly, present appeal is dismissed.
8. Today, this Court has disposed of first appeal and, therefore, no order is required to be made on civil application for stay, therefore, civil application for stay is disposed of accordingly.
9. Amount, if any, deposited by appellant in the Registry of this court be transmitted to claims tribunal concerned immediately.
(H.K.RATHOD,J.) (vipul) Top