Gujarat High Court
New India Assurance Co Ltd vs Kaliben Mohanbhai Adivasi (Satel) on 1 August, 2025
NEUTRAL CITATION
C/FA/3506/2012 JUDGMENT DATED: 01/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3506 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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NEW INDIA ASSURANCE CO LTD
Versus
KALIBEN MOHANBHAI ADIVASI (SATEL) & ORS.
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 5
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CORAM:HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 01/08/2025
ORAL JUDGMENT
1. The Appellant i.e., the New India Assurance Co. Limited (Insurer of Tractor No. GJ-11-W-5139 and Trailer No. GJ-11-M-647) has preferred the present Appeal under Section 173 of the Motor Vehicles Act, 1988 challenging the judgment and award dated 23.07.2012 passed in Claim Petition No. 1289 of 2004, whereby, the amount of Rs. 5,05,000/- with interest of 8% p.a and cost came to be passed against the Insurance Company and the owner of the Tractor namely Karashanbhai Khimabhai Pithiya, Respondent No. 5 herein.
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2. Ld. Advocate Mr. Palak Thakkar appearing for the Appellant herein, would submit that Ld. Trial Court has committed error apparent on the face of the record, more particularly, when it is the case of the Org. Applicant that the deceased Mohanbhai was traveling by siting on the mudguard of the Tractor as an unauthorized passenger. It is further submitted that the insured trolley does not cover the risk of such unauthorized passenger. That there is a breach of terms and conditions of the insurance policy and therefore, also the Tribunal committed grave error in allowing the claim of the applicants. It is further submitted that the sitting capacity including driver of the Tractor is only one and therefore, no person other then driver of the tractor is allowed on the tractor. It is further submitted that on perusal of the FIR at Exh. 30 and the oral evidence of the present Respondent and Org. Claimant No. 1, the deceased was traveling in the Tractor by siting on the mudguard of the tractor is clearly established however, the Tribunal has materially erred in allowing the claim petition. Thus, the Tribunal ought to have rejected the Claim Petition of the Org. Claimants. That the Trial Court has further materially erred in holding that the deceased was working as labourer in Tractor or was traveling in the capacity as a labourer in the tractor and in absence of any pleading to the effect that the deceased was working as a labourer, the Ld. Tribunal ought to have rejected the Claim Petition. The last ground which has been contended by the Ld. Advocate that the Ld. Trial Court erred in awarding more compensation then what it was originally prayed for in the Claim Petition and as thus, argued to allowed the Page 2 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025 NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined present Appeal.
3. Ld. Advocate Mr. Palak Thakkar has relied upon the judgment in the case of Shankar Chakravarti vs Britannia Biscuit Co.Ltd. & Anr reported in AIR 1979 SC 1652 to contend that that the pleadings which are not made by the parties in the Claim cannot be allowed to lead the evidence to that effect and thus, when basis pleadings of the claimants to the effect that the deceased was traveling in trolley as a laborer have not averred in the claim Petition, the Tribunal ought not to have passed the claim in favour of the Org. Ld. Advocate for the appellant has also relied on the judgment in the case of National Insurance Company Ltd. vs Mohanjit Kaur And Ors. Reported in 2005 ACJ 654, wherein it is held that facts not specifically pleaded cannot be proved and no evidence can be taken into consideration on facts, which have not been pleaded. Ld. Advocate Mr. Palak Thakkar has also relied upon the judgment in the case of National Insurance Company Ltd. Versus Ditahai Raysingbhai Labana & Ors. In R/First Appeal No. 103 of 2002 (Oral Judgment dated 15.03.2022) and National Insurance Company Ltd. Versus Pruthavisinh Takhatsinh Zala & Ors. (and allied matters) in R/First Appeal No. 136 of 2018 (Common oral Judgment dated 30.09.2024) and contended that the Insurance Company cannot be saddled with the responsibility of compensation when there is breach of terms and conditions of the insurance policy and has thus, argued to allow the present Appeal.
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4. Ld. Advocate Mr. Hemal Shah for the Org. Claimants and the Respondent Nos. 1 to 4 herein, has contended that:-
4.1 On perusal of the Affidavit filed before the Tribunal at Exh. 27, it would be amply clear that he was traveling in the trolley attaching to the Tractor as a labourer along with other labourers when the fateful accident took place, under such circumstances, the Tribunal has correctly passed the award. That even otherwise, the factum of amount of Rs. 125/- for five labourer under the Workmen Compensation Act has been recovered by the Insurance Company and under such circumstances, the Insurance Company cannot be exonerated and the Appeal deserves to be rejected. Lastly Ld. Advocate for Mr. Hemal Shah for the Org. Claimant has relied upon the judgment of Shivraj Vs. Rajendra and another reported in 2018(10) SCC 432 to contend that even if this Court is of the opinion that the Insurance Company is not liable for the compensation to be paid to the Org. Claimants in the reasons that the deceased was traveling by siting on the mudguard of the Tractor still this Court can pass the order of pay and recovery and hence, as alternatively argued to pass the order of pay and recover.
Though, served none appears for respondent No. 5 herein (Owner of tractor).
5. Heard Ld. Advocates for the respective parties.
Page 4 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined 5.1 The factum of accident, deceased Mohanbhai Adivasi traveling by seating on the mudguard of the tractor and complaint to that effect is clearly surfacing on the record of the case. It is also not in the dispute that certificate of registration of the alleged vehicle reflects seating capacity including driver as only one. It is also evident from the order passed by the Ld. Tribunal wherein it is observed that it was the duty of the driver to see that no person seats on the mudguard of the tractor. It is also evident from the cross examination of the Claimant at Exh. 27, wherein, Kaliben Mohanbhai Adivasi has admitted that his husband was traveling on the mudguard of the tractor as stated in the claim Petition as well as the complaint and in police statement. If the complaint Exh. 13 is also taken into consideration, it is clearly stated that the driver of the tractor was driving the tractor negligently and at full speed and as and when they reached near Cosmoplex Cinema, Mohanbhai suddenly fell down.
5.2 It is also required to be noted that in the claim Petition exhibit 1 , the Applicant narrated the said fact in para 10 by interalia stating the facts of the incident that the deceased Mohanbhai was seating on the mudguard of the tractor No. GJ-11-W-5139 which was attached with trolley No. GJ-11-M-637.
5.3 Undoubtedly in the present case, on perusal of the claim Petition, Exh. 1, the FIR Exh. 35, the Cross Examination of Kaliben Exh. 27 clearly proves that the deceased was seating on the fender/mudguard of the Page 5 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025 NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined tractor. However, it is also required to be noted that the factum of trolley being attached to the tractor and insurance under the Workmen Compensation Act for five labourers is not denied which is evident from Exh. 41. Under such circumstances, the question which requires to be decided as to whether the Insurance Company is liable to pay the compensation to the legal heirs of the deceased and as to whether the deceased Mohanbhai was traveling as a gratuitous passenger on the fender of the tractor or was a labourer attached with the tractor and trolley?
5.4 At the outset, it is required to be noted the judgment of the Hon'ble Supreme Court in the case of United India Insurance Company Limited Vs. Shilla Dutta and others reported in (2011) 10 SCC 509, a three judges Bench of Hon'ble Supreme Court culled out certain underlying principles and proposition for deciding claim petitions under the Act. Some of them as relevant to the facts of the present case are:-
1. The rules of the pleadings in principle do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo moto initiated by the Tribunal.
2.That though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in adversarial litigation.
3. The Tribunal is required to follow such Page 6 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025 NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of the matters relevant to inquiry, to assist it in holding the enquiry.
4. The Tribunal while passing the award makes a statutory determination of compensation on the occurrence of an accident after due enquiry in a accordance to the statute.
In view of the afore stated principles, if the statement of Vinubhai Bhurabhai at Exh. 36, Keshavbhai at Exh. 37, Ambalal Punjabhai at Exh. 38, Kanchanbhai at Exh. 39 and Rameshbhiai at Exh. 40 are perused it would be amply clear that the deceased was a labourer working with these witness on the fateful day and was traveling by seating on the fender/mudguard of the Tractor.
5.5 It is also required to be noted that in case of Shivraj (Supra) relied upon by the Ld. Advocate for the Respondent herein, wherein, it is held that the appellant therein travelled in the tractor which was insured only for agriculture purpose and not for carrying goods and travelled in the tractor in breach of policy terms and conditions and therefore Insurance Company cannot be made liable to compensate the owner or the claimant. However, directed the Insurance Company to pay the claimants and Insurance Company was permitted to recover from the tractor owner.
It is also required to be noted that the Hon'ble Supreme Court in the Case of Shammanna and Page 7 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025 NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined Another Vs. The Divisional Manager, the Oriental Insurance Co. Ltd. And Ors. and others reported in AIR 2018 SUPREME COURT 3726 has held in para 11 and 12 as under"
"11. In the present case, to deny the benefit of 'pay and recover', what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that "if the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle".
The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case.
12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed Page 8 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025 NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored."
5.6 In view of the aforesaid principles, the order of pay and recovery can certainly passed by this Court.
5.7 It is also required to be noted that though the claim petition at Exh. 1 does not speaks clearly as regard to the deceased working as a labourer with the tractor trolley , however as stated by the Hon'ble Suprme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation reported in (2009) 13 SCC 530, claim petitions are required to be decided by the Tribunal on the touch stone of preponderance of probability and not on the basis of beyond reasonable doubt. However, as stated hereinabove, the statement before the police which were placed on record if are perused, it clearly transpires that he was working as a Page 9 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025 NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined labourer with other persons and those statements are exhibited. The judgment referred by the Ld. Advocate for the insurance Company in First Appeal No. 103/2002, where, the insurance Company was exonerated from the liability of payment to the claimants and the recovery was permitted from the owner of the driver of the offending vehicle and in First Appeal No. 136/2018 dated 30.09.2024 it is held that risk not covered by the Insurance policy which are also not in the nature of risks that are required to be statutorily recovered, no power has been conferred on the High Court or the Claims Tribunal to direct the insurer to pay the compensation to the claimants and then recover such amount from the owner/insured. Thus, it was held that gratuitous passengers traveling in a goods vehicle or other vehicle are concerned, the insurance company is not liable to indemnify the insurer the same not being the liability covered either by the statute or under the insurance contract and thus exonerated the insurance company and no order of pay and recover was passed. However, both these appeals on facts are totally factually different from the case on hand .
In the case of F.A. No. 103 of 2002 the deceased was traveling in a tractor as a companion sitting on the fender and was going for repairing of the tractor, under such circumstances the Insurance Company was exonerated and no order of pay and recover was passed. Whereas in F.A. No. 136 of 2018 wherein the claimants had plied the offending truck while they were on their way returning back to their respective homes. In that Page 10 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025 NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined transition, merely because the deceased were carrying the objects along with them, it was held that at the most part took the character of the luggage or their personal belongings and cannot be considered as a case of plying the goods vehicle truck for transport of the goods carried by them and were treated as unauthorized passengers in the goods vehicle.
In the case on hand though the deceased was traveling on the tractor by sitting on the fender/mudguard however the factum of Insurance premium was paid under W.C Act for 5 labourers for the trailor attached with the tractor and the deceased working as a labourer is proved. It is however, undisputed fact in the present case that the deceased was sitting on the fender/mudguard. In the case of Shivraj (Supra) it was found that the claimant of that case traveled in the tractor and no additional insurance was taken in respect of the trailer and the presence of trailer was not shown or demonstrated in any of the documents and there was no evidence to demonstrate that the tractor was attached to a trailer still Hon'ble Supreme Court held in paragraph 10 as follows:
"10.At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors., Mangla Ram Vs. Page 11 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025 NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined Oriental Insurance Co. Ltd., Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, Bhim therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1)."
Hence, the cited cases by Ld. Advocate for the Insurance Company is not applicable to the facts of the present case and cannot come to the rescue of the appellant.
5.8 Ld. Advocate for the Insurance Company has lastly relied on the case of National Insurance Company Ltd. vs Mohanjit Kaur And Ors. Reported in 2005 ACJ 654, wherein it is held that facts not specifically pleaded cannot be proved and no evidence can be taken into consideration on facts, which have not been pleaded. However, it is required to be noted that in the said case, the Insurance Company contended that insured vehicle was not involved in the accident and the claimants have played fraud and such issued was not raised before the Tribunal in the written statement and under such circumstances, the plea of fraud for the First Appeal before the High Court came to be rejected.
In the present case, the claimants have not raised the ground of deceased being labourer for the first Page 12 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025 NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined time before this Court in the present Appeal but the Petition before the Tribunal is loosely drafted. However, when various exhibited statement of the witness are taken into consideration as referred in herein above, it becomes amply clear that the deceased was working as a labourer and was traveling on the fateful day on the tractor attached with the trolley. In this regards it would be profitable to refer to the Judgment in the case of Manjusri Raha & Ors Etc vs B.L. Gupta & Ors. reported in 1977 AIR 1158 wherein the Apex Court in a case of compensation under the Motor Vehicles Act has held thus:
"......Although the plaint is loosely drafted but it clearly contains the relief of compensation against Gupta and Ram Swarup, the driver. Pleadings have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of poor people."
Hence, the cited case is of no help to the insurance Company and the factum of deceased working as a labourer with the trolley attached to the tractor is proved though not specifically pleaded in the claim petition or any averment to that effect in the affidavit of the claimants. Thus, when unambiguous facts are on record this Court cannot take hyper technical view to oust the claim of the respondents - original claimants.
5.9 In view of the aforesaid facts, the Appeal is partly Page 13 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025 NEUTRAL CITATION C/FA/3506/2012 JUDGMENT DATED: 01/08/2025 undefined allowed to the extent that the Insurance company is at liberty to recover the amount from the owner and the driver of the vehicle as held in the decision in the case of Oriental Insurance Co. Ltd vs Shri Nanjappan And Ors reported in (2004) 13 SCC 224, wherein, the Hon'ble Supreme Court held that :
"....that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."
5.10 In view of the above, the appeal is partly allowed to the aforesaid extent. The Claims Tribunal to disburse the amount of compensation deposited before the Tribunal to the original claimants along with accrued interest after due verification and the Insurance company is at liberty to recover the same for the owner of the offending tractor in accordance with law. Interim relief stands vacated. R & P to be sent to the concerned Tribunal forthwith. No order as to costs.
(P. M. RAVAL, J) MMP Page 14 of 14 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 22:26:13 IST 2025