Gujarat High Court
United India Insurance Company Ltd vs Maheshkumar Babulal Shah on 29 March, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/4550/2009 JUDGMENT DATED: 29/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4550 of 2009
With
R/FIRST APPEAL NO. 2188 of 2010
With
R/FIRST APPEAL NO. 2189 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 or any order made thereunder ?
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UNITED INDIA INSURANCE COMPANY LTD
Versus
MAHESHKUMAR BABULAL SHAH & 7 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 6
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 4,7,8
MR TEJAS M BAROT(2964) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
UNSERVED EXPIRED (N) for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
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C/FA/4550/2009 JUDGMENT DATED: 29/03/2022
Date : 29/03/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 15.06.2009 passed by the Motor Accident Claims Tribunal (Aux.), Second Fast Track Court, Kheda at Nadiad (hereinafter referred to as "the Tribunal) in M.A.C.P. No.258 of 1993 and M.A.C.P. No.18 of 1993, which came to be disposed of by common judgment and award of even date, the appellant - United India Insurance Company Limited of the truck bearing registration No.GRY-5335 has preferred First Appeal No.4550 of 2009, whereas, the appellant - National Insurance Company Limited of the tempo bearing registration No.GJ-07-T- 9848 has preferred First Appeal No.2188 of 2010 and First Appeal No.2189 of 2010.
2. The same set of facts was adduced before the Tribunal and the Tribunal has heard the claim petitions together and so also, the present appeals are heard together and disposed of by this common judgment and order.
3. Following facts emerge from the record of the appeals. Page 2 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022
C/FA/4550/2009 JUDGMENT DATED: 29/03/2022 3.1 That on 11.10.1992, Ashwinbhai Manibhai Patel and one Babulal Shah were carrying chemical can and the test kits of the chemical and while they were reached on Dakor - Thasara road, near Samaliya Patia, the driver - Jagdishbhai Prajapati of the tempo bearing registration No.GJ-07-T-9848 has lost the control over the vehicle dashed with the stationary vehicle as a result of which Shaileshkumar Manilal Patel and one Jagdishbhai Shah, who were travelling with the goods and because of the accident, Shaileshkumar Patel and one Jagdishbhai Shah sustained the injuries and succumbed to the injuries in the said vehicular accident. The First Information Report was lodged with jurisdictional police station at Exhibit 65 and the legal heirs of the deceased Shaileshbhai Patel have preferred M.A.C.P. No.258 of 1993 and the legal heirs of deceased Jagdishbhai Shah have preferred M.A.C.P. No.18 of 1993. The wife of Ashwinbhai was examined at Exhibit 56 and one Jagdishbhai Natvarlal Shah was also examined at Exhibit 61. The original claimants also relied upon the documentary evidence, such as FIR at Exhibit 65, panchnama of the scene of occurrence at Exhibit 66 and the postmortem Note at Exhibit 67.
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4. The Tribunal, after appreciating the evidence on record, partly allowed M.A.C.P. No.258 of 1993 and awarded a sum of Rs.22,15,000/- to the legal heirs of deceased Shaileshkumar, whereas, the Tribunal partly allowed M.A.C.P. No.18 of 1993 and awarded a sum of Rs.2,38,128/- to the legal heirs of Jagdishbhai Natvarlal Shah. Being aggrieved and dissatisfied with the same, the First Appeal No.4550 of 2009 has been filed by the appellant
- United India Insurance Co. Ltd. mainly on the ground of negligence and quantum, whereas, First Appeal Nos.2188 of 2010 and 2189 of 2010 has been filed by the appellant - National Insurance Company Limited mainly on the ground of negligence and liability.
5. Heard Mr.Vibhuti Nanavati, learned counsel appearing for the appellant in First Appeal No.4550 of 2009, Ms.Lilu Bhaya, learned counsel appearing for the appellant in First Appeal Nos.2188 of 2010 and 2189 of 2010 and Mr.Mohasin Hakim, learned counsel appearing for the original claimants in all the appeals.
6. Mr.Vibhuti Nanavati, learned counsel appearing for the Page 4 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022 C/FA/4550/2009 JUDGMENT DATED: 29/03/2022 appellant in First Appeal No.4550 of 2009 contended that the Tribunal has committed an error while determining the income of the deceased. He further contended that the Tribunal has not properly considered the point of negligence and liability of the appellant - Insurance Company. He also contended that the Tribunal has also committed an error by awarding the interest at the rate of 9% from 16.12.1993 to 31.12.2002 and, thereafter, from 01.01.2003 till payment at the rate of 7.5%. He contended that the Tribunal has committed an error in applying multiplier of 15 as the claimants have not suffered any loss of income. He further contended that the appeal deserves to be allowed and the impugned judgment and award deserves to be quashed and set aside.
7. Ms.Lilu Bhaya, learned counsel appearing for the appellant in First Appeal Nos.2188 of 2010 and 2189 of 2010 contended that the deceased were travelling in the goods vehicle and, therefore, the Insurance Company is not liable to indemnify the risk of the deceased in the case of accident. She further contended that the Tribunal has not properly considered the fact that the Insurance Company has not covered the risk of the passengers who travelling in the goods carriage vehicle and, Page 5 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022 C/FA/4550/2009 JUDGMENT DATED: 29/03/2022 therefore, the Insurance Company is not liable to indemnify the risk of the deceased travelling in the goods carriage. She also contended that the driver of the vehicle did not possess driving license with requisite endorsement to drive the tempo carrying hazardous nature of goods which was being carried at the time of accident. She further contended that the wife of deceased, after the date of accident, remarried to the brother of the deceased and, therefore also, she is not entitled to get any compensation. It is her contention that the Tribunal has not properly determined the income of the deceased and the compensation awarded by the Tribunal which is under challenge is on higher side. She lastly contended that the appeals deserve to be allowed and the impugned judgment and award deserves to be quashed and set aside. Ms.Bhaya, learned counsel has referred to and relied upon the judgment dated 29.12.2021 rendered by this Court in First Appeal No.913 of 2011.
8. As against this, Mr.Mohsin Hakim, learned counsel appearing for the original claimants in all the appeals has supported the impugned judgment and award rendered by the Tribunal. He contended that the Tribunal has awarded just and adequate compensation. He contended that the appeals being Page 6 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022 C/FA/4550/2009 JUDGMENT DATED: 29/03/2022 meritless deserves to be dismissed.
9. No other or further submissions, grounds or contentions have been raised by learned counsel appearing for the respective parties.
11. We have gone through the record and proceedings extensively and we have taken into consideration the contentions raised on behalf of learned counsel appearing on behalf of the respective parties and perused the FIR at Exhibit 65 and panchnama of the scene of occurrence at Exhibit 66. Considering the fact that it is a case of composite negligent. So far as the claimants are concerned, they are entitled to recover the amount of compensation from any of the tortfeasor and, therefore, the contention raised by the appellant in First Appeal No.4550 of 2009 is no more res integra in view of the decision of the Hon'ble Supreme Court in the case of Khenyei Vs. New India Assurance Company Limited, reported in (2015) 9 Scc
273. In the case of Khenyei (supra), the Hon'ble Supreme Court has observed in paragraphs no.21 and 22 as under:
"21. The same analogy can be applied to the instant cases as the liability of the joint tortfeasor is joint and several. In Page 7 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022 C/FA/4550/2009 JUDGMENT DATED: 29/03/2022 the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailer-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to the claimant to recover from the owner of the trailer-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tortfeasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
22. What emerges from the aforesaid discussion is as follows:
22.1 In the case of composite negligence, the plaintiff / claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.
22.2 In the case of composite negligence, apportionment of compensation between two tortfeasors vis-avis the plaintiff / claimant is not permissible. He can recover at his option whole damages from any of them.
22.3 In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the Court / Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint torfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff / claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment / extent of their negligence has been determined by the Court / Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings.
22.4 It would not be appropriate for the court / Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.Page 8 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022
C/FA/4550/2009 JUDGMENT DATED: 29/03/2022
12. So far as the quantum is concerned, the appellant - Insurance Company of First Appeal No.4550 of 2009 succeeds to the following extent.
Actual income Rs. 60,341/-
(Rs.48,000 + Rs.12,341 profit)
Future rise (Rs.60,341 x 40% rise) Rs. 24,136/-
Rs. 84,447/-
Less: Personal expenses (84,447 x 1/4) Rs. 21,119/-
Dependency benefit Rs. 63,358/-
Loss of dependency benefit (Rs.63,358 x 16) Rs.10,13,728/-
Loss of estate Rs. 1,20,000/-
Funeral expenses Rs. 15,000/-
Total amount of compensation Rs.11,63,728/-
Accordingly, the appellant - Insurance Company in First Appeal No.4550 of 2009 is entitled to recover the amount of Rs.10,51,272/- (Rs.22,15,000 - Rs.11,63,728).
13. So far as the contention raised by the appellant - Insurance Company in First Appeals No.2188 of 2010 and 2189 of 2010 is concerned, the deceased were travelling in the goods carriage and even the date of accident is 11.10.1992 i.e. prior to the date of amendment of Section 147 of the Motor Vehicles Act. The issue involved in the aforesaid two appeals is squarely covered Page 9 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022 C/FA/4550/2009 JUDGMENT DATED: 29/03/2022 by the ratio laid down by the Hon'ble Supreme Court in the case of New India Assurance Company Limited Vs. Asha Rani and others, reported in (2003) 2 SCC 223. That the liability under Section 147 of the Motor Vehicles Act does not extend to cases of death of or bodily injury to the owner of goods or his authorised representative carried in a goods vehicle.
14. In the case of Asha Rani (supra), the Hon'ble Supreme Court has observed in paragraphs no.14, 15, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29 as under:-
"14. Before adverting to the pointed issue, we may notice the definitions of "goods vehicles", "public service vehicle"
and "stage carriage" and "transport vehicle" occurring in Sections 2(8), 2(25), 2(29) and 2(33) of 1939 Act, which are as under :-
"2(8) "goods vehicle" means any motor vehicle constructed or adopted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers;"
"(25) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage, and stage carriage;"
"(29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey;"
(33) "transport vehicle" means a public service vehicle or a goods vehicle;"
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C/FA/4550/2009 JUDGMENT DATED: 29/03/2022 (emphasis supplied)
15. Sections 2(14), 2(35), 2(40) and 2(47) of 1988 Act define "goods carriage", "public service vehicle", "stage carriage" and "transport vehicle" in the following terms :-
"2(14) "good carriage" any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;"
"2(35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi cab, a motor cab, contract carriage, and stage carriage;"
"2(40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey;"
"2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;"
(emphasis supplied)
18. Liability has been defined in Section 145(c) as under -
"'liability', wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under Section 140;
19. Section 146 specifies the necessity for insurance against third party risk. In terms thereof an owner of a motor vehicle is statutorily enjoined to have a policy of insurance complying with the requirements of the said chapter before he uses or causes or allows any other person to use a motor vehicle in public.
20. Section 147 deals with requirements of policies and limits of liability. Proviso appended thereto, however, makes an exception to the main provision which reads thus :-
"Provided that a policy shall not be required -
(i) to cover liability in respect of the death, arising out of an in the course of his employment, of the employee of a Page 11 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022 C/FA/4550/2009 JUDGMENT DATED: 29/03/2022 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 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."
21. xxx xxx xxx
22. Thus, it may be noticed that so far as employees of the owner of the motor vehicle are concerned, an insurance policy was not required to be taken in relation to their liability other than arising in terms of the provisions of the Workmen's Compensation Act, 1923. On the other hand, proviso (ii) appended to Section 95 of 1939 Act, enjoined a statutory liability upon the owner of the vehicle to take out an insurance policy to cover the liability in respect of a person who was travelling in a vehicle pursuant to a contract of employment. The Legislature has consciously not inserted the said provision in 1988 Act.
23. The applicability of decision of this Court in Mallawwa v. Oriental Insurance Company Ltd & Ors. (1999) 1 SCC 403 in this case must be considered keeping that aspect in view. Section 2(35) of 1988 Act does not include passengers in goods carriage whereas Section 2(25) of 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of the "goods vehicle" in 1939 Act and "goods carriage" in 1988 Act is significant. By reason of the change in the definitions of the terminology, the Legislature intended that a goods vehicle could not carry any passenger, as the words "in addition to passengers" occurring in the definition of goods vehicle in 1939 Act were omitted. Furthermore, it categorically states that 'goods carriage' would mean a motor vehicle constructed or adapted for use "solely for the carriage of goods". Carrying of passengers in a 'goods carriage', thus, is not contemplated under 1988 Act.
24. We have further noticed that Section 147 of 1988 Act prescribing the requirements of an insurance policy does Page 12 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022 C/FA/4550/2009 JUDGMENT DATED: 29/03/2022 not contain a provision similar to clause (ii) of the proviso appended to Section 95 of 1939 Act. The decisions of this Court in Mallawwa's case (supra) must be held to have been rendered having regard to the aforementioned provisions.
25. Section 147 of 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage'.
26. In view of the changes in the relevant provisions in 1988 Act vis-a-vis 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 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 therefor.
27. Furthermore, sub-clauses (i) of clause (b) of sub- section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
28. An owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. But if the ratio of this Court's decision in New India Assurance Company v. Satpal Singh & Ors. (2000) 1 SCC 237 is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy wherefor even no premium is required to be paid. Page 13 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022 C/FA/4550/2009 JUDGMENT DATED: 29/03/2022
29. We may consider the matter from another angle. Section 149(2) of the 1988 Act enables the insurers to raise defences against the claim of the claimants. In terms of clause (c) of sub-section (2) of Section 149 of the Act one of the defences which is available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. Such a statutory defence available to the insurer would be obliterated in view of the decision of this Court in Satpal Singh case.
15. Thus, we are in total agreement with the contention raised by the appellant - Insurance Company in First Appeal No.2188 of 2010 and First Appeal No.2189 of 2010. Considering the ratio laid down by the Hon'ble Supreme Court in the case of Asha Rani (supra), the appellant - Insurance Company deserves to be exonerated from its liability and the appeals deserve to be allowed.
16. For the foregoing reason, we pass the following order. (1) First Appeal No.4550 of 2009 is allowed in part. So far as the quantum is concerned, the impugned judgment and award passed by the Tribunal is modified by awarding compensation of Rs.11,63,728/- and the appellant - Insurance Company is entitled to refund / recover a sum of Rs.10,51,272/- with interest at the rate of 6% from the claimants of M.A.C.P. No.258 of 1993. Page 14 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022
C/FA/4550/2009 JUDGMENT DATED: 29/03/2022 (2) First Appeal No.2188 of 2010 and First Appeal No.2189 of 2010 are allowed. The appellant - Insurance Company is hereby exonerated from its liability and if any amount is deposited, either before the Tribunal and/or the Registry by the appellant - Insurance Company of First Appeal No.2188 of 2010 and First Appeal No.2189 of 2010, the same shall be refunded back to the appellant - Insurance Company with proportionate costs and interest forthwith. But, the claimants are at liberty to recover entire compensation amount from Insurance Company i.e. United India Insurance Company Limited. Registry is directed to transmit back the record and proceedings of the case to the concerned Tribunal forthwith. There shall be no order as to costs. Pending civil application/s, if any, shall stand disposed of.
(R.M.CHHAYA,J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 15 of 15 Downloaded on : Sat Dec 24 13:49:42 IST 2022