Gujarat High Court
United India Insurance Co Ltd vs Senma Amratbhai Pashabhai on 1 July, 2024
NEUTRAL CITATION
C/FA/2878/2019 JUDGMENT DATED: 01/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2878 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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 CO LTD
Versus
SENMA AMRATBHAI PASHABHAI & ORS.
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR JM BAROT(143) for the Defendant(s) No. 1,2,3
NOTICE SERVED for the Defendant(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/07/2024
ORAL JUDGMENT
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1. This appeal is filed by the appellant-insurance company under Section 173 of the Motor Vehicles Act, 1988 (`MV Act' for short), being aggrieved and dissatisfied with the judgment and award dated 3.7.2018 passed by the Motor Accident Claims Tribunal (Aux.), Visnagar in MACP No.1630 of 2012, whereby the claim petition of the opponents- claimants was partly allowed and the appellant-insurance company was ordered to pay the amount of compensation, as ordered in the impugned award.
2. The brief facts leading to filing of this appeal are such that the claimants and the deceased were travelling in the pick-up van on 30.3.2012 at around 6.00 p.m. from Badapur to Dalisana with their wheat and old doors and at around 7.15 p.m., when they reached the seam of Arthi village, there was a dead dog lying on the road and the pick-up van immediately took the pick-up van from the side of the road and the driver lost control over the pick-up van and it capsized, in which the wife of the claimant no.1 and mother of claimants no.2 and 3 died. Therefore, the claim petition was filed by the claimants under Section 166 of the MV Act for Rs.3,94,000/- with interest.
3. On issuance of notice, the appellant-insurance company appeared and resisted the claim petition by filing Page 2 of 13 Downloaded on : Wed Jul 03 20:52:47 IST 2024 NEUTRAL CITATION C/FA/2878/2019 JUDGMENT DATED: 01/07/2024 undefined written statement at Exh.11 contending that it is not true that the accident has occurred due to the rash and negligent driving of the pick-up van driver and also that no evidence is led to show that the deceased was well-built and was earning Rs.3,000/- per month and, therefore requested to dismiss the claim petition.
4. Heard learned advocate Mr.Mazmudar for the appellant-insurance company and learned advocate Mr.Barot for opponent nos.1 to 3-original claimants. Though served, none appears for opponent nos.4 and 5-owner and driver of the pick-up van.
5. Learned advocate Mr.Mazmudar for the appellant has submitted that the deceased was occupant/passenger in the pick-up van and she was not the third party qua the vehicle and her risk was not covered and therefore the insurance company cannot be held liable to pay/reimburse the compensation; that the insured/owner has not paid any premium for occupants/passenger in the vehicle, so risk of occupants/passengers is not covered; that the involved vehicle was registered as a vehicle carrying commercial goods and having seating capacity of one person only i.e. the driver and admittedly the deceased was not a driver. He, therefore, submitted that the appellant-insurance company should have Page 3 of 13 Downloaded on : Wed Jul 03 20:52:47 IST 2024 NEUTRAL CITATION C/FA/2878/2019 JUDGMENT DATED: 01/07/2024 undefined been exonerated from the liability to pay the compensation to the claimants and at the most, the order of pay and recover should have been paid by the learned Tribunal, which is not done in this case and therefore, he prayed to allow this appeal. No other ground is raised in this appeal.
6. As against this, learned advocate Mr.Barot for the original claimants has submitted that the amount of compensation awarded by the learned Tribunal is just and proper and prayed to dismiss this appeal.
7. The opponents-owner and driver of the vehicle in question have not appeared to contest the appeal and to contest the contention raised by the appellant-insurance company that the insurance company is not liable for compensation and the insured/owner is liable to pay the compensation.
8. I have considered the submissions made by learned advocates for the parties and also perused the documents on record including the impugned judgment and award.
9. The oral and documentary evidence produced before the learned Tribunal i.e. the FIR, panchanama, deposition of the claimant, the panchanama of scene of Page 4 of 13 Downloaded on : Wed Jul 03 20:52:47 IST 2024 NEUTRAL CITATION C/FA/2878/2019 JUDGMENT DATED: 01/07/2024 undefined offence, driving licence of the driver of the vehicle, the inquest panchanama, P.M.note, go to show that the truck driver was negligent at the time of the accident due to which the accident occurred and the deceased lost her life. However, from the insurance policy and the documentary evidence produced on record, it is clear that the the vehicle in question was a goods vehicle and the deceased was unauthorized passenger in the same and therefore there is a breach of terms of policy.
10. A reference to the following decisions would be fruitful at this stage:
In the case of Shamanna v. Oriental Insurance Co. Ltd. , (2018) 9 SCC 650, it is held in paragraphs 12 to 14 as under:
"12. The above reference in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National Insurance Co. Ltd. v.
Parvathneni, (2018) 9 SCC 657] by the three-Judge Bench keeping the questions of law open to be decided in an appropriate case.
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13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] 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 [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] 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 [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] 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 [ Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] 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.
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14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224 : 2005 SCC (Cri) 148] wherein this Court held that :
(SCC p. 226, para 8) "8. ... 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 executing court concerned 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."
In the case of Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796, it is held in paragraphs 11 to 16 as under:
"11. In reply, the learned counsel for the respondents (insurance companies) supported the impugned order and contended that no case is made out to interfere in the impugned judgment. It was his submission that once it is held and rightly that the insurance company is not liable because the victims were travelling in the offending vehicle as "gratuitous passengers", there did not arise any occasion to pay the awarded sum to the claimants by the insurance company and nor the principle " pay and recover" could be Page 7 of 13 Downloaded on : Wed Jul 03 20:52:47 IST 2024 NEUTRAL CITATION C/FA/2878/2019 JUDGMENT DATED: 01/07/2024 undefined applied against the insurance company in such circumstances thereby making them liable to pay the awarded sum to the claimants.
12. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned counsel for the appellants (claimants).
13. The only question, which arises for consideration in these appeals, is whether the appellants are entitled for an order against the insurer of the offending vehicle i.e. (Respondent
3) to pay the awarded sum to the appellants and then to recover the said amount from the insured (owner of the offending vehicle Tata Sumo) Respondent 1 in the same proceedings.
14. The aforesaid question, in our opinion, remains no more res integra. As we notice, it was the subject-matter of several decisions of this Court rendered by three-Judge Bench and two-Judge Bench in the past viz. National Insurance Co. Ltd. v. Baljit Kaur [National Insurance Co.
Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] , National Insurance Co. Ltd. v. Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] , National Insurance Co. Ltd. v. Kaushalaya Devi [National Insurance Co. Ltd. v. Page 8 of 13 Downloaded on : Wed Jul 03 20:52:47 IST 2024
NEUTRAL CITATION C/FA/2878/2019 JUDGMENT DATED: 01/07/2024 undefined Kaushalaya Devi, (2008) 8 SCC 246 : (2008) 3 SCC (Cri) 467] , National Insurance Co. v. Roshan Lal [National Insurance Co. Ltd. v. Roshan Lal, (2017) 4 SCC 803] and National Insurance Co. Ltd. v. Parvathneni [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] .
15. This question also fell for consideration recently in National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 :
(2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment [ Saju P. Paul v.
National Insurance Co., 2011 SCC OnLine Ker 3791 : 2012 ACJ 1852] of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from Page 9 of 13 Downloaded on : Wed Jul 03 20:52:47 IST 2024 NEUTRAL CITATION C/FA/2878/2019 JUDGMENT DATED: 01/07/2024 undefined the insured in the same proceedings by applying the principle of "pay and recover".
16. R.M. Lodha, J. (as his Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under : (Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] , SCC pp. 52 & 55) "20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).
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26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get Page 10 of 13 Downloaded on : Wed Jul 03 20:52:47 IST 2024 NEUTRAL CITATION C/FA/2878/2019 JUDGMENT DATED: 01/07/2024 undefined compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 [National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41, 55 (footnote 14)] ] and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] ."
11. In the judgment in the case of Shivaraj V/s Rajendra and another reported in 2018 ACJ 2755, the Hon'ble Apex Court has held in paragraph 10 as under:
"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 Page 11 of 13 Downloaded on : Wed Jul 03 20:52:47 IST 2024 NEUTRAL CITATION C/FA/2878/2019 JUDGMENT DATED: 01/07/2024 undefined 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. V.Swaran Singh, 2004 ACJ 1(SC); Mangla Ram v.Oriental Insurance Co.ltd., 2018 ACJ 1300(SC); Rani v.National Insurance Co.ltd., 2018 ACJ 2430(SC) and Manuara Khatun v.Rajesh Kumar Singh, 2017 ACJ 1031 (SC). In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2, Appellant may, 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)."
12. As discussed hereinabove, the vehicle in question was a goods vehicle and the deceased was an unauthorized passenger in the vehicle in question, and therefore, the insurance company is not liable to pay the amount of compensation. However, as the manifest object of the provisions of the MV Act is to ensure that the party, who suffers injuries due to the use of the motor cycle, and may be able to get the damages for the injuries sustained/death. If the goods vehicle is used for carrying the passengers, against the terms of insurance policy, as is in the case on hand, the claimants cannot suffer for the technicalities of whether the owner/insurance company should pay the amount. As the vehicle is insured with the Page 12 of 13 Downloaded on : Wed Jul 03 20:52:47 IST 2024 NEUTRAL CITATION C/FA/2878/2019 JUDGMENT DATED: 01/07/2024 undefined insurance company, the insurance company shall first pay the compensation and it is for the insurance company to recover from the owner, if it so wishes.
13. In view of the above discussion, this appeal is partly allowed. The impugned judgment and award dated 23.8.2005 passed in M.A.C.P.No.52 of 2000 is modified to the extent that the insurance company shall first pay the compensation as awarded by the learned Tribunal in the impugned judgment to the claimants and it is for the insurance company to recover from the insured, if it so wishes.
14. The amount lying with the Tribunal and/or in the FDR, pursuant to the order of this Court if any, shall be disbursed to the claimant, along with accrued interest thereon if any, by account payee cheque, after proper verification and after following due procedure, within a period of six weeks from today.
15. Rest of the award remains as it is. Modified decree be drawn accordingly.
Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SRILATHA Page 13 of 13 Downloaded on : Wed Jul 03 20:52:47 IST 2024