Gujarat High Court
United India Insurance Company Limited vs Samirsha Rahusha Janeja(Deleted) & 3 on 22 September, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2130/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2130 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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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 LIMITED.....Appellant(s)
Versus
SAMIRSHA RAHUSHA JANEJA(DELETED) & 3....Defendant(s)
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Appearance:
MR RATHIN P RAVAL, ADVOCATE for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 4
SERVED BY RPAD (N) for the Defendant(s) No. 2 3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/09/2017
ORAL JUDGMENT
1. Being aggrieved and dissatisfied by the judgment and award dated 30.09.2016 passed in MACP No.41/11 by Motor Accident Claims Tribunal (Main) Banaskantha at Palanpur, the present appeal is filed under section Page 1 of 7 HC-NIC Page 1 of 7 Created On Mon Oct 02 03:40:31 IST 2017 C/FA/2130/2017 JUDGMENT 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act".
2. The following facts reveal from the record of the appeal 2.1 That on 16.12.2010, deceased Hakimsha Samirsha Juneja was driving jeep bearing registration No. GJ8V1095. The record also indicates that one Mafabhai was also travelling with him in the said jeep and both were returning from Tharad. The accident took place near village Mesara when suddenly a blue bull (Nil Gai) came on the road and the deceased who was driving the jeep had to apply sudden brake because of which, he lost the control and dashed with the tree on the road side and succumbed to the injuries on the spot.
2.2 The respondents claimants filed a petition under section 163A of the Act and claimed compensation of Rs.4,89,500/. On notice being issued, the insurance company appeared and filed its written statement at Exhibit 24. The respondents claimants examined one of the claimant at Exhibit 15 and also relied upon documentary evidence being Certified copy of complaint at Exhibit 16, Certified copy of panchnama at Exhibit 17, Certified copy of Inquest at Exhibit 20, Certified copy of PM Note at Exhibit 21, Copy of driving license at Exhibit 19 and Copy of RC Book at Exhibit 18. The Tribunal considering the FIR and panchnama, came to the conclusion that the accident had occurred and assessed the income of the deceased at Rs.36,000/ per year and Page 2 of 7 HC-NIC Page 2 of 7 Created On Mon Oct 02 03:40:31 IST 2017 C/FA/2130/2017 JUDGMENT considering the age of the deceased as 28 years, awarded Rs.4,17,500/ along with 9% interest. Being aggrieved by the said award, the present appeal is filed.
3. The record indicates that respondent no.1 Samirsha Rahusha Juneja expired and he came to be deleted from the array of this appeal vide order dated 31.07.2017 as the other heirs are already on record. The record further indicates that though served, none of the respondents have appeared. Thus, notice for final disposal was issued by this Court vide order dated 22.06.2017. The record also indicates that initially there was delay of 55 days in preferring this appeal for which the appellant had preferred an application for condonation of delay being CA No.3775/17. In the said application also, no one appeared for the claimants. The record also shows that the claimants have been served. Still however, no one appears. Record and Proceedings were called for. In light of the aforesaid facts, this Court had no option but to hear the learned counsel appearing for the appellant. Perused the Record & Proceedings.
4. The learned counsel for the appellant has raised the following contentions
1) It was contended by the learned counsel for the appellant that the Tribunal ought to have appreciated that the deceased himself was the owner, driver and tortfeaser of the vehicle and therefore, he cannot file a claim petition Page 3 of 7 HC-NIC Page 3 of 7 Created On Mon Oct 02 03:40:31 IST 2017 C/FA/2130/2017 JUDGMENT against his own insurance company.
2) It was contended that the learned Tribunal has framed issue at Exhibit 10 wherein the issue no.1 is held in affirmative that the claimants prove that the deceased died because of rash and negligent driving of the driver of the vehicle. However, in the case on hand, the deceased himself was the driver.
3) It was contended by the learned counsel for the appellant that the advocate for the Insurance Company before the Tribunal had argued that the opponent as an insurer of the jeep cannot be held liable for this claim as the deceased himself was a tortfeaser and he cannot claim against his own insurance company as provided under the Act. The learned advocate for the insurance had also cited the judgment of New India Vs.Prabha Devi reported in 2013 ACJ 1382 before the learned Tribunal, which covers the present legal issue. However, no finding is given against this argument.
4) It was further contended by the learned counsel for the appellant that the issue involved in this appeal is squarely covered by the decision of this Court in the case of Iffco Tokia General Insurance Co. Ltd. vs. Deepakbhai Bhikhabhai Patel reported in (2017) 2 GLR 1100.
5. Upon reappreciation of the evidence on record and on perusal of the impugned judgment and award and Page 4 of 7 HC-NIC Page 4 of 7 Created On Mon Oct 02 03:40:31 IST 2017 C/FA/2130/2017 JUDGMENT also as is found in the claim petition itself that the deceased was himself driving the jeep therefore, the deceased himself was the owner and the driver and the tortfeaser. However, considering the deposition of the claimant at Exhibit 15, it is stated by the witness that the jeep was driven by the deceased. In crossexamination, he has admitted the fact that the jeep was of the ownership of the deceased. He has also admitted that at the time of accident, the jeep was driven by the deceased. Similarly, considering the RC Book at Exhibit 18, the same shows that the original ownership of the jeep was transferred in favour of deceased Hakimsha Samirsha Juneja on 23.08.2010. The aforesaid evidence therefore clearly establishes the fact that the deceased himself was the owner of the vehicle and also the driver of the vehicle when the incident took place. This Court in the case of Iffco Tokia General Insurance Co. Ltd. (supra) in similar set of circumstances, after considering the catena of judgments of Hon'ble Apex Court as well as this Court, has observed thus "8. Taking into consideration the rival submissions made by learned advocates for both the sides, ratio laid down in the above referred decisions by the Honourable Apex Court in light of the peculiar facts and circumstances of the case, indisputably, the claimant himself stands as registered owner and he himself was driving the offending vehicle as well as he himself has preferred the claim petition against his own insurance company claiming compensation for injuries sustained by him and resultant damages suffered by him. Indisputably, the claimant Page 5 of 7 HC-NIC Page 5 of 7 Created On Mon Oct 02 03:40:31 IST 2017 C/FA/2130/2017 JUDGMENT is not the third party. He is insured and the respondent insurance company is the insurer. Chapter XI of the Act makes the provision for insurance of the motor vehicle against the third party risk and the statute has made it compulsory for securing the risk of the third party and in the case on hand, if the injury or damage is suffered by the third party, then the third party can claim and maintain the claim petition before the Motor Accident Claims Tribunal constituted under the said Chapter.
9. In view of the ratio laid down by the Honourable Apex Court in the above referred decisions, the claim petition preferred by the present respondent original claimant is not maintainable under the provisions of the Act and learned Tribunal has committed manifest error in entertaining the claim petition and making the award, as such."
6. Even considering the panchnama and the manner in which the accident has taken place, even the Tribunal has come to the conclusion that the accident occurred because of the negligence on the part of driver. However, the Tribunal has not considered the aspect that the driver of the jeep was the owner himself and therefore, the person who is driver and owner of the vehicle and who is also the tortfeaser, cannot maintain a claim petition against his own insurance company. Mr. Raval is right in contending that even though the said argument was rased and recorded, the Tribunal has not considered the same and has come to erroneous conclusion that the respondents claimants are entitled to the compensation as awarded. The Tribunal has also miserably failed in considering such legal issues which were Page 6 of 7 HC-NIC Page 6 of 7 Created On Mon Oct 02 03:40:31 IST 2017 C/FA/2130/2017 JUDGMENT raised by the insurance company, which goes to the root of the maintainability of the claim petition.
7. In light of the aforesaid therefore, the claim petition filed by the claimants itself was not maintainable and therefore, the appeal is allowed. The impugned judgment and award is hereby quashed and set aside. The amount deposited, if any, by the insurance company before the Tribunal shall be refunded to the insurance company forthwith along with accrued interest.
(R.M.CHHAYA, J.) bjoy Page 7 of 7 HC-NIC Page 7 of 7 Created On Mon Oct 02 03:40:31 IST 2017