Gujarat High Court
Heirs Of Hemabhai Vajaji Solanki vs Jawanji Malaji Solanki & 2 on 10 August, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/FA/3309/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3309 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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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HEIRS OF HEMABHAI VAJAJI SOLANKI, LALABHAI HEMABHAI
SOLANKI....Appellant(s)
Versus
JAWANJI MALAJI SOLANKI & 2....Defendant(s)
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Appearance:
MR PARESH M DARJI, ADVOCATE for the Appellant(s) No. 1
MR VC THOMAS, ADVOCATE for the Defendant(s) No. 2
**MS AMI N BHATT, ADVOCATE for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1 , 3
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 10/08/2017
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C/FA/3309/2011 JUDGMENT
ORAL JUDGMENT
1. This First Appeal is filed by the appellants under Section 173 of the Motor Vehicle Act praying to quash and set aside the judgment and order dated 13.10.2010 passed by the learned Motor Accident Claim Tribunal (Main), Kheda at Nadiad in Motor Accident Claim Petition No.1929 of 2009.
2. It is the case of the appellant that the accident took place on 17.10.2009, at about 1:15 in the noon, in the sim of Village Bhatpura, on Ahmedabad Kathlal road, for which the offe4nce came to be registered CR No.I114 of 2009 in the Kanbha Police Station. The petition further discloses the fact that on the very unfortunate day, coupled with the deceased, his other relatives had gone in the vehicle Commander Mahendra Keep bearing No.GJ8A8482 to attend the after death ceremony, they were returning Page 2 of 8 HC-NIC Page 2 of 8 Created On Mon Aug 21 16:56:20 IST 2017 C/FA/3309/2011 JUDGMENT in the said vehicle driven by the opponent No.1, owned by opponent No.2 and insured with the opponent No.3. The said vehicle was driven in rash and negligent manner; the deceased set at the backside seat, when it reached to the place of incident, at the relevant time the opponent No.1 took a turn by side, the branch of Babul tree came into body contact of the deceased and thereby died on 23.10.2009 during the treatment. The deceased was engaged in V.H.Patel building materials 7 supplies and earning Rs.3,000/ per month. The mother of the claimant took divorce from the deceased in the year 1989, therefore only claimant is the legal heir, so he is entitled to receive the whole amount of compensation. Thus, considering the age, income and earning capacity of the deceased the claimant has requested to award Rs.3,16,500/ from the opponents, those who are jointly and severally liable.
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3. Heard Mr.Paresh M. Darji, learned advocate for the appellant and Mr.V.C.Thomas, learned advocate for the respondent No.2.
4. Mr.Paresh M. Darji, learned advocate for the appellant has submitted that the judgment and award passed by the Tribunal is improper, unjust and against the provisions of law. He has submitted that the learned Tribunal has committed grave error in not following the provisions of Section 163A of the Act and passed the award exonerating the Insurance Company from making the payment of the compensation and to pay limited compensation.
5. He has submitted that the learned Tribunal has committed grave error in not appreciating the evidence on record which are sufficient to establish that accident took place and death happen. He has submitted that the claimant also filed examinationinchief and chance for crossexamination was accorded to other side. He has submitted that no Page 4 of 8 HC-NIC Page 4 of 8 Created On Mon Aug 21 16:56:20 IST 2017 C/FA/3309/2011 JUDGMENT negligence is required to plead and establish for getting the amount of compensation. He has submitted that learned Tribunal has committed grave error in coming to the wrong conclusion that Insurance Company has limited liability. He has submitted that no evidence has been lead by the Insurance Company to prove this content even though the learned Tribunal has passed the award on wrong premises. In view of his above submissions he has relied on the decision in the case of Shantaben wd/o (decd.) Kantibhai Punjabhai Vankar & Ors., vs. Yakubbhai Ibrahimbhai Patel & Ors., GLR Vol.53 2012(3) 1985, wherein Full Bench of this Court has held that, Insurance Company cannot press in service limit of statutory liability and avoid satisfying award so far as third party is concerned. The Insurance Company would be entitled to recover amount in excess of statutory liability. In absence of any other Page 5 of 8 HC-NIC Page 5 of 8 Created On Mon Aug 21 16:56:20 IST 2017 C/FA/3309/2011 JUDGMENT terms of agreement and additional premium being paid, insurance policy would not cover unlimited liability of Insurance Company. In para39 it is held that, "39. In view of the above pronouncement of the Apex Court, we have no hesitation in holding that in face of avoidanece clause contained in the insurance policy, the Insurance Company despite its limited liability must insofar as third party is concerned, satisfy the entire award of the Claims Tribunal. The Insurance Company, of course, would be entitled to recover the amount in excess of Rs.50,000/ which is the statutory limit of liability, from the owner of the vehicle insured which was involved in the accident."
He, therefore, submitted that the award requires to be quashed and set aside.
6. Mr.V.C.Thomas, learned advocate for the respondent No.2 has submitted that the judgment and award passed by the learned Motor Accident Claim Tribunal (Main), Kheda at Nadiad, is just and proper and do not Page 6 of 8 HC-NIC Page 6 of 8 Created On Mon Aug 21 16:56:20 IST 2017 C/FA/3309/2011 JUDGMENT require any interference.
7. I have heard learned advocates for the respective parties at length and in great details. I have perused the averments made in the memo of appeal. It transpires that the Insurance Company has taken additional premium and risk is covered. Even sitting capacity is also nine plus one and, therefore, the entire risk for passengers upto ten is covered, over and above this in view of the Larger Bench decision in the case of Shantaben wd/o (decd.) Kantibhai Punjabhai Vankar & Ors., vs. Yakubbhai Ibrahimbhai Patel & Ors., GLR Vol.53 2012(3) 1985. Therefore, the Insurance Company is liable to satisfy entire decreetal amount together with interest and cost. The Insurance Company is directed to deposit the entire decreetal amount before the learned Tribunal within a period of eight weeks. The Insurance Company is at liberty to recover the said amount from Page 7 of 8 HC-NIC Page 7 of 8 Created On Mon Aug 21 16:56:20 IST 2017 C/FA/3309/2011 JUDGMENT the insured/owner of the vehicle involved in the accident. Upon deposit of the amount the same shall be disbursed to the appellant on proper verification. Thus the award deserves to be modified to the aforesaid extent.
8. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) KKS Page 8 of 8 HC-NIC Page 8 of 8 Created On Mon Aug 21 16:56:20 IST 2017