Gujarat High Court
The New India Assurance Company Limited vs Kantaben Manojbhai Alias Manji ... on 13 February, 2025
NEUTRAL CITATION
C/FA/3223/2019 ORDER DATED: 13/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3223 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 3223 of 2019
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THE NEW INDIA ASSURANCE COMPANY LIMITED
Versus
KANTABEN MANOJBHAI ALIAS MANJI MAHESHWARI WD/O MANOJ
ALIAS MANOJ SHAMJI MAHESHWARI & ORS.
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Appearance:
MR NAGESH C SOOD(1928) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1,3
NOTICE SERVED for the Defendant(s) No. 2,4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company being aggrieved and dissatisfied with the judgment and award dated 31.08.2018 passed by the Motor Accident Claims Tribunal, Bhuj in Motor Accident Claim Petition No.704 of 2005.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 05.12.2005, deceased was riding scooter No.GJ-12-A-8909 and one Kishan Ramji was sitting as pillion rider and when they reached near the place of accident, one unidentified jeep came in rash and negligent manner and dashed with the scooter. As a result, the accident took place and deceased sustained severe Page 1 of 9 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 22:34:57 IST 2025 NEUTRAL CITATION C/FA/3223/2019 ORDER DATED: 13/02/2025 undefined injuries and succumbed to the injuries. The legal heirs of the deceased have filed aforestated claim petition under Section 163-A of the Motor Vehicle Act, 1988 claiming compensation of Rs.7,20,000/-. The learned Tribunal vide impugned judgment and award dated 31.08.2018 has granted compensation to the tune of Rs.4,84,700/-. Hence, the present appeal.
3. Challenging the impugned judgment and award passed in the claim petition filed under Section 163-A of the Motor Vehicle Act, 1988, whereby learned Tribunal granted compensation of Rs.4,84,700/- with 9% interest from the date of petition till realization, learned advocate Mr.Nagesh Sood for the Insurance Company would submit that Insurance Company cannot be held liable as deceased was son of the owner of the vehicle as he stepped into the shoes of the owner. He would further submit that claimants paid basic premium for personal accident of the owner which is limited to Rs.1,00,000/-. He would submit that in case of premium for personal accident is paid for the owner, learned Tribunal cannot grant compensation under Section 166 of the Motor Vehicle Act, 1988 to the owner as he is not third party. In support of his submission, he referred to the judgment of Hon'ble Supreme Court in case of Ramkhiladi vs. United India Insurance Company Limited - 2020 (2) SCC 550. In view of above submissions, he would submit to allow this appeal.
4. Per contra, learned advocate Mr.Shah appearing for the claimants has referred to the judgment of coordinate Bench of this Court in case of United India Insurance Company Limited Versus Kasubhai Desabhai Vala Legal Heirs Of Decd, 2022 (0) Page 2 of 9 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 22:34:57 IST 2025 NEUTRAL CITATION C/FA/3223/2019 ORDER DATED: 13/02/2025 undefined JX(Guj) 293 as well as judgment of this Court in case of Kaushalbhai Ashokbhai Patel (Minor) Thro' Guardian & Others. Versus Uttambhai Gelabhai Parmar and others, being First Appeal No.3177 of 2012, to submit that learned Tribunal has rightly passed the award in favour of the claimants. Merely because the deceased is son of the owner of the vehicle cannot be treated as owner of the vehicle or he cannot be said to have stepped into the shoes of the owner and cannot be denied the compensation on this aspect. Therefore, he submits to dismiss the appeal.
5. The fact which could be noticed from the record and proceedings is that claim petition was filed under Section 163-A of the Motor Vehicle Act, 1988 to get the compensation under structured formula. On the ill-fated day i.e. on 05.12.2005, deceased Manoj was riding scooter No.GJ-12-A-8909 and one Kishan Ramji was sitting as pillion rider and when they reached near the place of accident, one unidentified jeep came in rash and negligent manner and dashed with the scooter. As a result, the accident took place and deceased sustained severe injuries and succumbed to the injuries. For such factual aspect, the widow, minor son and mother preferred the claim petition against the owner and insurer of scooter. It is mainly argued that deceased was son of owner of scooter and he was stepping into shoes of the owner and therefore, claimants cannot be held entitled for compensation since deceased cannot be treated as third party. Such argument is in violation of definition of driver given in section 2(a) of the Motor Vehicle Act, 1988, which reads as under:
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6. Section 2(30) of the Motor Vehicle Act, 1988 defines the term owner as under :
"(30) "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;"
7. In view of above, the argument that deceased being son of the owner has stepped into the shoes of the owner cannot be accepted. In Kasubhai Desabhai Vala (supra), the coordinate Bench in identical fact denied to accept the contention has held as under :
"5. *** Therefore in my opinion, the Tribunal has not committed any error by keeping in mind the factual aspect of the matter and also keeping in mind the judgment of Fahim Ahmad (supra) as well as the judgment of Chandrakanta Tiwari (supra) and the judgement of this Court in the First Appeal No.1129 of 2013 whereby the Court has found that the Insurance Company should be held liable in the facts and circumstances of the case and where the premium is paid to the driver as well as owner of the vehicle. Mr. Hemal Shah has also relied on the judgment of this Court in the First Appeal No.14 of 2010 as well as in the First Appeal No.2932 of 2007 which are also helpful to the case of present respondents. The judgment of Ramkhiladi (supra) could not be applicable squarely in the facts of the present case as in the present case, the amount of the premium for the risk of the driver as well as the owner is paid and looking to the various Page 4 of 9 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 22:34:57 IST 2025 NEUTRAL CITATION C/FA/3223/2019 ORDER DATED: 13/02/2025 undefined judgments of the Hon'ble Apex Court on the aspects like matter under Section 163-A, the negligence is not required to be proved and when the Insurance Company has charged the premium for the risk of the driver and the owner of the vehicle, in my opinion the Tribunal has not committed any error in holding the present appellant - Insurance Company liable to pay the amount of compensation. Accordingly, I found that there is no merit in the submission made by the advocate for the appellant about the limited liability to the extent of personal accident in the present case. Therefore, I found that in view of the above discussion, the appeal of the Insurance Company is meritless. The Tribunal has given cogent and convincing evidence, therefore, there is no reason to interfere in the finding of the Tribunal."
8. In identical fact situation, this Court in case of Bajaj Allianz General Insurance Company Limited Vs. Batuksinh Fatehsinh Jadeja Since Decd. Thru Heirs and others, being First Appeal No.5362 of 2008, has held as under :
"9. It is apparent that premium of Rs.25/- has been charged towards the legal liability of the driver. The driver has been defined in the policy itself which reads thus:
"DRIVER: Any person including the insured Provided that a person driving holds an effective driving licence at the time of the accident and is hot disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner's licence may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989."
10. The definition which the appellant has itself given in the policy start with the word "any person including the insured". The use of the word "including" in the definition shows the nature as inclusive definition. It does not de-mark the nature and status of the driver. The driver may be real brother of the owner of the Page 5 of 9 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 22:34:57 IST 2025 NEUTRAL CITATION C/FA/3223/2019 ORDER DATED: 13/02/2025 undefined vehicle; but condition is that he should possess the effective driving licence on the date of road accident to fasten of the liability on the insurance company. The licence of the deceased was produced at Exh.43 which shows that he was possessing LMV licence upto the period 07/11/2006 whilst the accident took place on 15/06/2005. Thus, admittedly, on the date of road accident he was authorized to drive the LMV including the Maruti Car.
11. In Road Traffic Act, 1988, ap1 applicable in UK but the term "driver" has been defined as.
"driver", where a separate person acts as a steersman of a motor vehicle, includes (except for the purposes of section 1 of this Act) that person as well as any other person engaged in the driving of the vehicle, and "drive"
is to be interpreted accordingly,"
12. In Black's Law Dictionary, the term driver is defined as under:
"driver. A person who steers and propels a vehicle."
13. In Shorter Oxford English Dictionary, Deluxe edition, the term driver defines as under:
"driver A person who drives a vehicle."
14. Section 2(9) of the Motor Vehicles Act, 1988 provides the definition of driver as under:
"driver" includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle;"
15. Thus, from the above, it is clear that the person who act as steered man of the drawn vehicle or the person who propel the vehicle and sit on the steering as driver includes within the meaning of driver. Therefore, the submission of learned advocate for the appellant that deceased cannot be said to be driver has no legs to stand.
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16. Another submissions of learned advocate for the appellant that deceased being brother of the owner of the errant car stepped into the shoes of the owner; hence not entitled to claim compensation. In regard to this submission and for that purpose let refer to the definition of "owner" as prescribed in Section 2(30) of the MV Act.
"owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;"
17. On plain reading of the above provision, abundantly it would be clear that a person in whose name the vehicle stands registered is the person who can be said to be owner of the vehicle. Any other reading of the term "owner" and term "driver" would defeat purpose of the legislative intent. Merely, because the deceased was real brother of the owner of the maruti car and driving it at the relevant time could not be treated him as owner of the vehicle. The driver means the person who propels the vehicle and in the present case the deceased was propelling the vehicle at the relevant time and was sitting on the steering and thus he should be treated as driver. Admittedly, the owner who is respondent no.4, his name stands in the record of the RTO as owner of the vehicle involved in the road accident. This Court fails to understand as to under which proportion learned advocate for the appellant submitting that since the deceased was riding the car owned by his brother, he has stepped into the shoes of the owner. Such an argument on the part of learned advocate for the appellant is completely in contrast to the legal definition of "driver" and "owner" and therefore cannot be sustained in the eye of law.
18. In Valiben Laxmanbhai Thakore (Koli) wd/o Late Laxmanbhai Ramsingbhai Thakore (Koli) vs. Kandla Dock Labour Board [2022 (1) GLR 440], three Judge Bench of this Court has held that in paragraph 13 and 15 as under:
Page 7 of 9 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 22:34:57 IST 2025NEUTRAL CITATION C/FA/3223/2019 ORDER DATED: 13/02/2025 undefined "13. Thus, when the owner of a vehicle pay additional premium and same is accepted by the Insurance Company, liability of the Insurance Company gets extended under the Motor Vehicles Act. Section 147 of the Act clearly prescribes for statutory liability to cover risk of paid Driver and Conductor under the Insurance Policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the Insurance Company. Thus, the risk of paid Driver and Conductor would be covered under the Insurance Policy. Only when the additional premium is not paid, liability would be as per the Employees Compensation Act, 1923 and in such cases, compensation would be computed as prescribed under the Act which is limited to the extent provided under provisions of the Act. However, when owner pays additional premium to cover the legal liability of his paid driver and conductor to the Insurance Company, as such, the Insurance Company is enlarging the scope for unlimited liability for payment of compensation, when additional premium is accepted. The liability of the Insurance Company gets extended and it has no right to raise issue of self negligence or otherwise of the such class of the driver of the Insured vehicle. By accepting additional premium as per the IMT 28, the Insurance Company expressed its willingness to extend its liability under the Clause of Legal Liability to the Paid driver and conductor as envisaged under Section 147 of the Act.
Thus, in our opinion, Insurance Company has no legal right to avoid its legal liability under the indemnity clause arising from the contract of insurance towards the insured - owner of such classes of vehicles. xxx xxx xxx
15. In our opinion, by accepting additional premium, the Insurance Company indemnifies the owners for paid Driver and / or Conductor and risk of Driver / Conductor is covered under it. Upon death or injury caused to the paid Driver and / or Conductor, the Insurance Company would be liable to satisfy such claim irrespective of the self negligence. Thus, the observations made by the Division Bench in the case of Saberabibi Hisammiya Umarvmiya & Anr (supra) lays down the correct law. Reference is thus, red accordingly."
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8. In view of above, the submission that deceased since stepping into shoes of owner, his legal heirs cannot get compensation under the Motor Vehicle Act, 1988 is negatived. The appeal sans merit and deserves to be dismissed. It is, accordingly, dismissed. Consequently, connected application, if any, also stands disposed of. Registry is directed to send back the record and proceedings to the concerned Tribunal, forthwith.
(J. C. DOSHI, J) GAURAV J THAKER Page 9 of 9 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 22:34:57 IST 2025