Gujarat High Court
United India Insurance Co. Ltd vs Punjabhai Mangalbhai Solanki on 29 September, 2022
C/FA/1697/2008 JUDGMENT DATED: 29/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1697 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. 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
PUNJABHAI MANGALBHAI SOLANKI & 3 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MS BANNA S DUTTA(315) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 29/09/2022
ORAL JUDGMENT
1. This appeal, under Section 173 of the Motor Vehicles Act, 1988 ('the Act' for short), is filed by the Insurance-Company as appellant, challenging the judgment and award dated 08.03.2007, of the Motor Accident Claims Tribunal (Auxi.) Fast Track Court No.11, Page 1 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 Kheda at Nadiad in the Motor Accident Claims Petition No.349 of 1996, wherein the Tribunal awarded total compensation of Rs.1,62,500/- with interest at the rate of 9% per annum from the date of filing of Claim Petition till realisation with proportionate costs. The Tribunal further in the judgment and award dated 08.03.2007, directed the Insurance Company to first pay the amount of compensation and then permitted to recover from the owner of the vehicle involved.
2. In this appeal, appellant is the Insurance Company with whom the vehicle in question was insured at the relevant time. Respondent Nos.1, 2 and 3 are the original-claimants and respondent 4 is a driver-cum-owner of vehicle No.GJ-7X-2432.
3. The facts emerging from the record of this appeal are as under:
On 18.02.1996, Natubhai Punjabhai (hereinafter referred to as 'deceased') was travelling in Chhakdo Rickshaw No. GJ-7X-2432, at that time, the vehicle (Chhakdo Rickshaw) turned turtle and Natubhai sustained grievous injury and succumbed to the same.Page 2 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022
C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 For the said accident, original claimants filed claim petition under Section 166 of the Act, seeking compensation of Rs. 2,50,000/-. It was case of the original-claimants that the accident occurred when the deceased was travelling in a Chhakdo Rickshaw carrying goods. The accident occasioned on account of rash and negligent driving of driver of Chhakdo Rickshaw. As deceased was earning Rs.1500/- per month by doing labour work, claimants were entitled for the compensation as claimed.
Upon claim petition being filed, notices were issued.
Before the Tribunal though served, opponent No.3 (owner/ driver of the Chhakdo Rickshaw No. GJ-7X-2432), chose not to appear. The Insurance Company appeared and filed its written statement below Exh.32. It was case of the Insurance Company before the Tribunal that deceased Natubhai Punjabhai was travelling as gratuitous passenger and as he was travelling as a gratuitous passenger, Insurance Company is not liable for the payment of compensation as claimed. It was further case of the Insurance Company before the tribunal that assuming without admitting that even if the passenger Page 3 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 was travelling with the goods in 'chakdo rickshow'; extra premium was not paid by the owner of the vehicle and therefore also, Insurance Company is not liable for the payment of compensation.
4. The Tribunal after hearing the parties and upon appreciation of the evidence on record, decided the issues as under: -
(i) In relation to negligence, the Tribunal held driver of Chhakdo Rickshaw as sole negligent for occurrence of the accident.
(ii) In relation to compensation, the Tribunal, awarded total compensation of Rs.1,62,500/- with 9% per cent interest per annum from the date of filing of claim petition till realisation with proportionate cost.
(iii) In relation to liability, the Tribunal held that the deceased was travelling in a 'Chakdo Rickshaw' as a gratuitous passenger. It was also held that no extra premium was paid to the Insurance Company for passenger travelling with the goods. The Tribunal however, directed the Insurance Company to pay the Page 4 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 compensation and then permitted to recover from the owner of the vehicle.
5. Aggrieved by the liability fastened on the Insurance Company and consequently the compensation awarded, present appeal is filed by the Insurance Company under Section 173 of the Act.
6. Heard learned advocate Mr. Bhavin Thaker for learned advocate Mr. M.J. Shelat for the appellant -
Insurance Company. Though served, none appeared for original claimants as well as owner of the vehicle. It is pertinent to note that before the Tribunal also none appeared on behalf of the owner of the vehicle. The Co-ordinate Bench of this Court, vide order dated 23.06.2008 has admitted the appeal. Vide order dated 25.09.2008, it was observed that though rule was served to the opponents, no appearance is filed on their behalf and no advocate is engaged on their behalf.
7. Considering the appeal is of the year 2008, and accident is of the year 1996, the matter is taken up for final hearing.
Page 5 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022C/FA/1697/2008 JUDGMENT DATED: 29/09/2022
8. Appearing for the appellant - Insurance Company, learned advocate Mr. Thaker submitted that the Tribunal is in error in holding the Insurance Company liable to pay compensation and then permitted to recover from the owner of the vehicle. Relying upon F.I.R. at Exh.37, he submitted that it was established before the Tribunal that the deceased was travelling in a Chhakdo Rickshaw as a gratuitous passenger. The F.I.R. at Exh-37, was lodged by Hamirbhai Nanjibhai Prajapati - owner of manufacturer of bricks, who stated that the accident occurred, when the deceased after finishing his lunch, left 'Bhattha' to have "Pan Bidi" and while returning, he met with the accident. He further submitted that before Tribunal it was established and therefore rightly held that the deceased was travelling in a vehicle meant for goods transportation as a gratuitous passenger for which no extra premium was paid to the Insurance Company.
Once the deceased was travelling as a gratuitous passenger, the Insurance Company is not liable for the payment of compensation. The Tribunal is therefore in error in fastening the liability on Insurance Company by directing to make the payment and then to recover from the owner of Chhakdo Rickshaw. He thus, submitted that Page 6 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 the Insurance Company may be exonerated from its liability. In support of his submission, Mr. Thaker relied upon the decision of this Court in the case of United India Insurance Co. vs. Rajabhai Kanjibhai Harijan and Ors. reported in 2019 (3) 2039 and the decision in case of United India Insurance Company Ltd vs. Maheshkumar Babulal Shah & 7 Others in First Appeal No.4550 of 2009 and allied appeals.
9. Mr. Thaker thus submitted to allow his appeal.
10. Heard learned advocate for the appellant and perused the evidence on record. Records and Proceedings have been secured and placed for perusal of this Court.
11. Upon re-appreciation of evidence on record, particularity F.I.R. at Exh.37 and panchnama at Exh.38, it is noticed that the deceased was not travelling with the goods in a goods carriage vehicle as claimed but travelling in "Chhakdo Rickshaw" as gratuitous passenger. Therefore, in my opinion, the Tribunal is correct in holding that the deceased was travelling as a gratuitous passenger. Further, it is on record that extra Page 7 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 premium for the passenger travelling with goods was not paid to the Insurance Company.
12. In the decision, in case of Rajabhai Kanjibhai Harijan (supra), this Court has held in paras 5.4, 5.5 and 5.6 as under :
"5.4. Certainly, an order of pay and recover of amount of compensation can be passed against the insurance company by exercising the powers under Article 142 of the Constitution of India by the Hon'ble Apex Court. This Court, in the decision in First Appeal Nos. 246 and 247 of 2011 has taken a view relying upon the decision rendered in First Appeal No. 2121 of 2008 that the direction to pay the amount first and then to recover such amount can only be passed by the Supreme Court exercising powers conferred under Article 142 of the Constitution of India to do complete justice. That, pay and recover order cannot be passed by any Court or Tribunal. Thus, it is clear that pay and recover order can only be passed by the Supreme Court exercising powers under Article 142 of the Constitution of India and no other Court or Tribunal including the High Court can pass such an order. Considering the view taken by this Court in different cases, no order of pay and recover can be passed against the appellant as admittedly, the respondents - claimants were travelling as gratuitous passengers paying the fare for travelling.
5.5 In the case of National Insurance Company Ltd.Page 8 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022
C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 V. Rattani & Others, rendered in Civil Appeal No. 7399 of 2008, the victims of the accident were travelling in the truck as gratuitous passengers and therefore, the Hon'ble Apex Court viewed that the insurance company would not be liable to pay the compensation to the claimants. After the amendment of 1994 in the Motor Vehicles Act, the effect of the provisions contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative would remain the same. Although, the owner of the goods or his authorized representative would now be covered by the policy in insurance in respect of the goods vehicle but it was never the intention of the legislature to provide for the liability of the insurer with respect to the passengers, especially, gratuitous passengers, who were neither contemplated at the time of contract of insurance was entered into nor was any premium paid to the extent of benefit of insurance to such category of people. Therefore, in the facts and circumstances of the case, this Court has no hesitation to hold that the claimants were travelling in the tempo as a gratuitous passengers and in that view of the matter, the appellant herein could not be liable to pay the amount of compensation to the claimants.
12.1. Further, in the decision of this Court in the case of Maheshkumar Babulal Shah (supra), this Court has held in paras 13, 14 and 15 as under :
"13. So far as the contention raised by the appellant - Insurance Company in First Appeals Page 9 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 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 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 Page 10 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 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;"
(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 Page 11 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 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 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 Page 12 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 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 Page 13 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 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 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 Page 14 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 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 subsection (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.
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 Page 15 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022 C/FA/1697/2008 JUDGMENT DATED: 29/09/2022 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."
13. In view of aforestated facts and reasons, in my opinion, once it is held that the deceased was travelling in a 'Chhakdo Rickshaw' as a gratuitous passenger, the Tribunal is in error in directing the Insurance Company to first pay and then permitted to recover from the owner of the vehicle, particularly when no extra premium was paid to the Insurance Company.
14. For the forging reasons, the following order is passed:
Page 16 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022C/FA/1697/2008 JUDGMENT DATED: 29/09/2022
(i) First Appeal No. 1697 of 2008 is allowed in part.
(ii) The appellant-Insurance Company is hereby exonerated from its liability. If any amount is deposited either before the Tribunal and lying in FDR/ or before the Registry, the same shall be refunded to the appellant-Insurance Company forthwith after due verification through RTGS with proportionate costs and interest accrued thereon.
(iii) The amount if any, disbursed to the claimants, shall not be recovered by the appellant-Insurance Company. However, it is open for the claimant to recover the amount which has been refunded to the Insurance Company, from the owner of the vehicle in accordance with law.
(iv) Registry is directed to transmit the Record and Proceedings to the concerned Tribunal forthwith.
No order as to costs.
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(v) Civil Applications, if any pending, stand disposed of.
(MAUNA M. BHATT,J) KUMAR ALOK Page 18 of 18 Downloaded on : Sun Dec 25 02:55:08 IST 2022