Gujarat High Court
Reliance General Insurance Company Ltd vs Bhagvanbhai Kamabhai Ulva on 14 December, 2022
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/FA/3551/2017 JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3551 of 2017
With
R/CROSS OBJECTION NO. 13 of 2018
In
FIRST APPEAL NO. 3551 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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RELIANCE GENERAL INSURANCE COMPANY LTD
Versus
BHAGVANBHAI KAMABHAI ULVA & 6 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
JENIL M SHAH(7840) for the Defendant(s) No. 2,7
RULE SERVED for the Defendant(s) No. 3,4,5,6
TATVDEEP J JANI(7227) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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C/FA/3551/2017 JUDGMENT DATED: 14/12/2022
Date : 14/12/2022
ORAL JUDGMENT
[1.0] This First Appeal is filed under Section 173 read with Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as 'the Act') by the Insurance Company and the Cross Objection is filed by the claimants under Order XLI Rule 22 of the Code of Civil Procedure, 1908 challenging the judgment and award passed by the Chairperson, M.A.C. Tribunal (Auxi.), Bhavnagar dated 28.12.2016 in Motor Accident Claim Petition No.537 of 2007 whereby the respondents - claimants were awarded Rs.6,67,600/- to be recovered from the owner - Insurance Company with running rate of interest at the rate of 9% per annum from the date of the petition till payment alongwith proportionate cost of the petition.
[2.0] For the sake of convenience, the appellant of First Appeal No.3551 of 2017 would be referred to as Insurance Company and respondent nos.2 to 7 in it would be referred to as claimants and respondent no.1 would be referred to as the owner of the vehicle in question.
[3.0] The claimants filed the Claim Petition under Section 166 of 'the Act' claiming compensation to the tune of Rs.7 lakhs on account of death of Ghanshyambhai Bhikhabhai Joshi caused in a vehicular accident, which occurred on 11.06.2007 at about 6:30 p.m. on the way from Tana to Lavarda, Near Mafatnagar, Nr. Monabhai Kumbhars house. According to the claimants, on 11.06.2007, the deceased - Ghanshyambhai Page 2 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022 C/FA/3551/2017 JUDGMENT DATED: 14/12/2022 was going at the field of Jilubhai Bhagvanbhai Chavda for replacement of 11 cement sheets, which he brought from Palitana and tied it on a three wheel Tempo bearing No.GJ-11T- 7351 owned by the owner. He accompanied the three wheel Tempo from his residence to look after the said goods. While carrying goods in the said three wheeler Tempo at about 6:30 p.m., when they reached near Mafatnagar on Tana - Lavrada Road, the said three wheel Tempo driven by its driver with full speed in rash and negligent manner so as to endanger human life lost control over the steering and thereby the said three wheel Tempo turned turtle because of which deceased - Ghanshyambhai came below the cement sheet and received injuries. When he was taken to Sihor Community Health Centre, on examination by the Doctor, he was declared dead and his postmortem was also performed there. According to the claimants, the accident occurred due to the sole negligent driving of the driver. The FIR to this effect has been registered with Sihor Police Station against driver Sureshbhai Bhojabhai being I-C.R. No.118 of 2007 and charge-sheet is also filed against him. Opponent nos.1 and 2, being the owner and the Insurance Company of the offending vehicle, they are jointly and severally liable to pay the amount of compensation as claimed by the claimants.
[3.1] The claimants have further submitted that the deceased was aged 27 years at the time of the accident and was hale and hearty and not addicted to any vices and earning Rs.7000/- per month by doing diamond polishing work of single table at the factory of Pravinbhai Pragjibhai Godhani as also in holidays he was doing agricultural labour work at the field of Page 3 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022 C/FA/3551/2017 JUDGMENT DATED: 14/12/2022 Dhirubhai Shamjibhai Godhani and thereby he was maintaining his whole family. The claimants, included wife, daughter, two sons and parents of the deceased - Ghanshyambhai, and therefore, they claimed in all Rs.7 lakhs with interest thereon at the rate of 12% per annum and cost.
[3.2] As stated earlier, on conclusion of trial, considering the evidence adduced before the tribunal and the documents produced and proved, the tribunal awarded the amount, as aforesaid, which is under challenge by way of First Appeal as also Cross Objection for enhancement of the compensation amount.
[4.0] Mr. Vibhuti Nanavati, learned advocate for the appellant, submitted that there is no dispute that the owner or his authorized representative of the goods carried in the goods Vehicle is entitled to compensation as provided under Section 147(1)(b)(i) of 'the Act'. However, according to him in view of Rule 122 of the Gujarat Motor Vehicles Rules, 1989 (hereinafter referred to as 'the Rules') deceased was travelling in a goods vehicle, which was having seating capacity of only one, including the driver, the claimants are not entitled to the compensation for the death of Ghanshyambhai, who was travelling in a goods vehicle beyond the seating capacity mentioned in the registration certificate at Exh.44, and therefore, it was in breach of condition of policy, and therefore, the Insurance Company is not liable to pay the compensation to the claimants. This is the only law point raised by the learned advocate for the appellant to assail the judgment and award.
Page 4 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022C/FA/3551/2017 JUDGMENT DATED: 14/12/2022 [4.1] In support of the said contention he relied on the decision of the Supreme Court in the case of United India Insurance Co. Ltd. Vs. Suresh K. K. reported in 2008 (12) SCC 657 to submit that policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods but without the goods being carried, the insurer would not be liable to indemnify the claim, and therefore, he has submitted that considering the aforesaid law point, the Insurance Company may be exonerated of the liability to pay the compensation.
[4.2] So far as Cross Objection is concerned, Mr. Nanavati, learned advocate is unable to dispute that in view of the latest decision of the Supreme Court in the case of United India Insurance Co. Ltd. Vs. Satinder Kaur reported in 2021 (11) SCC 780, each claimants are entitled for consortium at the rate of Rs.40,000/-, so far as enhancement of compensation under the head of loss of consortium, loss of estate and funeral expenses are concerned.
[4.3] As against that, Mr. Jenil Shah, learned advocate for the claimants, submitted that in view of the decision of the Supreme Court in the case of Satinder Kaur (Supra), claimant no.1 being the wife would be entitled for compensation towards spousal consortium, claimant nos.2 to 4 would be entitled to Rs.40,000/- each towards parental consortium whereas claimants nos.5 and 6, being parents of the deceased - Ghanshyambhai, would be entitled for Rs.40,000/- each towards filial consortium and to that effect Page 5 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022 C/FA/3551/2017 JUDGMENT DATED: 14/12/2022 according to his submission his Cross Objection is required to be allowed and compensation to the tune of Rs.2,40,000/- in all is required to be awarded, towards the head of loss of consortium.
[4.4] He further submitted that the loss of estate, which is awarded at the rate of Rs.10,000/- should be Rs.15,000/- as determined by the Supreme Court in the case of NICL Vs. Pranay Sethi reported in 2017 (16) SCC 680.
[4.5] Over and above that, towards funeral expenses, the tribunal has awarded Rs.5000/- it should have been Rs.15,000/- in view of the decision of the Supreme Court in the case of Pranay Sethi (Supra), and therefore, he has submitted that while dismissing the Appeal filed by the Insurance Company, the compensation is required to be enhanced, as argued aforesaid.
[5.0] Having heard the learned advocates for the appearing parties and going through the impugned judgment and award as also the provisions of law and the precedents cited by the learned advocates, it appears that there is no dispute so far as grant of compensation at the rate of Rs.40,000/- per claimant towards loss of consortium, which was granted lumpsum to be Rs.10,000/- by the tribunal towards the same while determining the Claim Petition in the year 2016. However, in view of the recent decision of the Supreme Court holding claimants entitled for compensation at the rate of Rs.40,000/- each towards loss of consortium as referred to in the case of Satinder Kaur (Supra) and in the Page 6 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022 C/FA/3551/2017 JUDGMENT DATED: 14/12/2022 case of Magma General Insurance Co. Ltd. Vs. Nanuram @ Chuhruram reported in 2018 (18) SCC 130, however, the tribunal is not in error for the same but in view of the latest decision of the Supreme Court, the Cross Objection for enhancement of compensation towards loss of consortium is required to be enhanced since there are six claimants.
[5.1] Since the tribunal has already awarded Rs.10,000/- towards loss of consortium and they are held entitled to Rs.2,30,000/- towards loss of consortium as Rs.10,000/-, is already awarded is required to be deducted and they are held entitled to Rs.2,40,000/- in all towards loss of consortium.
[5.2] In view of the decision in the case of Pranay Sethi (Supra), the tribunal has awarded Rs.10,000/- towards loss of estate, which should be Rs.15,000/- instead, and therefore, there has been to be an enhancement of Rs.5,000/- towards loss of estate. Towards funeral expenses, the tribunal has awarded only Rs.5000/-, which should be Rs.15,000/- as held in the case of Pranay Sethi (Supra). Thus on the head of funeral expenses, the claimants are entitled to Rs.10,000/- as enhancement over and above what is awarded by the tribunal, and therefore, in all the claimants are entitled for the compensation to the tune of Rs.2,30,000/- towards loss of consortium, Rs.5000/- enhancement towards loss of estate and Rs.10,000/- towards funeral expenses, and therefore, total Rs.2,45,000/- as enhancement to the amount already awarded.
[5.3] Taking first the legal point raised by Mr. Nanavati, learned advocate for the appellant that in view of Rule 122 of Page 7 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022 C/FA/3551/2017 JUDGMENT DATED: 14/12/2022 The Gujarat Motor Vehicles Rules, 1989 (hereinafter referred to as 'the Rules') when a vehicle is not having seating capacity of more than one being goods vehicle, even passenger travelling in the said goods vehicle with goods would be in breach of conditions of the policy, and therefore, the Insurance Company is not liable to indemnify the insured needs to be examined and for that Rule 122 of 'the Rules' is required to be quoted thus"
122. Carriage of persons in goods carriages:-
"(1) Subject to the provisions of this rule, no person shall be carried in a goods carriage.
Provided that the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle carried free of charge, or a police officer in uniform traveling on duty, may be carried in a goods carriage:
Provided further that the total number of persons so carried shall not be more than -
(i) one, in case of a light motor vehicle having gross vehicle weight less than 900 kilograms;
(ii) three, in case of any other light motor vehicle;
(iii) five, in case of any medium goods vehicle;
(iv) seven, in case of any heavy goods vehicle.
Provided further that the provision of second proviso to this sub-rule shall not apply in case where integral seating arrangements providing a reasonably comfortable seating space for each person has been made in the goods carriage for more than the number specified in the second Page 8 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022 C/FA/3551/2017 JUDGMENT DATED: 14/12/2022 proviso (2)......
(6) No person shall travel in a goods carriage in contravention of the provisions of this rule."
[5.4] To substantiate his submission, he has drawn attention of the Court to the certificate of registration Exh.44 contending that when the seating capacity of a vehicle registered is only one including the driver and gross vehicle weight 900 kg, no other person can be carried, may be as owner or representative of owner with goods, in a goods vehicle having capacity not more than one, and therefore, the Insurance Company is not liable to indemnify the insured. He laid much stress on the second proviso to sub-rule (1) of Rule 122 and Clause (i) to contend that Rule 122 opens up with restriction. Subject to the provisions of 'the Rules', no person shall be carried in a goods carriage with certain exceptions and second proviso provided that total number of persons so carried shall not be more than one in case of a light motor vehicle having gross vehicle weight less than 900 kg, and therefore, according to his submission, when the seating capacity of the goods carriage involved in the accident is only one, no person over and above the driver could be carried in it, it may be a goods vehicle, and therefore, the Insurance Company is not liable to indemnify the insured.
[5.5] Though the said argument appears to be very attractive, once it is closely examined, Rule 122 of 'the Rules' has nothing to do with any seating capacity of any goods vehicle, may be three wheeler Tempo, four wheeler or light Page 9 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022 C/FA/3551/2017 JUDGMENT DATED: 14/12/2022 motor vehicle. While it exempts the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle carried free of charge, or a police officer in uniform traveling on duty, may be carried in a goods carriage with a further restriction that total number of persons so carried shall not be more than one in case of light motor vehicle having gross vehicle weight less than 900 kg. If the provision is read as it is, it talks about excepted persons like owner or the hirer or a bonafide person etc. to be carried in the said vehicle, and therefore, any passenger travelling in a three wheeler goods vehicle where its seating capacity may be one, including driver, it includes person so carried alongwith the goods, and therefore, Rule 122 of 'the Rules' does not prohibit, as argued by the learned advocate for the appellant, to carry a person with goods in a goods vehicle where the seating capacity is only one.
[5.6] Here, it is not the case of the Insurance Company that the deceased was travelling in the three wheeler Tempo without any goods. The deceased carried 11 cement sheets as pleaded and there is no dispute about the same and because the three wheeler Tempo turned turtle all the cement sheets had fallen upon him, and therefore, he died. As such, there is no dispute about the vehicular accident also as the three wheeler Tempo turned turtle and the owner of the vehicle has also stepped into the witness box and admitted the deceased travelling in it alongwith the goods. There is no scope left for the Insurance Company to deny their liability. Thus, the reliance placed on Rule 122 of 'the Rules' to avoid liability in this case of the Insurance Company is not helpful to the Page 10 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022 C/FA/3551/2017 JUDGMENT DATED: 14/12/2022 learned advocate for the appellant.
[5.7] Reliance placed on the decision in the case of Suresh K. K. (Supra) is also not much of help to him as the said case was determined on its own facts. In the goods vehicle though goods were not carried, person hired the goods carriage without goods being carried met with an accident and he claimed compensation, which was denied to him as held in paragraph 9 of the aforesaid decision may be quoted with approval as under:
9".......But the question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. The purpose for which the provision had to be amended by Act 54 of 1994 was to widen the scope of the liability of the insurance company."
[5.8] As in that case though hirer claim to be owner of goods, hirer of goods vehicle was traveling in the vehicle without goods, the Insurance Company was not held liable in such circumstances. However, in this case, owner of the goods or owner or representative of goods was travelling in goods vehicle alongwith goods, which is undisputed, and therefore, the Insurance Company cannot be absolved from the liability to indemnify the insured even pressing into service Rule 122 of Page 11 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022 C/FA/3551/2017 JUDGMENT DATED: 14/12/2022 'the Rules'.
[6.0] Therefore, the claimants are entitled to enhancement of claim, as aforesaid, being Rs.2,30,000/- towards loss of consortium, as Rs.10,000/- is already awarded Rs.5000/- towards loss of estate is enhanced as it could have been Rs.15,000/- and as Rs.10,000/- is already awarded towards funeral expenses, it could have been Rs.15,000/- so Rs.5000/- is enhanced towards funeral expenses, and therefore, in all the claimants are entitled to enhancement of compensation to the tune of Rs.2,45,000/- with simple interest at the rate of 6% per annum. In view thereof, the First Appeal filed by the Insurance Company is hereby dismissed and the Cross Objection is hereby allowed to the aforesaid extent.
[6.1] It is expected that the Insurance Company will deposit the enhanced amount as aforesaid with 6% simple interest within a period of eight weeks from today.
Record and Proceedings be sent back forthwith to the trial Court.
(UMESH A. TRIVEDI, J.) siji Page 12 of 12 Downloaded on : Sat Dec 24 03:21:20 IST 2022