Gujarat High Court
Bachubhai Gopalbhai Dana vs National Insurance Co. Ltd & 4 on 8 June, 2017
Author: M.R. Shah
Bench: M.R. Shah, B.N. Karia
C/FA/2032/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2032 of 2007
TO
FIRST APPEAL NO. 2034 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
BACHUBHAI GOPALBHAI DANA....Appellant(s)
Versus
NATIONAL INSURANCE CO. LTD & 4....Defendant(s)
==========================================================
Appearance:
MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1
MR. ALKESH N SHAH, ADVOCATE for the Defendant(s) No. 1
MR P K PARMAR, ADVOCATE for the Defendant(s) No. 2.1 - 2.3
SERVED BY AFFIX.-(R) for the Defendant(s) No. 3
==========================================================
CORAM:HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Page 1 of 7
HC-NIC Page 1 of 7 Created On Fri Aug 18 05:54:59 IST 2017
C/FA/2032/2007 JUDGMENT
Date : 08/06/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. As common question of law and facts arises in this group of appeals, all these appeals are decided and disposed of by this common judgement and order.
2.00. Feeling aggrieved and dissatisfied with the impugned judgement and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Bharuch in Motor Accident Claim Petition Nos. 370, 24 and 700 of 2000, original opponent No.2 - owner of the vehicle involved in the accident, has preferred the present appeals in so far as exonerating the original respondent No.3 - National Insurance Company Limited and consequently fastening the liability to pay compensation to the original claimants, upon the appellant herein - owner of the vehicle involved in the accident.
3.00. That in a vehicular accident which occurred on 12/5/1996, out of passengers travelling in the Truck bearing registration No.GJ-12-U-5406 owned by the appellant, two passengers died and one passenger sustained injuries. The heirs of deceased Mohammad Valibhai Patel preferred Motor Accident Claim Petition No. 370 of 2000; heirs of deceased Ahemadbhai Musabhai Patel preferred Motor Accident Claim Petition No. 700 of 2000 and injured claimant - Alibhai Haji- Adambhai preferred Motor Accident Claim Petition No. 24 of 2000, before the learned tribunal claiming compensation.
3.01. Though served nobody appeared on behalf of the Page 2 of 7 HC-NIC Page 2 of 7 Created On Fri Aug 18 05:54:59 IST 2017 C/FA/2032/2007 JUDGMENT appellant - owner of the truck involved in the accident before the learned tribunal.
3.02. On appreciation of evidence and considering the material on record, more particularly considering the fact that the original claimants - passengers travelling in the truck owned by the appellant were unauthorized passengers, by the impugned common judgement and award, the learned tribunal has exonerated the original opponent No.3 - National Insurance Company Ltd. and consequently passed the common judgement and award against the appellant - owner of the Truck involved in the accident.
3.03. Feeling aggrieved and dissatisfied with the impugned judgement and award passed by the learned tribunal insofar as exonerating the original opponent No.3 - Insurance Company and consequently holding the appellant herein - owner of the vehicle involved in the accident liable to pay compensation, original opponent No.2 - owner of the truck involved in the accident has preferred the present appeals.
4.00. Mr.Vibhuti Nanavati, learned advocate has appeared on behalf of the common appellant and Mr.Alkesh Shah, learned advocate has appeared on behalf of the respondent - Insurance Company.
4.01. Mr.Nanavati, learned advocate appearing on behalf of the appellant herein - owner of the truck involved in the accident has vehemently submitted that in the facts and circumstances of the case, the learned tribunal has materially erred in exonerating the original opponent No.3 - Insurance Page 3 of 7 HC-NIC Page 3 of 7 Created On Fri Aug 18 05:54:59 IST 2017 C/FA/2032/2007 JUDGMENT Company.
4.02. Relying upon the Insurance Policy, copy of which is produced along with the Appeal Memo, it is vehemently submitted by Mr.Nanavati, learned advocate appearing on behalf of the appellant that as additional premium of Rs.50/- was paid by the appellant and the Insurance Company accepted the liability to pay compensation to non-fare paying passengers by accepting additional premium, the learned tribunal ought not to have exonerated the original opponent No.3 - Insurance Company.
No other submissions have been made.
Making above submissions it is requested to allow the present appeals.
5.00. All these appeals are vehemently opposed by Mr.Alkesh Shah, learned advocate appearing on behalf of the respondent - Insurance Company.
5.01. Mr.Alkesh Shah, learned advocate appearing on behalf of the respondent - Insurance Company has vehemently submitted that as such the appellant - owner of the Truck involved in the accident did not appear before the learned tribunal. It is submitted that no such plea of payment of additional premium was raised before the learned tribunal, which is now raised on behalf of the appellant in the present appeals. It is submitted that therefore, the appellant may not be permitted to take a plea / defence which was not raised before the learned tribunal.
5.02. Mr.Alkesh Shah, learned advocate appearing on Page 4 of 7 HC-NIC Page 4 of 7 Created On Fri Aug 18 05:54:59 IST 2017 C/FA/2032/2007 JUDGMENT behalf of the respondent - Insurance Company has further submitted that even on merits also the learned tribunal has not committed any error in exonerating the Insurance Company.
5.03. Mr.Alkesh Shah, learned advocate appearing on behalf of the respondent - Insurance Company has vehemently submitted that as such the learned tribunal has not committed any error in exonerating the original opponent No.3 - Insurance Company. It is submitted that admittedly all the passengers were travelling in the goods vehicle. It is submitted that even as admitted by the original claimants, all the persons who either died or sustained injuries were travelling as unauthorized passengers. It is submitted that nothing is on record and even it is not the case on behalf of the appellant - owner of the truck involved in the accident that the passengers who died or sustained injuries paid any fare. It is submitted that the vehicle involved in the accident was goods vehicle and the passengers who were travelling in the Truck were not carrying any goods with them, for which the truck was hired, and therefore, additional liability accepted by the Insurance Company shall not be applicable to such passengers. It is submitted that the appellant would be justified in relying upon the payment of additional premium only if the persons travelling in the goods vehicle with goods and fare was not paid by such passengers or they were owners of the goods or they were authorized by the owners of the goods, and travelling with the goods. It is submitted that, therefore, those persons who were travelling in the Truck cannot be said to be authorized non-fare paying passenger. It is submitted that additional liability was accepted only with respect to Page 5 of 7 HC-NIC Page 5 of 7 Created On Fri Aug 18 05:54:59 IST 2017 C/FA/2032/2007 JUDGMENT authorized non-fare paying passengers. It is submitted that therefore, the learned tribunal has not committed any error in exonerating the Insurance Company and fastening the liability to pay compensation upon the appellant - owner of the Truck involved in the accident.
Making above submissions, it is requested to dismiss the present appeals.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length.
6.01. We have perused the impugned common judgement and award passed by the learned tribunal. We have also re-appreciated the entire evidence on record.
6.02. At this stage, it is required to be noted that as such the appellant herein did not appear before the learned tribunal and did not contest the claim petitions and therefore, no such plea / defence was taken by the appellant before the learned tribunal which is now sought to be raised in the present appeals. The plea / defence regarding payment of additional premium is now raised on behalf of the appellant for the first time before this Court. However, still this Court has considered the submissions on merits and has considered the Insurance Policy, which, as such, was not even exhibited by the learned tribunal.
6.03. From the evidence on record it emerges that the vehicle involved in the accident - Truck was a goods vehicle. It is also not in dispute that all the passengers travelling in the Page 6 of 7 HC-NIC Page 6 of 7 Created On Fri Aug 18 05:54:59 IST 2017 C/FA/2032/2007 JUDGMENT truck in question who either died or sustained injuries were unauthorized passengers without any goods. In the cross- examination, the original claimants have specifically admitted that the concerned persons were travelling as passengers. Under the circumstances when the concerned persons were travelling as passengers in the goods vehicle without any goods, it cannot be said that those persons were authorized non-fare paying passengers. Under the circumstances, submission on behalf of the appellant that as the Insurance Company accepted additional premium and accepted liability to pay compensation to authorized non-fare paying passengers and therefore, the Insurance Company is to be held liable to pay compensation, cannot be accepted. As observed hereinabove, the persons who were travelling in the goods vehicle were unauthorised passengers. Under the circumstances, as such no error has been committed by the learned tribunal in exonerating the respondent No.3 - Insurance Company.
7.00. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned common judgement and award passed by the learned tribunal. Under the circumstances, all these appeals fail and the same deserve to be dismissed and are accordingly dismissed. No costs.
Sd/-
(M.R. SHAH, J.) Sd/-
(B.N. KARIA, J.) Rafik.
Page 7 of 7HC-NIC Page 7 of 7 Created On Fri Aug 18 05:54:59 IST 2017