Gujarat High Court
National Insurance Company Ltd vs Amarshi Punchanbhai Patel & 3 on 16 February, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/FA/1446/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1446 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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 ?
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NATIONAL INSURANCE COMPANY LTD, JAMNAGAR....Appellant(s)
Versus
AMARSHI PUNCHANBHAI PATEL & 3....Defendant(s)
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Appearance:
MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1
MR MAKBUL I MANSURI, ADVOCATE for the Defendant(s) No. 2 - 4
MR SANDEEP N BHATT, ADVOCATE for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 3 - 4
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 16/02/2017
ORAL JUDGMENT
1. The present appeal is preferred by the appellantInsurance Company to question its liability to pay compensation to the respondent Nos. 2 to 4 under judgment and award dated 31.12.2010 passed by learned Motor Accident Page 1 of 11 HC-NIC Page 1 of 11 Created On Sun Aug 13 17:11:31 IST 2017 C/FA/1446/2011 JUDGMENT Claims Tribunal (Aux.), Jamnagar in Motor Accident Claim Petition No.92 of 2003. The appellantInsurance Company wants to avoid its liability to pay the compensation on the ground that the driver of the offending tanker No. GTY 5660 was not holding valid driving license to drive such category of transport vehicle which carries hazardous or dangerous substance.
2. The facts bereft of unnecessary details giving rise to the present appeal are that the deceasedKawalsingh Sachhasingh was going on foot near sikka patiya, near express hotel on 16.11.2002. At that time, driver of tanker, bearing registration No. GTY5660 came at very high and excessive speed and dashed him down. He suffered fatal injuries and died. At the relevant time, the offending tanker was owned by respondent No.1 and was insured with the appellantInsurance Company. The respondent Nos. 2 to 4 being legal heirs and representatives of the deceased Kawalsingh Sachhasingh filed MACP No.92 of 2003 in the Motor Accident Claims Tribunal, Jamnagar to recover Rs.8,72,000/ as compensation from the respondent No.1 and appellantInsurance Company. The Tribunal, by the impugned judgment and award partly allowed the Claim Petition and directed the appellant and respondent No.1 to pay a sum of Rs.4,48,000/ as Page 2 of 11 HC-NIC Page 2 of 11 Created On Sun Aug 13 17:11:31 IST 2017 C/FA/1446/2011 JUDGMENT compensation to the respondent Nos. 2 to 4 jointly and severally.
3. The appellantInsurance Company wants to avoid its liability on sole ground that at the relevant point of time the driver of the offending tanker was not holding a valid and effective license to drive transport vehicle meant to carry hazardous substance, therefore, this appeal.
4. I have heard Mr. Vibhuti Nanavati, learned advocate for the appellant, Mr. Sandeed N. Bhatt, learned advocate for respondent No.1 and Mr. Makbul I. Mansuri, learned advocate for respondent Nos. 2 to 4.
5. Mr. Nanavati, learned advocate for the appellant submits that admittedly, the offending tanker was meant for transporting hazardous substance and the driver of the tanker was holding license to drive only L.M.V., H.G.V. and passenger vehicles. Though, the tanker was falling under L.M.V. Category, there was no endorsement on the license of the driver to authorized him to drive such a vehicle meant for transporting hazardous goods. He further submits that under the provision of Sub Section 2(a) to Section 14 of the Motor Vehicles Act, license to drive a transport vehicle carrying goods of Page 3 of 11 HC-NIC Page 3 of 11 Created On Sun Aug 13 17:11:31 IST 2017 C/FA/1446/2011 JUDGMENT dangerous or hazardous nature can be effective for a period of one year which can be renewed on condition that the driver undergoes one day refresher course of the prescribed syllabus. Therefore, he submits that since the driver was not holding requisite license, the Tribunal ought not to have fastened the liability to pay the compensation on the appellant. In support of his submission, he has relied upon decision of the Supreme Court in the case of Oriental Insurance Co. Ltd. v. Sony Cheriyan, AIR 1999 SC 3252.
6. He further submits that in case this Court comes to the conclusion that the appellant Insurance Company is liable to pay the compensation to the claimants, liberty may be reserved in favour of the appellant to recover the compensation from the respondent No.1owner of the vehicle under Section 149(4) of the M.V. Act. In support of his submission, he has placed reliance on unreported decision dated 08.05.2014 of this Court in First Appeal No.3289 of 2013 between United India Insurance Company Ltd. v. Bhikhubhai Amarsinhbhai Parmar and others. and one another unreported decision dated 03.05.2016 in First Appeal No.2515 of 2015 between United India Insurance Company Ltd. v. Jayrambhai Mavjibhai Desai (Rabari) and another.
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C/FA/1446/2011 JUDGMENT
7. Mr. Mansuri, learned advocate for the respondent Nos. 2 to 4 submits that the offending tanker was not carrying hazardous goods as is evident from the Exhibit27, panchnama when the accident happened. It is his further submission that the appellant has not examined the driver and owner of the offending tanker and the deceased being third party the appellant Insurance Company is liable to pay the compensation.
8. Mr. Bhatt, learned advocate for the respondent No.1 submits that accident had happened on 16.11.2002 while the driver of the tanker has undergone requisite training on 11.06.2002. He would further submits that the appellantInsurance Company called upon the owner or driver, they would have produced the training certificate relying upon the decision of the Supreme Court in the case of Kulwant Singh and others v. Oriental Insurance Company, 2015 (2) SCC 186. He submits that the appellantInsurance Company cannot disown its liability only because there was no endorsement on the license of the driver. He, therefore, urges that the appeal may be dismissed.
9. This Court has to consider a singular question whether the Tribunal was justified in Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun Aug 13 17:11:31 IST 2017 C/FA/1446/2011 JUDGMENT fastening the liability of payment of compensation on the appellantInsurance Company though the driver of the offending tanker was not having endorsement in his license to drive vehicle carrying dangerous or hazardous substance.
10. The undisputed fact is that the offending tanker falls within the category of Heavy Goods Vehicle and was meant to transport dangerous and hazardous substance. It is also not in dispute that the driver of the offending tanker was holding a valid and effective license to drive L.M.V./H.G.V. and H.P.V. category of vehicles, without endorsement to drive heavy vehicle to transport hazardous goods. and the license was effective from 16.08.1999 to 27.10.2005, whereas, the accident had happened on 16.11.2002 well within the validity period of license. The Supreme Court in the case of Soni Cheriyan (supra) has held as under in paragraph Nos. 14 and 15: "14. Admittedly, respondent was carrying Ether Solvent which has been described as a hazardous and highly flammable article. Since under the 'permit' granted to the respondent he could transport only non hazardous articles, and the insurance policy covered only those goods which were permissible under the Motor Vehicles Act to be carried by the respondent, the judgments dated 2441996 and 1021997 passed by the State and National Commissions respectively, are incorrect.
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15. The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein."
11. It is thus clear that the case before the Supreme Court, the vehicle was meant for transporting only nonhazardous articles and the Insurance Policy covered only those goods which were permissible under the Motor Vehicles Act. In contravention of this permit on the date of the accident, highly inflammable article Ither solvent was being carried in the offending vehicle. The vehicle caught fire on account of inflammable substance which was being carried in it. The Supreme Court, therefore, held that carrying hazardous substance in the vehicle having permit to transport only nonhazardous article amounts to breach of condition of the policy entitling the Insurance Company to disown its liability.
12. The facts of the present case cannot be equated with the facts of the case before the Page 7 of 11 HC-NIC Page 7 of 11 Created On Sun Aug 13 17:11:31 IST 2017 C/FA/1446/2011 JUDGMENT Supreme Court. Herein in the present case the deceasedKawalsingh Sachhasingh was going on foot when he was hit by the offending tanker causing him fatal injuries.
13. Reliance on unreported decisions dated 08.05.2014 and 03.05.2016 are of no avail to the appellantInsurance Company. The perusal of these two decisions reveals that the driver of the offending vehicle was not holding a valid and effective license to drive transport vehicle and it amount to breach of condition of policy. Under the circumstances, this Court reserved liberty in favour of the appellantInsurance Company to recover awarded compensation from the owner of the offending vehicle under Section 149(4) of the Motor Vehicles Act. Since, in the case on hand, the driver of the offending heavy goods vehicle was holding a valid and effective driving license to drive such category of vehicles. Though, there was no endorsement of driving goods vehicle carrying hazardous substance, since this Court has recorded the findings that the accident had occurred owing to the negligence on the part of the driver of the offending tanker and not because of the dangerous or hazardous substance being carried, if any, in the vehicle, the liberty in favour of the appellantInsurance Company cannot reserved to permit them to recover Page 8 of 11 HC-NIC Page 8 of 11 Created On Sun Aug 13 17:11:31 IST 2017 C/FA/1446/2011 JUDGMENT the awarded compensation. In my opinion, the appeal lacks merits and no interference is warranted in the impugned judgment and award of the Tribunal.
14. The Supreme Court in the case of Kulwant Singh and others (supra) has held as infra in paragraph No.9 and 11: "9. In S. Iyyapan the question was whether the driver who had a licence to drive "light motor vehicle" could drive "light motor vehicle"
used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the insurance company could not disown its liability. It was observed: (SCC p. 77, para18) "18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving license to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the license to drive the commercial vehicle. The impugned judgment Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008(Mad) is therefore, liable to be set aside.
11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights."
15. The perusal of the record of the Claim Petition reveals that the appellantInsurance Page 9 of 11 HC-NIC Page 9 of 11 Created On Sun Aug 13 17:11:31 IST 2017 C/FA/1446/2011 JUDGMENT Company has not led any evidence to establish on record that at the time of the accident, the offending tanker was carrying any hazardous or dangerous substance. In any case, the facts are very vivid the deceased Kawalsingh Sachhasingh was hit by the offending tanker while he was walking on the road. I am, therefore, of the opinion that the accident had not happened on account of hazardous or dangerous substance, if any, being carried in the offending tanker. It emerges from the record that the driver of the tanker was holding a valid and effective license to drive L.M.V., H.G.V. and passenger vehicle, it is only because of rash and negligence driving of the offending vehicle, the accident had occurred, and therefore, the appellantInsurance Company cannot avoid its liability to pay the compensation to the claimants.
16. For the foregoing reasons, the appeal fails and is hereby dismissed. In the facts of the case the parties are left to bear their own costs.
17. Amount, if any, lying with the Tribunal is ordered to be disbursed in favour of the claimants in terms of the impugned judgment and award.
18. Record and Proceedings be remitted to the Tribunal forthwith.
Page 10 of 11 HC-NIC Page 10 of 11 Created On Sun Aug 13 17:11:31 IST 2017 C/FA/1446/2011 JUDGMENT (A.G.URAIZEE,J) Manoj Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun Aug 13 17:11:31 IST 2017