Gujarat High Court
United India Insurance Co. Ltd vs Bava Sajjanben Wd/O Shankergiri ... on 21 December, 2021
C/FA/3183/2009 JUDGMENT DATED: 21/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3183 of 2009
With
R/FIRST APPEAL NO. 3184 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 copyNo
of the judgment ?
4 Whether this case involves a substantial question No
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
BAVA SAJJANBEN WD/O SHANKERGIRI DAHYAGIRI & 5 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 21/12/2021
ORAL JUDGMENT
1. The present appeals are filed by the Insurance Company challenging the impugned judgment and award passed by the Motor Accident Claims Tribunal (Main), Mehsana dated 10.12.2008 in MACP Nos. 699 of 1996 and 700 of 1996 Page 1 of 4 Downloaded on : Wed Jan 12 13:10:06 IST 2022 C/FA/3183/2009 JUDGMENT DATED: 21/12/2021 respectively. These appeals are decided by the common judgment.
2. The brief facts of the present case are as under.
2.1 On the date of accident, deceased Shankergiri and Dahyagiri were travelling in Truck bearing registration No. GJ03-U-8835 with their house hold kits and when the said truck reached near the place of accident, due to rash and negligent driving of truck driver, offending vehicle was turned turtle and accident took place. As a result of which, Shankergiri and Dahyagiri had received serious injuries and died afterwards due to vehicular accident. The opponent No.1 is the owner of the offending vehicle and he is liable to pay an amount of compensation to the original claimants under the principles of vicarious liability. The opponent No.2 is the Insurance Company with which the offending vehicle was insured on the date of accident and therefore, opponent No.2 is liable to indemnify the amount of compensation to the original claimants.
3. Learned advocate for the appellant - Insurance Company has submitted that the deceased were travelling in a goods carriage as they were sitting as gratuitous passenger and therefore, no liability can be fastened upon the appellants. It is submitted that these appeals are mainly on three grounds that the Tribunal has committed a serious error while passing the impugned award without considering the fact that the Panchnama is not supported the case of the claimants, there was no household articles were found at the place of the accident, the Tribunal disbelieved the fact while passing the Page 2 of 4 Downloaded on : Wed Jan 12 13:10:06 IST 2022 C/FA/3183/2009 JUDGMENT DATED: 21/12/2021 impugned order.
It is further contended by the learned advocate for the appellant that the vehicle in question involved in the accident is not recovered and there is no additional premium were paid towards the liability of the passengers. Therefore, the Insurance Company cannot be held liable. Learned advocate for the appellant has relied on the judgment of this Court in the case of New India Insurance Com. Ltd. Vs. Minor Mahesh Kanubhai reported in 2016 ACJ 557 and contended that the original claimants were travelling in the vehicle in question as a gratuitous passengers.
4. I have heard learned advocate for the appellant- Insurance Company.
5. Though notice is served upon the concerned respondents, but none appears on behalf of the respondents.
6. I have considered the submissions made by the learned advocate for the appellant and the averments made in the memo of appeals and the arguments advanced by the learned advocate for the appellant. Considering the ratio laid down by this Court, the present appeals require to be allowed.
7. Hence, the present appeals are allowed. The impugned judgment and order passed by the Motor Accident Claims Tribunal (Main), Mehsana dated 10.12.2008 in MACP Nos. 699 of 1996 and 700 of 1996 respectively are hereby quashed and set aside. The Insurance Company is exonerated from the liability. The impugned judgment and order passed by the Page 3 of 4 Downloaded on : Wed Jan 12 13:10:06 IST 2022 C/FA/3183/2009 JUDGMENT DATED: 21/12/2021 Tribunal is modified to the extent that the appellant - Insurance Company is ordered to be exonerated from its liability. The amount which is deposited by the Insurance Company before the Tribunal, out of which, if any amount is paid to the claimants is not to be recovered and the remaining amount to be refunded to the present appellant - Insurance Company with interest accrued on it. However, it is open for the original claimants to recover the amount of compensation from the owner and driver of the offending vehicle. It is further observed that the amount which is disbursed in the name of original claimants also to be recovered by the Insurance Company from the original owner and driver by the execution proceedings.
Record and Proceedings be sent back to the concerned Tribunal forthwith.
(HEMANT M. PRACHCHHAK,J) SALIM/ Page 4 of 4 Downloaded on : Wed Jan 12 13:10:06 IST 2022