Gujarat High Court
New India Assurance Company Ltd vs Bhailal Bhikhubhai Rathod on 12 January, 2022
C/FA/4215/2008 JUDGMENT DATED: 12/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4215 of 2008
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 ? Yes
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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NEW INDIA ASSURANCE COMPANY LTD
Versus
BHAILAL BHIKHUBHAI RATHOD & 2 other(s)
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Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 3
SERVED BY PUBLICATION IN NEWS(75) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 12/01/2022
ORAL JUDGMENT
1. The present appeal is filed by the Insurance Company against the impugned judgment and award passed by the Motor Accident Claims Tribunal, Fast Track Court No.5, Surat dated 29.01.2008 in MACP No. 572 of 2001, whereby the Page 1 of 10 Downloaded on : Sun Apr 24 09:19:49 IST 2022 C/FA/4215/2008 JUDGMENT DATED: 12/01/2022 Tribunal has awarded an amount of compensation of Rs. 3,26,000/- with interest at the rate of 9% per annum from the date of the claim petition till realization to the original claimant.
2. The brief facts of the present case are as under.
2.1 On 28.05.2001, the original claimant - respondent No.1 with his wife (deceased) and his minor Hina @ Tinu were travelling in a truck bearing registration No. GJ-7-X-9188 by paying fare to go to Ishroli. The said truck over turned due to the rash and negligent driving of the driver and they were seriously injured, where his wife died in the Bardoli hospital, during the treatment of the injuries. After that an offence was registered with Bardoli police station being Criminal Case No. 72 of 2001.
3. Learned advocate for the appellant has submitted that the claimant along with his wife (deceased) and minor child were travelling in goods vehicle and they are not covered with the compensation and the Insurance Company may be exonerated from its liability.
3.1 Learned advocate for the appellant has submitted that the Tribunal has failed to appreciate that the deceased (claimant's wife) was found travelling in truck bearing registration No. GJ-7-X-9188, which was a good carriage. Thus, the deceased was found travelling in clear breach of the terms and condition of the Insurance Company.
3.2 It is submitted that Tribunal failed to appreciate that as Page 2 of 10 Downloaded on : Sun Apr 24 09:19:49 IST 2022 C/FA/4215/2008 JUDGMENT DATED: 12/01/2022 the deceased was found travelling as a passenger in the goods carriage, the Insurer was not liable to indemnify the insured (owner of the truck No. GJ-7-X-9188) as per the provision of Section 149(2) of the Motor Vehicles Act, 1988.
3.3 It is submitted that the Tribunal has materially erred in law in directing in Para-10 of the judgment the insurer to pay the compensation to the claimant and recover the same from the owner after finding in the same Para-10 that the Insurance Company was not liable as the passenger (the deceased) found travelling in a goods carriage.
3.4 It is also submitted that the Tribunal has erred in directing the Insurance Company to "pay and recover".
3.5 It is further submitted that the Tribunal failed to appreciate that the deceased was found as a mere gratuitous passenger in the goods carriage. The deceased could not have been termed as a third party vis-a-vis the owner and insurer of the truck. Therefore, the risk of the deceased was not required to be covered even under Section 147 of the Motor Vehicles Act, 1988.
4. I have heard Ms. Lilu K. Bhaya, learned advocate for the appellant - Insurance Company through the Video Conference. Though served, none appears on behalf of the respondents.
5. Having considered the material on record and the submissions made by the learned advocate for the appellant, this Court finds that the Tribunal has committed a grave error while passing the order more particularly in Para-10. On one Page 3 of 10 Downloaded on : Sun Apr 24 09:19:49 IST 2022 C/FA/4215/2008 JUDGMENT DATED: 12/01/2022 hand the Tribunal arrived at the conclusion in Para-10, which reads as under :
"10. And hence, as held in 2005 ACJ 721 (SC) DB, when passenger traveled in goods vehicle, the Insurance Company is not liable and the applicant is entitled to get the compensation from the owner of the vehicle, and in such circumstance, it is held that the Insurance Company is liable to pay and then recover from the owner.
The learned advocate Shri R.B. Soni contended that the insurance company has not examined his driver and hence presumption should go against him. Since, the evidence on record is specific that they traveled by paying fare and coming to Ishroli, and has not talked about any household luggage and more over there is no household found with the panchnama and moreover, the truck was loaded with metal and hence, from the above I believe that there is a breach of policy condition as the truck is a goods vehicle as evident from the policy."
6. However, while passing the final order in the operative portion, the Tribunal has directed the present appellant - Insurance Company to satisfy the impugned award and hold that the Insurance Company to pay the compensation. The given finding by the Tribunal is absolutely illegal and unjust and against the settled principles of law. It is an admitted fact that the claimants are travelling in a goods vehicle i.e. truck. It is deposed by the claimants that they are travelling in an offending vehicle as a passenger at the place of the Panchnama. The said offending vehicle was loaded with metal, the original claimant were boarded in the truck with their household luggage from Unai charrasta to Ishroli. The Tribunal has not properly appreciated the said fact and merely on the ground of non-examination of the driver of the offending vehicle, the impugned order is passed by the Tribunal, which is absolutely erroneous and illegal and the against the settle Page 4 of 10 Downloaded on : Sun Apr 24 09:19:49 IST 2022 C/FA/4215/2008 JUDGMENT DATED: 12/01/2022 legal principles of law.
7. In the case of United India Insurance Company Ltd. Vs. Minor Mahesh Kanubhai 2014 (2) GCD 1551 after issuing lengthy discussion on the legal proposition, this Court has observed that in the case of gratuitous passenger, it is a clear breach of the policy and therefore the risk is not covered and therefore the Insurance Company can not be held liable to pay.
8. In the case of National Insurance Company Ltd. Vs. Savitri Devi and others reported (2013) 11 SCC 554, the Hon'ble Apex Court has held in Paras- 10 & 11 as under :-
10. Dealing with similar circumstance, this Court has held in ACJ 2005 (2) 721 titled as "National Insurance Company Ltd. v. Bommithi Subbhayamma and others" as under: (SCC p.246, paras 9-11)
"9.... ....20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in 5 respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people."
10. The same view was reiterated in National Insurance Company Ltd. vs. Challa Bharathamma, 2004 ACJ 2094 (SC); Pramod Kumar Agrawal vs. Mushtari Begum, 2004 ACJ 1903 (SC) and also in National Insurance Company Ltd. vs. V. Chinnamma, 2004 ACJ 1909 (SC).
11. In view of the aforementioned authoritative pronouncements of this Court, the impugned judgment of the High Court cannot Page 5 of 10 Downloaded on : Sun Apr 24 09:19:49 IST 2022 C/FA/4215/2008 JUDGMENT DATED: 12/01/2022 be sustained which is set aside accordingly. This Appeal is allowed. We, however, make it clear that the claimants- respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Vehicle Accidents Claims Tribunal from the owner of the vehicle. No costs.
11. Similar view has been reiterated in (2009) 2 SCC 75, titled as "National Insurance Company Limited vs. Rattani and others", paragraph 14 and 15 of which are reproduced hereunder:
"14. The question as to whether burden of proof has been discharged by a party to the is or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.
15. As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the Appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose."
9. In the case of National Insurance Company Litd. Vs. Rattani and others reported in (2009) 2 SCC 75, the Hon'ble Apex Court has held in Paras- 14 to 19 as under :
"14. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.Page 6 of 10 Downloaded on : Sun Apr 24 09:19:49 IST 2022
C/FA/4215/2008 JUDGMENT DATED: 12/01/2022
15. As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose.
16. An admission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the insurance company was liable.
17. Reliance placed by the learned counsel on a decision of this Court in National Insurance Co. Ltd. v. Baljit Kaur and Others [(2004) 2 SCC 1] is misplaced. The question which arose for consideration therein was as to whether the words "any person" shall include a gratuitous passenger despite the amendment made in Section 147 of the Act by reason of the Motor Vehicles (Amendment) Act, 1994.
18. Following New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223], it was categorically held:
"20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people."
19. In National Insurance Co. Ltd. v. Cholleti Bharatamma and Others [(2008) 1 SCC 423], this Court categorically held:
"27. The learned counsel appearing for the respondent, submitted that from the aforementioned finding, it is evident that the respondent was travelling as the owner of the goods. We do Page 7 of 10 Downloaded on : Sun Apr 24 09:19:49 IST 2022 C/FA/4215/2008 JUDGMENT DATED: 12/01/2022 not think that the said submission is correct. PW 2, in his evidence, stated:
"I am doing tamarind business. I witnessed the accident which took place about 3 years back at about 6 a.m. at Borrampalem junction beyond Talluru. At the time of the accident I was in the crime lorry by the side of the driver. Myself and 6 others were carrying tamarind in that lorry belonging to us. We boarded the lorry along with our load of tamarind at Dharamavaram to go to Rajanagaram. We were selling the tamarind at Rajanagaram in retail by taking the tamarind there in our lorry from our village of Dharamavaram."
28. The Tribunal, therefore, correctly recorded that according to PW 2, he was travelling with his goods as owner thereof and not the deceased."
We, therefore, in the facts and circumstances of the case, have no hesitation to hold that the victims of the accidents were travelling in the truck as gratuitous passengers and in that view of the matter, the appellant herein was not liable to pay the amount of compensation to the claimants."
10. In the light the above discussion, this Court is of the view that the Tribunal was not justified in holding the appellant - Insurance Company to be jointly and severally liable to pay the compensation to the claimants. Once after arriving at the conclusion the Insurance Company is not liable.
11. The victim is gratuitous passenger, the contents of the FIR and the Panchnama is clearly transpires that the fact supported the case of the appellant. While passing the final order, in operative portion, the Tribunal has committed error by directing the Insurance Company to pay the compensation to the claimants.
12. Considering the provisions of Sub-sections (4) & (5) of Page 8 of 10 Downloaded on : Sun Apr 24 09:19:49 IST 2022 C/FA/4215/2008 JUDGMENT DATED: 12/01/2022 Section 149 of the Act, the impugned judgment is clearly violative of the said provision and therefore, the impugned judgment and award is required to be modified to the extent.
13. In view of the above ratio laid down by this Court as well as by the Hon'ble Apex Court in the cases of Minor Mahesh Kanubhai (supra), Savitra Devi (supra), Rattani and others (supra), United India Insurance Company Vs. Rajabhai Kanjibhai Harijan and others reported in 2019 (3) GLR 2039 and United India Insurance Company Ltd. Vs. Jinnatben Sidikbhai and others 2017 Law Suit (Guj.) 1221, the present appeal requires to be allowed and the order passed by the Motor Accident Claims Tribunal, Fast Track Court No.5, Surat dated 29.01.2008 in MACP No. 572 of 2001 is modified to the extent that the present appellant - Insurance company is hereby exonerated from its liability.
14. For the foregoing reasons, the present appeal succeeds and is hereby allowed to the extent that the impugned award passed by the Tribunal shall stand modified to the extent that instead of the opponent - Insurance Company, the driver and owner of the vehicle, shall be liable to pay the amount of compensation and the Insurance Company shall stand exonerated from such liability.
15. After perusal of the record, it reveals that the amount awarded by the Tribunal deposited by the present appellant - Insurance Company before the Tribunal, if any amount is disbursed to the claimants that will not be recovered by the Insurance Company from the original claimants but the Insurance Company can recover such amount from the owner Page 9 of 10 Downloaded on : Sun Apr 24 09:19:49 IST 2022 C/FA/4215/2008 JUDGMENT DATED: 12/01/2022 and driver of the offending vehicle. The amount which is lying in FDR will be returned to the present appellant along with interest accrued on it. However, it is open to the original claimant to recover the amount of compensation awarded by the Tribunal from the driver and owner of the offending vehicle. Pursuant to the interim order passed by this Court, if any amount, is lying in the Registry of this Court, that may be returned and refunded to the Insurance Company. The appropriate order of refund of the remaining amount lying in the Tribunal is to be passed after receiving the order of this Court.
16. Registry is directed to communicate this order to the concerned Tribunal through Fax, e-mail and /or any other suitable electronic mode.
Record and Proceedings be sent back to the concerned Tribunal forthwith.
(HEMANT M. PRACHCHHAK,J) SALIM/ Page 10 of 10 Downloaded on : Sun Apr 24 09:19:49 IST 2022