Gujarat High Court
Aminaben Natthubhai Chopda vs Ashwinkumar Utaumal Rajai on 27 July, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/FA/664/2018 JUDGMENT DATED: 27/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 664 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
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 No
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 ?
==========================================================
AMINABEN NATTHUBHAI CHOPDA & 4 other(s)
Versus
ASHWINKUMAR UTAUMAL RAJAI & 1 other(s)
==========================================================
Appearance:
for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 2,3,4,5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/07/2022
ORAL JUDGMENT
1. Mr. Mohsin Hakim, learned advocate for the appellant submitted that the challenge has been given to the judgment and award in case of Motor Accident Claim Petition (MACP) No. Page 1 of 6 Downloaded on : Fri Jul 29 20:35:30 IST 2022 C/FA/664/2018 JUDGMENT DATED: 27/07/2022 260/1996 passed by the Motor Accident Claims Tribunal (Auxi), Ahmedabad (Rural) on 14.9.2017 whereby the learned Tribunal had dismissed the petition under Section 163A of the Motor Vehicles Act, 1988 (in brief 'M.V. Act').
2. Mr. Hakim submitted that as per the incident on 2.10.1995, the deceased was driving a Truck bearing Registration No. GRX- 4079 and was returning from Nasik towards Ahmedabad after loading tomatoes and when the deceased reached near Saputara Road, Gujarat, he lost control over the vehicle and fell into gorge. As a result thereof, the driver and cleaner both died on the spot on the place of accident. Mr. Hakim submitted that there is an admitted aspect that the deceased was a driver of the truck and the learned tribunal erred in not considering the Insurance Policy, which covered the risk of the driver of the vehicle. He further submitted that now the Insurance Company cannot raise the issue of self-negligence or otherwise of such class of driver of a insured vehicle when the Insurance Company has accepted an additional premium and thereby the Insurance Company is enlarging the scope of unlimited liability for the payment of compensation when additional payment is accepted. Mr. Hakim submitted that the said issue is already covered by judgment of Page 2 of 6 Downloaded on : Fri Jul 29 20:35:30 IST 2022 C/FA/664/2018 JUDGMENT DATED: 27/07/2022 the Full Bench of this Court, which was under reference of Division Bench and, therefore, now the claimant would be entitled for compensation of money in accordance with the structured schedule, which is attached to Section 163(A) of the M.V. Act.
3. Mr. Majmudar, learned advocate for the Insurance Company submitted that the claimants have not proved the income of the deceased. Mere statement by the owner would not absolve him of producing the evidence. At the same time, Mr. Majmudar submitted that there cannot be any denial to the premium acceptance in view of the Policy at Exh-33.
4. From the Policy at Exh-33, in the liability Section, an amount of Rs.90/- is extracted as additional premium, collected for one driver, one cleaner and four coolies.
5. In the case of Valiben Laxmanbhai Thakore (Koli) Wd/o. Late Laxmanbhai Ramsingbhai Thakore (Koli) versus Kandla Dock Labour Board, reported in 2021 (4) GLH 77, wherein Paras -13 and 15 read as under:
"13. Thus, when the owner of a vehicle pay additional premium and same is accepted by the Insurance Company, liability of the Insurance Page 3 of 6 Downloaded on : Fri Jul 29 20:35:30 IST 2022 C/FA/664/2018 JUDGMENT DATED: 27/07/2022 Company gets extended under the Motor Vehicles Act. Section 147 of the Act clearly prescribes for statutory liability to cover risk of paid Driver and Conductor under the Insurance Policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the Insurance Company. Thus, the risk of paid Driver and Conductor would be covered under the Insurance Policy. Only when the additional premium is not paid, liability would be as per the Employees Compensation Act, 1923 and in such cases, compensation would be computed as prescribed under the Act which is limited to the extent provided under provisions of the Act. However, when owner pays additional premium to cover the legal liability of his paid driver and conductor to the Insurance Company, as such, the Insurance Company is enlarging the scope for unlimited liability for payment of compensation, when additional premium is accepted. The liability of the Insurance Company gets extended and it has no right to raise issue of self negligence or otherwise of the such class of the driver of the Insured vehicle. By accepting additional premium as per the IMT 28, the Insurance Company expressed its willingness to extend its liability under the Clause of Legal Liability to the Paid driver and conductor as envisaged under Section 147 of the Act. Thus, in our opinion, Insurance Company has no legal right to avoid its legal liability under the indemnity clause arising from the contract of insurance towards the insured - owner of such classes of vehicles.
15. In our opinion, by accepting additional premium, the Insurance Company indemnifies the owners for paid Driver and / or Conductor and risk of Driver / Conductor is covered under it. Upon death or injury caused to the paid Driver and / or Conductor, the Insurance Company would be liable to satisfy such claim irrespective of the self negligence. Thus, the observations made by the Division Bench in the case of Saberabibi Hisammiya Umarvmiya & Anr (supra) lays down the correct law. Reference is thus, answered accordingly".Page 4 of 6 Downloaded on : Fri Jul 29 20:35:30 IST 2022
C/FA/664/2018 JUDGMENT DATED: 27/07/2022
6. Considering the proposition laid down in Valiben's case (Supra), the claimant would be entitled for the compensation as per the structure formula even in case of self-negligence of the driver when the Insurance Company has accepted additional premium for the risk of driver. The income of the deceased was assessed by the learned Tribunal as notional income of Rs.1500/-.
However, the admitted fact is that the deceased claimant was driver on the Truck which was loaded with tomatoes. Considering the year of date of accident as as 2.10.1995, this Court considers it appropriate to grant Rs.2,000/- in absence of any documentary evidence regarding income. Thus, going by the structure formula and considering the age as 35 years, the claimant would be entitled to Rs.3,84,000/- and one-third of the amount is deducted as money towards maintenance of the deceased, had he been alive. Thus, deducting Rs.1,28,000/-, the amount the claimant would be entitled would be Rs.2,56,000/- + considering the funeral expenses, as per the structure Schedule, as Rs.2,000/-, and towards loss of estate as Rs.2,500/-, thus, in total, the claimant would be entitled for Rs.2,60,500/-. Page 5 of 6 Downloaded on : Fri Jul 29 20:35:30 IST 2022
C/FA/664/2018 JUDGMENT DATED: 27/07/2022
7. Mr. Mazmudar, learned advocate submitted that the claim petition was totally rejected. Hence, considering the present status of the economy of the Country and the bank's rate of interest on Fixed Deposit (FD), reasonable rate of interest as 7.5% at the most should be considered by this Court.
8. The said submission requires consideration since the prevailing rate of interest would be applicable in the matter. Hence, this Court considers to grant 7.5% interest on the amount granted, as Rs.2,60,500/- from the date of the petition, till the amount realized.
(GITA GOPI,J) SAJ GEORGE Page 6 of 6 Downloaded on : Fri Jul 29 20:35:30 IST 2022