Gujarat High Court
United India Insurance Company Ltd vs Dineshbhai Mavjibhai Chavda (Decd. ... on 6 October, 2022
C/FA/1406/2006 JUDGMENT DATED: 06/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1406 of 2006
With
R/FIRST APPEAL NO. 1407 of 2006
With
R/FIRST APPEAL NO. 1408 of 2006
With
R/FIRST APPEAL NO. 1409 of 2006
With
R/FIRST APPEAL NO. 1410 of 2006
With
R/FIRST APPEAL NO. 1411 of 2006
With
R/FIRST APPEAL NO. 3813 of 2006
With
R/FIRST APPEAL NO. 3814 of 2006
With
R/FIRST APPEAL NO. 3815 of 2006
With
R/FIRST APPEAL NO. 3816 of 2006
With
R/FIRST APPEAL NO. 3817 of 2006
With
R/FIRST APPEAL NO. 3818 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
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 ?
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C/FA/1406/2006 JUDGMENT DATED: 06/10/2022
UNITED INDIA INSURANCE COMPANY LTD.
Versus
DINESHBHAI MAVJIBHAI CHAVDA (DECD. THRO LEGAL HEIRS & REP) &
3 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR HS MUNSHAW(495) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1.1,1.2,1.3,1.4,2,3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 06/10/2022
COMMON ORAL JUDGMENT
1. The present group of First Appeals arise from the common judgment and award dated 12.12.2005 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot and therefore, they are heard analogously and are being disposed of by this common judgment.
2. Feeling aggrieved and dissatisfied with the judgment and award dated 12.12.2005 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot (hereinafter referred to as "the Tribunal"), in M.A.C.P. Nos.549/2003, 544/2003, 545/2003, 546/2003, 547/2003 and 548/2003, the appellant - United India Insurance Company Ltd. (Original Opponent No.2) has filed first group of appeals i.e. First Appeal Nos.1406 of 2006 to 1411 of 2006, whereby, the appellant - United India Insurance Company Ltd. is held liable 35% Page 2 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 negligent in the alleged accident and the Oriental Insurance Company is held liable 65% negligent for the said accident. The second group of First Appeals i.e. First Appeal Nos.3813 of 2006 to 3818 of 2006 are filed by the appellant - Oriental Insurance Co. Ltd. (Original Opponent No.4), challenging the amount of quantum awarded by the Tribunal vide impugned judgment and award dated 12.12.2005.
3. Brief facts of the present case are that, on 12.05.2003, deceased Dineshbhai Mavjibhai and injured Dayabhai Kanabhai in the company of other four deceased were proceeding in a Matador bearing registration No.GJ-3-U-9099 to attend the marriage ceremony at village Upleta. That all the aforesaid deceased as well as injured boarded the Matador carrying goods which was being driven by driver Rameshbhai Kanabhai. When the said Matador reached a village of Dhoraji, a that time, truck bearing registration No.GJ-10-U-6350, containing lime, came with full speed in a rash and negligent manner, went on its wrong side and dashed with the said Matador. In the result, five persons died, but unfortunate injured fellow sustained grievous and serious injuries over his persons.
4. Heard Mr.Maulik Shelat, the learned counsel appearing for the appellant - United India Page 3 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 Insurance Company Ltd. in group of First Appeal Nos.1406 of 2006 to 1411 of 2006, Mr.H.S. Munshaw, the learned counsel appearing for the appellant - Oriental Insurance Company Ltd. in group of First Appeal Nos.3813 of 2006 to 3818 of 2006 and Mr.Hemang Shah, the learned counsel appearing for the original claimants in all the First Appeals.
5. So far as the First Appeal Nos.1406 of 2006 to 1411 of 2006 are concerned, Mr.Maulik Shetal, the learned counsel appearing for the appellant - United India Insurance Company Ltd. submitted that the liability fasten by the Tribunal upon the appellant - Insurance Company at 35% is against the settled legal principles and in the present case it is against reported decision of the Apex Court in case of National Insurance Company Vs. Baljit Kaur reported in 2004 (2) SCC 1 and other decisions. He further submitted that the impugned judgment and award is erroneous so far as the liability fasten upon the present appellant - Insurance Company is concerned and against the facts of the present case. Since all the deceased and injured were travelling as a gratuitous passengers in the goods vehicle as a barati to attend the marriage function, the appellant - Insurance company is not liable and other ground enumerated in the memo of appeal, the present group of appeals is filed by the Page 4 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 appellant - United India Insurance Company Ltd.
5.1 So far as the second group of appeals i.e. First Appeal Nos.3813 of 2006 to 3818 of 2006 is concerned, Mr.H.S. Munshaw, the learned counsel appearing for the appellant - Oriental Insurance Company Ltd. submitted that the quantum of award passed by the Tribunal is not just and proper. He submitted that only because truck is a bigger vehicle than the matador, the Tribunal has held driver of the truck liable as 65% negligent for the alleged accident, which is not proper. He further submitted that the Tribunal has erred in awarding excessive multiplier and erred in calculating the income of the deceased.
6. As against that, Mr.Hemang Shah, the learned counsel appearing for the original claimants has supported the impugned judgment and award passed by the Tribunal and submitted that the award passed by the Tribunal is just and proper and no interference is required to be called for.
7. I have considered the averments made in the appeals, submissions made by the learned counsel appearing for both the sides and considered the facts of the case and perused the record and proceedings. I have also considered the panchnama of the place of accident, the FIR and other relevant papers from the Record and Proceedings.
Page 5 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 7.1 The main contention raised by the appellant - Insurance Company in the first group of appeals i.e. First Appeal Nos.1406 of 2006 to 1411 of 2006 that all the claimants were travelling in the goods carriage as gratuitous passengers and they were going to attend the marriage function as barati, considering the deposition of the driver of the offending vehicle involved in the present first group of appeals at Exh.-70, the fact is clearly revealed that the claimants were travelling as gratuitous passengers and therefore, the first group of appeals i.e. First Appeal Nos.1406 of 2006 to 1411 of 2006 are required to be considered and the same are required to be allowed in part and the impugned judgment and award passed by the Tribunal is required to be modified to the extent considering the decision of this Court in case of Oriental Insurance Co. Ltd. Vs. Meraman Dana Harijan & 6 Others rendered in First Appeal No.1736 of 2007. The identical facts and issue is now no more res integra and the same is decided considering the judgment of this Court as well as other decisions of the Apex Court. The relevant observations made by this Court in First Appeal No.1736 of 2007 are as under :
"10. At this stage, it is relevant to take into account the observations made by Hon'ble Apex Court Page 6 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 in case of Asha Rani (supra) in paragraph Nos. 14, 15, 18, 19, 20, 22, 23, 24, 25, 27, 28 and 29 as under:
"14. Before adverting to the pointed issue, we may notice the definitions of "goods vehicles", "public service vehicle" and "stage carriage"
and "transport vehicle" occurring in Sections 2(8), 2(25), 2(29) and 2(33) of 1939 Act, which are as under :-
"2(8) "goods vehicle" means any motor vehicle constructed or adopted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers;"
"(25) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage, and stage carriage;"
"(29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey;"Page 7 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022
C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 (33) "transport vehicle" means a public service vehicle or a goods vehicle;"(emphasis supplied)
15. Sections 2(14), 2(35), 2(40) and 2(47) of 1988 Act define "goods carriage", "public service vehicle", "stage carriage" and "transport vehicle" in the following terms :-
"2(14) "good carriage" any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;"
"2(35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi cab, a motor cab, contract carriage, and stage carriage;"
"2(40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey;"
"2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;" (emphasis supplied) Page 8 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022
18. Liability has been defined in Section 145(c) as under - "'liability', wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under Section 140;
19. Section 146 specifies the necessity for insurance against third party risk. In terms thereof an owner of a motor vehicle is statutorily enjoined to have a policy of insurance complying with the requirements of the said chapter before he uses or causes or allows any other person to use a motor vehicle in public.
20. Section 147 deals with requirements of policies and limits of liability. Proviso appended thereto, however, makes an exception to the main provision which reads thus :-
"Provided that a policy shall not be required -
(i) to cover liability in respect of the death, arising out of an in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee -Page 9 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022
C/FA/1406/2006 JUDGMENT DATED: 06/10/2022
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability."
21. xxx xxx xxx
22. Thus, it may be noticed that so far as employees of the owner of the motor vehicle are concerned, an insurance policy was not required to be taken in relation to their liability other than arising in terms of the provisions of the Workmen's Compensation Act, 1923. On the other hand, proviso (ii) appended to Section 95 of 1939 Act, enjoined a statutory liability upon the owner of the vehicle to take out an insurance policy to cover the liability in respect of a person who was travelling in a vehicle pursuant to a contract of employment. The Legislature has consciously not inserted the said provision in 1988 Act.
23. The applicability of decision of this Court in Mallawwa v. Oriental Insurance Company Ltd & Ors. (1999) 1 SCC 403 in this case must be considered keeping that aspect in view. Section Page 10 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 2(35) of 1988 Act does not include passengers in goods carriage whereas Section 2(25) of 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of the "goods vehicle" in 1939 Act and "goods carriage" in 1988 Act is significant. By reason of the change in the definitions of the terminology, the Legislature intended that a goods vehicle could not carry any passenger, as the words "in addition to passengers" occurring in the definition of goods vehicle in 1939 Act were omitted. Furthermore, it categorically states that 'goods carriage' would mean a motor vehicle constructed or adapted for use "solely for the carriage of goods". Carrying of passengers in a 'goods carriage', thus, is not contemplated under 1988 Act.
24. We have further noticed that Section 147 of 1988 Act prescribing the requirements of an insurance policy does not contain a provision similar to clause (ii) of the proviso appended to Section 95 of 1939 Act. The decisions of this Court in Mallawwa's case (supra) must be held to have been rendered having regard to the aforementioned provisions.
25. Section 147 of 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended Page 11 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage'.
26. In view of the changes in the relevant provisions in 1988 Act vis-a-vis 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. 'a third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.
27. Furthermore, sub-clauses (i) of clause (b) of subsection (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle Page 12 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 caused by or arising out of the use of the vehicle in a public place.
28. An owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. But if the ratio of this Court's decision in New India Assurance Company v. Satpal Singh & Ors. (2000) 1 SCC 237 is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy wherefor even no premium is required to be paid.
29. We may consider the matter from another angle. Section 149(2) of the 1988 Act enables the insurers to raise defences against the claim of the claimants. In terms of clause (c) of sub-section (2) of Section 149 of the Act one of the defences which is available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. Such a statutory defence available to the insurer would be obliterated in view of the decision of this Court in Satpal Singh case."
11. Considering all the above referred facts and the Page 13 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 ratio laid down by the Hon'ble Apex Court in case of Asha Rani (supra) and this Court in First Appeal No.4550 of 2009 and allied matters and also considering the material available on record of the appeal, present First Appeal deserves to be allowed and the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (AUX) Fast Track Court No.4, Gadhidham-Kutchchh in M.A.C.P. No.441 of 1999 requires to be modified.
12. Accordingly, the present appeal is hereby allowed. The impugned judgment and award passed by the learned Motor Accident Claims Tribunal (AUX) Fast Track Court No.4, Gadhidham-Kutchchh in M.A.C.P. No.441 of 1999 is hereby modified to that extent.
13. The present appellant - insurance company is hereby exonerated from the liability fasten upon it."
7.2 In view of the above, the first group of appeals i.e. First Appeal Nos.1406 of 2006 to 1411 of 2006 are hereby allowed in toto. The impugned judgment and award dated 12.12.2005 passed by the Tribunal is hereby modified to that extent.
7.3 The appellant - United India Insurance Company Ltd. is exonerated from the liability fasten upon it by the Tribunal.
Page 14 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 7.4 The amount deposited by the present appellant - Insurance Company lying in FDR with Tribunal be refunded to the appellant - Insurance Company through R.T.G.S. after verifying the account details of the insurance company. Necessary details of account of appellant - Insurance Company be submitted before Tribunal.
7.5 The amount, if any, is lying with the registry of this Court is also to be transmitted to the Tribunal, then paid to the appellant - Insurance Company.
8. So far as the second group of appeals i.e. First Appeal Nos.3813 of 2006 to 3818 of 2006 is concerned, the same are required to be dismissed in view of the decision of the Apex Court in case of Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 and in case of National Insurance Company Limited Vs. Pranay Sethi and others, reported in (2017) 16 SCC 680 by awarding just and adequate compensation to the claimants. Though the original claimants have not preferred any appeal so far as the enhancement of the compensation awarded by the Tribunal is concerned, but however, relying upon the decision of the Division Bench of this Court in case of Gujarat State Road Transport Corporation Vs. Manbai Hirji Page 15 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 Buchiya Wd/o Late Shri Hirji Pancha Buchiya rendered in First Appeal No.663 of 2019, that even while considering the appeal of the insurance company, just and adequate compensation can be awarded in view of the reported decision of the Apex Court, and, therefore, in light of the decision of this Court in First Appeal No.663 of 2019, the impugned judgment and award passed by the Tribunal is hereby modified to that extent. All the claimants, though they have not preferred any enhancement appeal, are entitled to get further enhanced amount of compensation in view of the observations made by this Court in First Appeal No.663 of 2019, more particularly, in paragraph no.8, which reads as as under :
"8.0. We find that the Tribunal has not granted any parental and filial consortium to the original claimants. Following the judgment of the Hon'ble Supreme Court in the case of United India Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076, the respondent nos.2 and 3 are minor children of the deceased and respondent no.5 is the mother of the deceased would be entitled to consortium to the tune of 40,000/- each. Having come to the aforesaid conclusion, therefore, the respondents- original claimants would be entitled to additional compensation of Rs.1,20,000/- as parental and filial consortium. The rest of the impugned judgment and award remains unaltered. Though the respondents - original Page 16 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 claimants have not preferred any appeal on principle of just compensation, the respondents- claimants would be entitled to additional compensation of Rs.1,20,000/- over and above the compensation granted by the Tribunal. The appellant Gujarat State Road Transport Corporation shall deposit the additional amount of Rs.1,20,000/- over and above the compensation granted by the Tribunal with 9% interest and proportionate costs from the date of application till its realization with the Tribunal within a period of 8 weeks from the receipt of the order. Present appeal is disposed of accordingly."
8.1 It this stage, it is appropriate to refer to the decision of the Apex Court in case of Khenyei Vs. New India Assurance Company Limited, reported in (2015) 9 SCC 273, as it is a case of composite negligency and they have liability of 65%. The claimants are entitled to recover 100% amount from the other Insurance Company and they have to satisfy the impugned judgment and award passed by the Tribunal and the enhanced amount as decided by this Court.
8.2 Considering all the above facts and the ratio laid down by the Apex Court, the second set of appeals i.e. First Appeal Nos.3813 of 2006 to 3818 of 2006 are hereby dismissed. But, in light of the decision of the Apex Court as above, the claimants of First Appeal No.3813 of 2006 are Page 17 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 entitled to get enhanced amount of compensation under different heads as under :
Particulars Amount Loss of Dependency Rs.5,99,760/-
(Rs.2800/- + Rs.1120/- (40% rise) = Rs.3920/- - Rs.980 (1/4th deduction) = Rs.2940/- x 12 = Rs.35280 x 17) Loss of estate Rs.15,000/-
Funeral Expenses Rs.15,000/- Loss of consortium (4 dependents) Rs.1,60,000/- Total Rs.7,89,760/- Compensation awarded (-)Rs.7,14,800/- Amount to be enhanced Rs.74,960/- 8.3 Accordingly, the claimants of First Appeal No.3813 of 2006 are entitled to get enhanced amount of compensation of Rs.74,960/-
which shall carry interest at the rate of 6% per annum, from the date of application till realization of the amount.
8.4 The appellant - Oriental Insurance Company shall deposit the enhanced amount of compensation with 6% interest as early as possible within an outer limit of eight weeks from the date of receipt of certified copy of this order. Additionally, the appellant - Oriental Insurance Company is further directed to deposit the awarded amount so ordered to be Page 18 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 refunded back to the United India Insurance Company Ltd., in each case.
8.5 The apportionment and order for disbursement as made by the Tribunal in the operative portion of the order shall hold good for the additional amount of compensation.
8.6 After deposit of the additional amount of compensation, the same shall be disbursed in favour of the claimant through RTGS, after proper verification. The bank account details shall be furnished by the learned advocate for the claimants to the Nazir Department of the Court concerned.
8.7 So far as the second group of appeals is concerned, the appellant - Oriental Insurance Company is entitled to recover 35% of the original awarded amount and the additional amount of compensation from the owner of the Matador involved in the accident. It is open for them to recover the same by way of filing appropriate proceedings. Likewise, it is also open for the United India Insurance Company to recover the amount which was withdrawn by the claimants in each case from the owner-insured of its Matador, by way of execution.
9. Record and proceedings be sent back to the Page 19 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022 C/FA/1406/2006 JUDGMENT DATED: 06/10/2022 concerned Tribunal forthwith. Pending civil applications, if any, shall stand disposed of accordingly.
(HEMANT M. PRACHCHHAK,J) Dolly Page 20 of 20 Downloaded on : Sun Dec 25 03:24:29 IST 2022