Gujarat High Court
National Insurance Co. Ltd vs Laxmansing Raising Patel Thr'Heirs on 27 November, 2024
NEUTRAL CITATION
C/FA/3119/2006 ORDER DATED: 27/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3119 of 2006
With
R/FIRST APPEAL NO. 3123 of 2006
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NATIONAL INSURANCE CO. LTD
Versus
LAXMANSING RAISING PATEL THR'HEIRS & ORS.
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Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
MR DHRUV THAKKAR FOR MR MUKUND M DESAI(286) for the
Defendant(s) No. 1.1,1.2
RULE SERVED for the Defendant(s) No. 1.3,1.4,2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/11/2024
ORAL ORDER
1. The present First Appeals, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - original Insurance Company being aggrieved and dissatisfied with the judgment and award dated 26.04.2005 passed by the Motor Accident Claims Tribunal, Godhra in MACP No. 2532 of 2001 and M.A.C.P. No.2535 of 2001.
2. Brief facts of the case are as under:
2.1 On 24.05.2001, at about 10.30 am, deceased Laxmansingh and other Ratanbhai with other claimants were going for labour work in the truck No.GTK-2247 driven by opponent no.1 in rash and negligent manner and when the truck reached accidental place, left Tyre of truck got separated and due to negligence on Page 1 of 8 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:28:16 IST 2024 NEUTRAL CITATION C/FA/3119/2006 ORDER DATED: 27/11/2024 undefined the part of driver, said vehicle reached in deep ditch. As a result, three persons died and other sustained serious injuries.
Therefore, claimants filed claim petitions.
3. Short contention is raised by learned advocate Mr.Parikh for the insurance company that deceased Laxmansinh was travelling in goods vehicle at the time of road accident. He would submit that vehicle was meant for the purpose of carrying goods and not passengers and hence, there is statutory breach of terms and conditions of policy. It is submitted that this issue has been raised before the learned Tribunal, however, learned Tribunal has not touched this issue and decide the same in accordance with law. Therefore, the appeal deserves consideration and submitted to allow the appeal.
4. Learned advocate Mr.Dhruv Thakkar for learned advocate Mr.Desai for the claimants referring to judgment of this Court in the case of Oriental Insurance Co. Ltd. v/s. Kavadiben wd/o Raghuveerinh [First Appeal No.2726 of 2013] would submit that it is proved that deceased was travelling in goods vehicle and therefore, impugned order may be modified to the extent of pay and recovery as deceased was third party. Owner of the arrayed vehicle is served, but did not remain present.
5. I have heard learned advocates for both the sides. Perused Record and Proceedings of the case. Noticeably, driver of the offending vehicle did not step into witness box. But looking to panchanam and FIR, even pleading of the claim petition, it is clear that deceased was travelling in goods vehicle in capacity of Page 2 of 8 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:28:16 IST 2024 NEUTRAL CITATION C/FA/3119/2006 ORDER DATED: 27/11/2024 undefined passenger, but it is not clear whether he was travelling with goods nor not. Deceased is third party. Manifest object of MV Act is to put back victim of the road accident to pre-accident stage as far as money can do. Amount of compensation should not be limited and that it would be pitilessness. Principle of just and fair compensation is core of section 168 of MV Act. Manifest object of section 168 of Motor Vehicle Act is to grant just and fair compensation to the victim of road accident.
6. Apt to note that the Motor Vehicle Act, 1988 is a beneficial piece of Legislation. The concept of just and fair compensation is integral and seminal to the MV Act. The compensation to be awarded under the principle of just and fair compensation to the injured of the road accident or the legal representative/s of the deceased person is based on the principle of fairness, reasonableness and equability. Anguish of the heart or for mental turbulence being consequential result of the road accident cannot be actually compensated, but the quint essentiality lies in adopting holistic and pragmatic view to the computation of the compensation for the loss sustained, which is to be in the realm of realistic approximation. Although exact or perfect arithmetical calculation of compensation for reparation of the loss arrived from the road accident is almost impossible. The Tribunal is bestowed with duty to make an endevour to award just compensation regardless of the amount claimed by the claimants. The determination of the quantum of compensation therefore, must be liberal and not niggardly since the law values life and limb in a free country in generous scale. Needless to state that money may be awarded, so that something tangible Page 3 of 8 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:28:16 IST 2024 NEUTRAL CITATION C/FA/3119/2006 ORDER DATED: 27/11/2024 undefined may be procured to reach something else of the like nature, which has been destroyed or lost, but money cannot renew physical frame that has been battered and shattered being a result of the road accident. Yet Tribunal to endavour to bring back victim to stage of pre-road accident as far as possible Thus, the award must be reasonable and cannot be assessed with moderation though it cannot at the same time be pity and what could be granted must be just, fair and equitable compensation.
7. Evidence on record indicates that deceased and other claimants were travelling as labourer along with his belongings. In the fact situation, Co-ordinate Bench of this Court in the case of United India Insurance Co. Ltd. v/s. Fatmaben Ismailbhai and Ors. [First Appeal No.1915 of 2006], refereed judgment of Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796 and Shivaraj V/s Rajendra and another reported in 2018 ACJ 2755 to pass order of pay and recover. The issue raised in this appeals are governed by said judgments. Out of above judgments, let refer judgment in the case of Shamanna v. Oriental Insurance Co. Ltd., (2018) 9 SCC 650, it is held in paragraphs 12 to 14 as under:
"12. The above reference in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National Insurance Co. Ltd. v.
Parvathneni, (2018) 9 SCC 657] by the three-Judge Bench keeping the questions of law open to be decided in an appropriate case.
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13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment [Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.
14. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan [Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 13 SCC 224 : 2005 SCC (Cri) 148] wherein this Court held that :
(SCC p. 226, para 8) "8. ... For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."Page 5 of 8 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:28:16 IST 2024
NEUTRAL CITATION C/FA/3119/2006 ORDER DATED: 27/11/2024 undefined
8. With profit I may refer judgment in the case of Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796, it is held in paragraphs 15 to 16 as under:
"15. This question also fell for consideration recently in National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 :
(2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment [Saju P. Paul v.
National Insurance Co., 2011 SCC OnLine Ker 3791 : 2012 ACJ 1852] of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".
16. R.M. Lodha, J. (as his Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under : (Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] , SCC pp. 52 & 55) "20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).
26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was Page 6 of 8 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:28:16 IST 2024 NEUTRAL CITATION C/FA/3119/2006 ORDER DATED: 27/11/2024 undefined followed in Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 [National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41, 55 (footnote 14)] ] and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] ."
9. Deceased is third party. He was travelling in goods vehicle. Thus it is case to follow law laid down in the case of Shamanna (supra) and Manuara Khatun (supra) to pass order pay and recover.
10. In view of above discussion, the first appeals are partly allowed. The insurance company though is ordered to be exonerated is fasten liability to pay compensation at first Page 7 of 8 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:28:16 IST 2024 NEUTRAL CITATION C/FA/3119/2006 ORDER DATED: 27/11/2024 undefined instance and recover the same from owner of the vehicle on the basis of this judgment. Insurance company is exonerated from liability to pay compensation, however, liability of owner of vehicle to pay compensation is maintained. The insurance company at the first instance shall pay and deposit amount of compensation including interest and cost before the learned Tribunal in each claim petition and it shall be entitled to recover the same from the owner of the vehicle on the strength of this judgment by executing it.
11. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants after fixing apportionment, if not already fixed, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
12. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
13. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) SATISH Page 8 of 8 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:28:16 IST 2024