Gujarat High Court
Oriental Insurance Co Ltd (Hub) vs Laxmiben Lakhabhai Gadhavi & 6 on 12 January, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/FA/458/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 458 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
ORIENTAL INSURANCE CO LTD (HUB)....Appellant(s)
Versus
LAXMIBEN LAKHABHAI GADHAVI & 6....Defendant(s)
==========================================================
Appearance:
MR RITURAJ M MEENA, ADVOCATE for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1 - 7
==========================================================
CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 12/01/2017
ORAL JUDGMENT
The appellant -Insurance company has questioned its liability to pay compensation to Page 1 of 10 HC-NIC Page 1 of 10 Created On Sat Aug 12 09:42:16 IST 2017 C/FA/458/2011 JUDGMENT respondents no. 1 to 5 under the judgment and award dated 25.11.2009 passed by the Motor Accident Claims Tribunal (Auxiliary) FTC, 2 Bhavnagar in MACP No. 34/1997.
2. The facts are lying in a narrow compass :
Bavabhai Lakhabhai and his brother Aapabhai Lakhabhai Gadvi who was the claimant in MACP No. 35/97 were travelling on a tempo on 5.1.97, bearing registration No. G.J. JT 5549 along with goods at about 11:30 am and in the opposite direction as respondent no. 6 herein, was driving the tempo at a high speed in a rash and negligent manner got dashed with the aforementioned tempo as a result of which it turned turtle. Bavabhai suffered serious injuries and died. The offending tempo was insured with the appellant-Insurance Company at the relevant point of time. Respondents no. 1 to 5 claimed to be the legal heirs and representatives preferred MACP no. 34/97 to recover the compensation of Rs 5 lakhs from respondents no. 6 to 7 and the appellant for the death of of Bavabhai Lakabhai in the accident. The Tribunal has vide common award rendered in claim petition No. 34/97 and 35/97, partly allowed the claim petition No. 34/97 qua respondent no.1 and directed the appellant and respondent no. 6 and 7 to pay compensation of Rs Page 2 of 10 HC-NIC Page 2 of 10 Created On Sat Aug 12 09:42:16 IST 2017 C/FA/458/2011 JUDGMENT 1,64,000/- with 7.5% interest with proportionate costs to respondent no.1 jointly and severally. The Insurance Company is challenging its liability to pay the compensation to respondent no.1 under the impugned award in this appeal.
3. I have heard Mr. Rituraj Meena, learned advocate for the appellant. Despite service of notice, there is no appearance on behalf of respondents.
4. Mr. Meena, learned advocate for the appellant urges that it is very clear from Exh. 44 that the offending tempo was a goods vehicle and referring to exh. 37 FIR, submits that more than 10 persons were travelling in the offending vehicle and therefore, the deceased were gratuitious passenger. The Tribunal therefore, ought not to have saddled the appellant-Insurance company with the liability of payment of the compensation to respondent no.1. He, therefore, urges that the appeal may be allowed and the appellant -Insurance company may be exonerated from its liability to pay the compensation. He further submits that the deceased was admittedly unmarried person and respondent no.1 being his mother, the Tribunal ought to have deducted 50% towards personal expenses as has been held by the Supreme Court in the case of Sarla Verma (Smt. ) and ors.
Page 3 of 10
HC-NIC Page 3 of 10 Created On Sat Aug 12 09:42:16 IST 2017
C/FA/458/2011 JUDGMENT
Vs Delhi Transport Corporation and Anr. (2009) 6 SCC 121.
5. It emerges from the impugned judgment and award and the record that respondents no. 1 to 5 original claimants had preferred claim petition interalia contending that the deceased Bavabhai Lakhabhai and his brother Apabhai Lakhabhai were travelling in the offending tempo in the capacity of the owner of the goods. The case of the appellant
-Insurance company that the deceased gratuitous person were in the goods vehicle and it was not liable to pay compensation to the claimants. The Tribunal while dealing with the contentions has recorded the finding in the impugned judgment and award that the deceased was an agriculturist and therefore, it is obvious that they would use old wooden logs for their household purpose and therefore, it cannot be disputed that the deceased was not the owner of the such goods. Accordingly the Tribunal believed that the deceased was driving in the offending vehicle as the owner of the goods. From the perusal of the record and the finding recorded by the Tribunal it has to be vulnerable on more than one count. The original claimants have produced Exh. 37 FIR in respect of the accident. It emerges from the FIR that more than 10 persons were traveling in the tempo Page 4 of 10 HC-NIC Page 4 of 10 Created On Sat Aug 12 09:42:16 IST 2017 C/FA/458/2011 JUDGMENT when it met with an accident. It is true that panchanama of place of accident reveals that the wooden log and other material were found scattered on the road but that itself would not be enough to record the finding that it was the deceased and his brother Apabhai who were the owner of such goods more particularly when more than 10 persons were travelling in the tempo on the fateful day. The evidence, occular and documentary evidence made available on the record by the parties is required to be appreciated in a holistic manner and it cannot be considered in a pick and choose manner to pass a particular order. It appears that the learned Tribunal has only considered the fact that the deceased was an agriculturist by profession and normally an agriculturist used wooden log for their household purpose and therefore when such wooden log was found at the place of accident ignoring the fact more than 10 persons were travelling in the offending tempo, presumed that these wooden logs and other agricultural produce found at the place of accident was of the ownership of the deceased and his brother and therefore, according to the Tribunal they were travelling in their capacity as the owner of the goods, to fasten the liability of payment of compensation on the appellant Insurance company.
Page 5 of 10
HC-NIC Page 5 of 10 Created On Sat Aug 12 09:42:16 IST 2017
C/FA/458/2011 JUDGMENT
6. The Supreme Court in the case of New India Assurance Co. Ltd. Vs Asha Rani and Ors (2003) 2 SCC 223 has held as under in para 9 :
"9. In Satpal's case (supra), the Court assumed that the provisions of Section 95(1) of Motor Vehicles Act, 1939 are identical with Section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amended Act of 1994 is examined, particularly Section 46 of Act 6 of 1991 by which expression 'injury to any person' in the original Act stood substituted by the expression 'injury to any person including owner of the goods or his authorised representative carried in the vehicle' the conclusion is irresistible that prior to the aforesaid Amendment Act of 1994, even if Page 6 of 10 HC-NIC Page 6 of 10 Created On Sat Aug 12 09:42:16 IST 2017 C/FA/458/2011 JUDGMENT widest interpretation is given to the expression 'to any person' it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of clause 46 also states that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the Insurance Policy. It is no doubt true that sometimes the legislature amends the law by way of amplification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression 'including owner of the goods or his authorised representative carried in the vehicle which was added to the pre-existed expression 'injury to any person' is either clarificatory or amplification of the pre- existing statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a Page 7 of 10 HC-NIC Page 7 of 10 Created On Sat Aug 12 09:42:16 IST 2017 C/FA/458/2011 JUDGMENT goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The judgment of this Court in Satpal's case, therefore must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury."
7. The Supreme Court subsequently followed it in the case of Oriental Insurance Company Ltd. Vs Brij Mohan and ors (2007) 7 SCC 56.
8. The aforesaid proposition of law expounded by the Supreme Court makes it vividly clear that Insurance Company would not be liable to pay compensation in case where the victim was a gratuitous passenger in the goods vehicle. I am, therefore, of the view that the Tribunabl ought not to Page 8 of 10 HC-NIC Page 8 of 10 Created On Sat Aug 12 09:42:16 IST 2017 C/FA/458/2011 JUDGMENT have fastened the liability of payment of compensation on the appellant-Insurance company as the deceased was gratuitous passenger in the offending vehicle. The impugned judgment and award of the Tribunal, therefore is required to be entertained to a limited extent of exonerating appellant-Insurance company from its liability of payment of compensation to the claimants.
9. For the foregoing reasons, the appeal succeeds and is hereby allowed. The impugned judgment and award dated 25.11.2009 passed by learned MACP(Aux) in MACP 34/97 is hereby quashed and set aside qua the appellant-Insurance company and the appellant Insurance company is exonerated from its liability to pay the compensation to the claimants under the impugned award.
10. In compliance of order dated 24.2.2011 passed in Civil Application No. 1978/2011, the appellant- Insurance company has deposited the entire awarded compensation with the Tribunal out of which 30% is permitted to be withdrawn by the original claimants by order dated 25.4.2011. The original claimants were also permitted to receive periodical interest on the remaining 70% of the compensation which was Page 9 of 10 HC-NIC Page 9 of 10 Created On Sat Aug 12 09:42:16 IST 2017 C/FA/458/2011 JUDGMENT ordered to be invested in the fixed deposit receipt. The Tribunal is therefore, directed to refund the said 70% which is lying in the FDR to the appellant. The appellant is at liberty to recover 30% of the awarded compensation which is disbursed in favour of the original claimants from respondent from respondent nos 6 and 7 driver and owner of the offending vehicle in accordance with law. No costs.
11. R& P be remitted back to the trial court forthwith.
(A.G.URAIZEE,J) MARY Page 10 of 10 HC-NIC Page 10 of 10 Created On Sat Aug 12 09:42:16 IST 2017