Gujarat High Court
Royal Sundaram Alliance Insurance ... vs Legal Heirs Of Decd. Dakshaben ... on 26 September, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2306/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2306 of 2016
With
FIRST APPEAL NO. 2307 of 2016
With
FIRST APPEAL NO. 2308 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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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 ?
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ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD....Appellant(s)
Versus
LEGAL HEIRS OF DECD. DAKSHABEN HITENDRABHAI SOLANKI &
3....Defendant(s)
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Appearance:
MR DAKSHESH MEHTA, ADVOCATE for the Appellant(s) No. 1
MR. RUSHANG D MEHTA, ADVOCATE for the Appellant(s) No. 1
MR ARVIND K THAKUR, ADVOCATE for the Defendant(s) No. 1.1 - 1.4
MR PALAK H THAKKAR, ADVOCATE for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 26/09/2017
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COMMON ORAL JUDGMENT
1. All these Appeals arise out of the common order passed under Section 140 of the Motor Vehicle Act, 1988 (hereinafter referred to as "the Act"). All the three appeals were heard together and are disposed of by this common judgment and order.
2. Being aggrieved and dissatisfied with the judgment and award rendered in MACP No. 374 of 2013; MACP No. 375 of 2013 and MACP No. 376 of 2013 passed by the Motor Accident Claims Tribunal (Aux.), Surat dated 27.7.2016, the appellant has preferred these Appeals under Section 173 of the Act.
3. In all the three matters, the Driver and owner of the tanker are not served, but tanker was insured by the respondent No.4 and the respondent No.4
-Insurance Company does not dispute its liability. In all the three cases, Mr. Dakshesh Mehta, learned Counsel appearing for the appellant seeks permission to delete respondents No. 2 and 3, which is granted. Respondents No.2 and 3 stands deleted.
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4. Heard Mr. Dakshesh Mehta, learned Counsel appearing with Mr. Rushang Mehta, learned Counsel for and on behalf of the appellant; Mr.Arvind K. Thakur, learned Counsel appearing for and on behalf of the respondents No. 1.1 to 1.4 and Mr. Palak Thakkar, learned Counsel appearing for the respondent No. 4.
5. The record of the case reveals the following facts :-
5.1 That, their sister-in-law viz., Dakshaben Hitendrabhai Solanki, the deceased was travelling in a Wagno-R car, bearing registration No. GJ-5-CL-
3446 and was proceeding on Ahmedabad-Bombay National Highway on 26.6.2011. When the car reached near Sadak Falia, at that time, one tanker bearing Registration No. MP-13-H-1095 came from the opposite side and dashed with the car, as a result of which Dakshaben Hitendrabhai Solanki sustained grievous injuries and succumbed to injuries. The deceased was sister- in- law of the claimants. The claimants filed different claim petitions and also filed applications for interim compensation under Section 140 of the Act .
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5.2 The appellant also relied upon documentary
evidences like FIR; Panchnama of the place of
accident; Inquest Panchnama; P.M. Note; R.C. Book and the Insurance policy of Wagon-R car. A copy of R.C. Book and Insurance policy of the tanker is also on the record. The Tribunal, after appreciation of evidence available on the record was pleased to allow the interim claim petitions by the impugned orders and being aggrieved by the same, the appellant has preferred the present Appeals.
6. Perused the record and proceedings of the Tribunal.
7. Mr. Dakshesh Mehta, learned Counsel appearing for the appellant has relied upon Section 140 of the Act and contended that the liability to pay "No fault liability " as provided under the said provision is upon the owner of vehicle. Mr. Mehta, learned Counsel for the appellant further contended that it is an admitted position that the owner and driver of the vehicle Wagon-R Car have expired in the very accident. However, no legal representatives have been joined and straightway, the appellant-insurance company is joined as party Page 4 of 9 HC-NIC Page 4 of 9 Created On Mon Oct 02 05:24:24 IST 2017 C/FA/2306/2016 JUDGMENT
-defendant in the main claim petitions filed under Section 166 of the Act. It is therefore contended that without impleading the owner of Wagon-R car, through their legal representatives, no liability can be fastened upon the appellant-Insurance company. Mr. Mehta, learned Counsel further contended that though such specific point was raised, learned Tribunal was discarded and passed the impugned awards under Section 140 of the Act. Mr. Mehta, learned Counsel further contended that Tribunal has treated it to be a simple suit between the claimant and insurer which is not permissible under the law, and therefore, the Appeals deserve to be allowed.
8. Mr. Arvind Thakur, learned Counsel appearing for the respondents No. 1.1 to 1.4 - original claimants submitted that the claimants are the legal representatives of the deceased, who are entitled to interim compensation under Section 140 of the Act, and both the insurance companies are jointly and severally liable to satisfy the same.
9. As against this, Mr. Palak Thakkar, learned Counsel appearing for the respondent No.4 has candidly submitted that it is a matter of fact that Page 5 of 9 HC-NIC Page 5 of 9 Created On Mon Oct 02 05:24:24 IST 2017 C/FA/2306/2016 JUDGMENT the owner of Wagon-R car which is insured by the appellant are not party in the main petition.
10. No other or further submissions have been made by learned Counsel appearing for the respective parties.
11. As far as entitlement of the respondents
-claimants to claim interim compensation of Rs. 50,000/- under Section 140 of the Act is concerned, cannot be disputed. However, it deserves to be noted that the original claimants themselves have filed main claim petition under Section 166 of the Act; as legal representatives of the persons who died due to accident. Incidentally, one of them was owner of the vehicle- Wagon-R and the rest of them, who expired in the accident were family members of the original claimants. From the record of the Tribunal, it clearly transpires that the owner of the vehicle involved i.e. Wagon-R are not made party though their legal representatives in the main petition. Considering the ratio laid down by the judgment of the Division Bench of this Court rendered in case of (The) Oriental Fire & General Insurance Company Vs. Aminbhai Pirmohomad Page 6 of 9 HC-NIC Page 6 of 9 Created On Mon Oct 02 05:24:24 IST 2017 C/FA/2306/2016 JUDGMENT Master & Ors. reported in 1986 GLH 463.
12. In light of the aforesaid, the fact remains that the owner of the vehicle insured by the appellant - Insurance company is not made party to the main petition. Considering the provision of Section 140 of the Act, therefore, the insurance company of the said vehicle cannot be saddled with liability. However, as third party the claimants can claim the same from Insurance Company of tanker i.e. respondent No. 4 herein.
13. It is further clarified that these observations are made only for the limited purpose of these Appeals i.e. for considering the issue under Section 140 of the Act, and the same shall not be applied to the main petitions which are pending under Section 166 of the Act. This Court has not expressed any opinion on liability issue of the Insurance companies; including that of the appellant.
14. It is also evident from the reply, which was filed by the appellant -insurance company at Exh. 15, that the appellant had specifically contended before the Tribunal that the statutory liability has Page 7 of 9 HC-NIC Page 7 of 9 Created On Mon Oct 02 05:24:24 IST 2017 C/FA/2306/2016 JUDGMENT been imposed from the owner and the same cannot be extended from the insurer to indemnify the owner.
15. It is further provided that all the parties are at liberty to take all available contentions. Any observation made in the impugned judgment and award as well as this judgment shall not apply as res judicata .
16. In light of the aforesaid observations, these Appeals are allowed. The impugned judgment and award stands modified to the extent that the appellant is not liable to satisfy interim award passed under Section 140 of the Act. However, other parties and more particularly, the Insurance company of the tanker involved in the accident - the respondent No.4 herein is liable to satisfy the interim award. The Appeals are allowed only on the short ground. The Tribunal is directed to refund the amount of Rs. 25,000/- along with interest if any to the appellant i.e. the amount deposited by the appellant and respondent No.4 -Insurance Company is directed to deposit further Rs. 25,000/- with the Tribunal within a period of six weeks from today.
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Parties to bear their own costs.
17. Record and proceedings be transmitted to the tribunal forthwith.
(R.M.CHHAYA, J.) BINA Page 9 of 9 HC-NIC Page 9 of 9 Created On Mon Oct 02 05:24:24 IST 2017