Gujarat High Court
United India Insurance Co. Ltd vs Minaben Bhupendrabhai Patel & 3 on 24 November, 2015
Author: M.R. Shah
Bench: M.R. Shah
C/FA/2835/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2835 of 2005
TO
FIRST APPEAL NO. 2840 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
======================================
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 ?
======================================
UNITED INDIA INSURANCE CO. LTD....Appellant(s)
Versus
MINABEN BHUPENDRABHAI PATEL & 3....Defendant(s)
======================================
Appearance:
MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1
MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1 - 2
RULE SERVED for the Defendant(s) No. 3
SERVED BY AFFIX.-(R) for the Defendant(s) No. 4
======================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 24/11/2015
ORAL JUDGMENT
Page 1 of 5
HC-NIC Page 1 of 5 Created On Tue Dec 01 00:01:53 IST 2015 C/FA/2835/2005 JUDGMENT [1.0] As common question of law and facts arise in these group of appeals, all these appeals are decided and disposed of by this common judgment and order.
[2.0] Feeling aggrieved and dissatisfied with the impugned common judgment and award passed by the learned Motor Accidents Claim Tribunal (Main), Valsad (hereinafter referred to as "the tribunal") in MACP Nos.1294/2002 to 1299/2002 by which the learned tribunal has though held that as all the deceased passengers where traveling in a Tempo in breach of terms of the policy and as such they were gratuitous passengers the Insurance Company is not liable to pay the compensation and / or indemnify the owner, the learned tribunal has directed the Insurance Company of the Tempo, involved in the accident, to first pay / deposit the compensation to the original claimants and then to recover from the original owner, the appellant-Insurance Company of the Tempo involved in the accident has preferred the present First Appeals.
[3.0] Though served, nobody appears on behalf of the original claimants as well as the owner of the Tempo involved in the accident. The present Appeals being of the year 2005 are therefore decided ex-parte.
[4.0] Heard Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company. Perused the impugned common judgment and award passed by the learned tribunal. The issue involved in the present Appeals is, whether despite having held by the learned tribunal that the Insurance Page 2 of 5 HC-NIC Page 2 of 5 Created On Tue Dec 01 00:01:53 IST 2015 C/FA/2835/2005 JUDGMENT Company is not liable to pay the compensation as the deceased passengers were traveling in a goods vehicle and they were gratuitous passengers, the learned tribunal is justified in passing an order of paying and recovering the amount of compensation i.e. to first deposit and pay compensation and thereafter to recover from the owner of the Tempo involved in the accident? Shri Mazmudar, learned advocate appearing on behalf of the appellant has submitted that the issue involved in the present group of Appeals is now not res integra in view of the decision of this Court in the case of United India Insurance Company Ltd Vs. Lilaben w/o deceased Bhikhbhai Premjibhai Kathariaya and Ors. rendered in First Appeal No.2121/2008 and the decision of this Court in the case of New India Assurance Co. Ltd Vs. Saliyabai Abderehman Jat & Ors rendered in First Appeal No.2291/2003. He has submitted that in the aforesaid decisions it is specifically held by this Court that such an order to pay and then recover cannot be passed and, therefore, it is requested to allow the present Appeals.
[5.0] Heard Shri Mazmudar, learned advocate appearing on behalf of the Insurance Company. Though served, nobody appears on behalf of any of the respondents, including the owner of the Tempo involved in the accident. At the outset, it is required to be noted and it is not in dispute that the deceased were traveling in a goods vehicle as gratuitous passengers and they were part of the marriage party. It is also required to be noted that as such the learned tribunal has already specifically observed in paragraph 20 that the Insurance Company is not liable to pay the compensation for the death of the gratuitous passengers traveling in the goods Page 3 of 5 HC-NIC Page 3 of 5 Created On Tue Dec 01 00:01:53 IST 2015 C/FA/2835/2005 JUDGMENT vehicle. However, thereafter after holding so, the learned tribunal has passed an order to pay and recover i.e. to pay the compensation to the original claimants and thereafter to recover the same from the owner. Identical question came to be considered by this Court in the case of Lilaben w/o Deceased Bhikhabhai Premjibhai Kathariya and Ors. (Supra) as well as in the case of Saliyabai Abderehman Jat and Ors (Supra) and after considering various decisions of the Hon'ble Supreme Court it is held that in such a situation no order for pay and recover may be passed.
[6.0] In view of the above and for the reasons stated hereinabove, the impugned common judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same are against the appellant-Insurance Company. Under the circumstances, all the Appeals succeed. The impugned common judgment and award passed by the learned tribunal in MACP No.1294/2002 to 1299/2002 holding the appellant-Insurance Company to pay the compensation for the death of the respective deceased passengers, more particularly, the order of first pay to the original claimants and then recover the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeals are allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned common judgment and award passed by the learned tribunal, the appellant- Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the Page 4 of 5 HC-NIC Page 4 of 5 Created On Tue Dec 01 00:01:53 IST 2015 C/FA/2835/2005 JUDGMENT appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original claimants by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.
(M.R. SHAH, J.) Siji Page 5 of 5 HC-NIC Page 5 of 5 Created On Tue Dec 01 00:01:53 IST 2015