Gujarat High Court
Farukbhai Ganibhai Rohitwala vs Ajaykumar Subhakaranji Dugar - Prop Of ... on 20 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/3166/2012 JUDGMENT DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3166 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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FARUKBHAI GANIBHAI ROHITWALA
Versus
AJAYKUMAR SUBHAKARANJI DUGAR - PROP OF OM INDUSTRIES CO &
ANR.
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/02/2024
ORAL JUDGMENT
1. The challenge has been given to the judgment of dismissal by MACT (Main), Ahmedabad Rural decided Page 1 of 13 Downloaded on : Thu Feb 22 20:40:55 IST 2024 NEUTRAL CITATION C/FA/3166/2012 JUDGMENT DATED: 20/02/2024 undefined on 16.6.2012 in MACP No.1634/2010.
2. Mr. Paresh Darji, learned advocate for the appellant-claimant submitted that the petition was filed under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") and the same has been dismissed on the ground of self-negligence of the insured rickshaw driver. Advocate Mr. Darji has relied upon the policy with the support of the proposition of law as laid down in the case of Valiben Laxmanbhai Thakore (Koli) Wd/o. Late Laxmanbhai Ramsinghbhai Thakore (Koli) & Ors. v. Kandla Dock Labour Board & Anr., 2021 (4) GLH 77 and also the judgment in the case of United India Insurance Company Ltd. v. Sunil Kumar & Anr., 2018 ACJ 1 to state that once the insurance company accepts the premium for the employees, then it cannot deny the liability to pay the amount and further stated that Section 163A of the Act does not open for the insurance company to raise the defence/plea of negligence of the victim.
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3. Countering the arguments, learned advocate Mr. Maulik Shelat for the insurance company submitted that Section 163A of the Act lays down certain restrictions for the defence to be raised by the insurance company. However, the negligence of the driver himself who is the victim requires consideration in accordance to the facts of the case.
4. In the case of Sunil Kumar (supra), it is held that the claim proceedings are under Section 163A of the Act, permitting the insurance company to raise the defence of negligence will bring the proceedings under Section 163A at par with the proceedings under Section 166 which would not only be self-contradictory, but also defeat the very legislative intention.
5. In the case of Valiben Laxmanbhai Thakore (Koli) (supra), the Full Bench of this Court, in paragraph-10, observed as under:-
"10. Chapter XI of the Act covers the subject 'Insurance of Motor Vehicles Against Third Party Risks' under section 146(1) of which no person Page 3 of 13 Downloaded on : Thu Feb 22 20:40:55 IST 2024 NEUTRAL CITATION C/FA/3166/2012 JUDGMENT DATED: 20/02/2024 undefined shall use a motor vehicle in public unless there is a valid policy of insurance which complies with the requirements of the chapter. Section 147 provides for mandatory requirements of such insurance policy. It deserves to be noted that as per the provisions of Section 147 r/w 149 of the Act, the risks which are covered are statutorily provided, however, parties may enter into a contract by which the insurer agrees to cover additional risks by charging/payment of additional payment. It also deserves to be noted that the policy has a clause which defines the limits of liability in respect of death or bodily injury to any person caused by or arising out of the use of the motor vehicle under section 11(i) of the terms and conditions of the policy. In proviso
(b) to section II (1), which reads as under:
"Except so far as is necessary to meet the requirements of the Motor Vehicles Act, the company shall not be liable in respect of death of or bodily injury to any person in the employment of the insured arising out of and in the course of such employment"
Thus, the insurance policy would cover only the person or classes of persons specified in the policy. Thus, when the Insurance Company accepts the additional premium for legal liability to paid Driver and / or Conductor and / or Cleaner, employed in connection with the operation of the insured vehicle, by accepting additional premium as per IMT 28, the Insurance Company shall Page 4 of 13 Downloaded on : Thu Feb 22 20:40:55 IST 2024 NEUTRAL CITATION C/FA/3166/2012 JUDGMENT DATED: 20/02/2024 undefined entail liability of indemnifying and legal liability is created towards paid Driver and / or Conductor and/ or Cleaner. In case when such additional premium is paid, the policy includes following clause:
"In consideration of an additional premium of notwithstanding anything to the contrary contained in the policy it is hereby understood and agreed that the insurer shall indemnify the insured against the insured's legal liability under the Employees Compensation Act 1923 the Fatal Accidents Act, 1855 or at Common Law and subsequent amendments of these Acts prior to the date of this Endorsement in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured herein and will in addition be responsible for all costs and expenses incurred with its written consent."
The aforesaid clause therefore, clearly prescribes that it covers the insured against the insured's legal liability under the Employee's Compensation Act, 1923, the Fatal Accidents Act, 1855 or at Common Law. It may be noted that statutory policy would cover liability under the Employee's Compensation Act, 1923 as far as Driver is concerned. By accepting additional premium as per the IMT 28, the same added liability under Common Law and Fatal Accidents Act. Motor accidents liability predates the imposition of this Page 5 of 13 Downloaded on : Thu Feb 22 20:40:55 IST 2024 NEUTRAL CITATION C/FA/3166/2012 JUDGMENT DATED: 20/02/2024 undefined liability under any form of statute and such liability would be part of Common Law till the time it was made a statutory liability."
6. By referring to various judgments and the provisions of the M.V. Act, the Full Bench of this Court has held regarding the liability of the Insurance Company, when additional premium is accepted in following terms:
"13. Thus, when the owner of a vehicle pay additional premium and same is accepted by the Insurance Company, liability of the Insurance Company gets extended under the Motor Vehicles Act. Section 147 of the Act clearly prescribes for statutory liability to cover risk of paid Driver and Conductor under the Insurance Policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the Insurance Company. Thus, the risk of paid Driver and Conductor would be covered under the Insurance Policy. Only when the additional premium is not paid, liability would be as per the Employees Compensation Act, 1923 and in such cases, compensation would be computed as prescribed under the Act which is limited to the extent provided under provisions of the Act. However, when owner pays additional premium to cover the legal liability of his paid driver and conductor to the Insurance Company, as such, the Insurance Company is enlarging the scope for unlimited liability for Page 6 of 13 Downloaded on : Thu Feb 22 20:40:55 IST 2024 NEUTRAL CITATION C/FA/3166/2012 JUDGMENT DATED: 20/02/2024 undefined payment of compensation, when additional premium is accepted. The liability of the Insurance Company gets extended and it has no right to raise issue of self negligence or otherwise of the such class of the driver of the Insured vehicle. By accepting additional premium as per the IMT 28, the Insurance Company expressed its willingness to extend its liability under the Clause of Legal Liability to the Paid driver and conductor as envisaged under Section 147 of the Act. Thus, in our opinion, Insurance Company has no legal right to avoid its legal liability under the indemnity clause arising from the contract of insurance towards the insured - owner of such classes of vehicles."
7. The proposition of law, as laid down in Valiben's case (supra), clarifies that on payment of additional premium by the owner, the liability of the owner shifts upon the insurance company, and, when owners pays additional premium to cover legal liability of his paid driver and conductor to the insurance company, the insurance company is enlarging the scope for unlimited liability for the payment of compensation, when additional premium is accepted.
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8. Here in the present matter, the policy shows that the premium has been accepted for the employees who are two in number and when the negligence aspect has not to be considered of the victim under Section 163A of the Act, the amount would be required to be granted following the judgment in the case of National Insurance Company Limited v. Gurumallamma & Anr., (2009) 16 SCC 43 since in injury case, multiplier would be applicable. Hence, when the multiplier system becomes applicable in the present case when the injured who suffered injury on 16.3.2010 at about 5.00 p.m., and was driving the rickshaw of opponent no.1 and to save the dog on the road, who had suddenly come on the road, the rickshaw of opponent no.1 bearing registration no. GJ-1 AY- 6985 turned turtle and sustained injuries on his right hand and has stated that he was serving with the opponent no.1 and was earning Rs.3,200/- per month. It is stated that it is amputation of right hand and he had sustained crush injuries and had taken treatment in V.S. Hospital as an indoor patient from 16.3.2010 to 20.4.2010 and his right Page 8 of 13 Downloaded on : Thu Feb 22 20:40:55 IST 2024 NEUTRAL CITATION C/FA/3166/2012 JUDGMENT DATED: 20/02/2024 undefined hand was amputed and thereafter, the claimant was again admitted as an indoor patient in Karnavati Hospital from 2.8.2011 to 8.8.2011 and since the hand has been amputed, he would not be in a position to continue his work as a driver. Hence, though the claimant had consented for assessing the physical disability for 30% of the body as a whole, this Court considers that the functional disability is required to be assessed in terms of proposition laid down in the case of Raj Kumar v. Ajay Kumar & Anr., (2011) 1 SCC 343 and considering the peculiar facts and circumstances of the present case and victim of amputation and the vocation of the applicant as being a driver, the functional disability is required to be assessed in the matter. The relevant documents on record disclose the traumatic amputation below elbow suffered by the claimant and the injury certificate dated 12.6.2010 issued by Sheth Vadilal Sarabhai General Hospital has referred the following injuries:-
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NEUTRAL CITATION C/FA/3166/2012 JUDGMENT DATED: 20/02/2024 undefined "RTA at Vejalpur at around 5.30 PM on 16/3/10 C/o pain, swelling, deformity, open bleeding wound - over Rt.forearm ODP: C/o pain, swelling, deformity, open bleeding - over Rt.forearm Open wound with cut flexon, tendons & radial artery +nt over dorsal & volar aspect Past H/o, Per H/o - NAD T/P/R/BP - (N)/92/18/130/70 RS,CVS,CNS,GIT: NAD.
Tenderness, Swelling, Deformity, Open bleeding wound +nt over.Rt.forearm DP/DM - absent Distal surface - cold CO - Ab T - cold SPO2 - 92%"
9. Thus, in light of the certificate dated 12.6.2010, functional disability would require just consideration which is to be assessed in terms of vocation of the claimant.
10. Further, it requires to be noted that the note below the schedule under Section 163A of the Act specifies that in case where the injuries lead to Page 10 of 13 Downloaded on : Thu Feb 22 20:40:55 IST 2024 NEUTRAL CITATION C/FA/3166/2012 JUDGMENT DATED: 20/02/2024 undefined result in permanent total disablement/permanent partial disablement, then percentage of loss of earning capacity shall be as per Schedule-I under the Workmen's Compensation Act, 1923 (the Employee's Compensation Act, 1923). Schedule-I to Section 2(1) and (4) of the Employee's Compensation Act, 1923, in Part-II notes the percentage of loss of earning capacity to the description of injury and accordingly, Part-II specifies the loss of a hand or of the thumb and four fingers of one hand or amputation from below tip of olecranon which would be 60%.
11. In view of the above, 60% functional disability to the monthly income of Rs.3,200/- would be Rs.1,920/- with the yearly loss which would come to Rs.23,040/- and applying multiplier of 15 as per the schedule attached to Section 163A of the Act to the age limit of above 40 and not exceeding 45, future loss of income would come to Rs.3,45,600/-.
12. Actual loss is to be assessed for a period of 52 weeks in accordance to the hospitalization and the Page 11 of 13 Downloaded on : Thu Feb 22 20:40:55 IST 2024 NEUTRAL CITATION C/FA/3166/2012 JUDGMENT DATED: 20/02/2024 undefined fact that the claimant would have taken time to recover looking to the injury sustained by him and hence, 52 weeks is assessed for non-working period and hence, actual loss of income is considered as Rs.38,400/-. Under the head of pain, shock and suffering, by following the schedule, Rs.5,000/- for grievous injuries is made applicable. In the present matter, medical bill to the maximum limit of Rs.15,000/- is granted as per the note below the schedule.
13. In the result, the claimant would be entitled to the amount of compensation of Rs.4,04,000/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The said amount is directed to be deposited within eight weeks from the date of receipt of writ of this Court. Let total amount be paid to the claimant on verification of the identity.
14. The impugned judgment and award be modified accordingly. The appeal is partly allowed. Page 12 of 13 Downloaded on : Thu Feb 22 20:40:55 IST 2024
NEUTRAL CITATION C/FA/3166/2012 JUDGMENT DATED: 20/02/2024 undefined Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 13 of 13 Downloaded on : Thu Feb 22 20:40:55 IST 2024