Gujarat High Court
Patel Kailasben Upendrabhai vs Natubhai Madhabhai Solanki on 13 July, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2852/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2852 of 2017
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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PATEL KAILASBEN UPENDRABHAI
Versus
NATUBHAI MADHABHAI SOLANKI
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Appearance:
MR J N BAROT(7730) for the PETITIONER(s) No. 1,2,3,4
MR UMANG H OZA(2440) for the PETITIONER(s) No. 1,2,3,4
MR SUNIL B PARIKH(582) for the RESPONDENT(s) No. 2
RULE SERVED(64) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 18/07/2018
ORAL JUDGMENT
1. By this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), the appellants have challenged the judgment and award dated 25.10.2016 passed by the MACT (Aux.), Mehsana at Visnagar in MACP no.474 of 2012.
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2. The facts as per the record of the appeal reveal that one Upendra Nanalal Patel was travelling in a tempo bearing registration no.GJ2 Y4629 loaded with grapes to be delivered at Nadiad with his driver and when the tempo reached SaputaraShamgaman road, Nr. Ghat of Malegaon Toll, the break of the tempo failed and the steering got jammed as a result of which, the tempo turned turtle. The deceased fell down and received serious injuries and ultimately, succumbed. Record indicates that the deceased was the owner of the tempo and was aged about 55 years. A complaint came to be filed with the police at Exh.24. Inquest Panchnama was also prepared at Exh.26 and Panchnama of the accident was also prepared at Exh.25. The appellants are the original claimants i.e. heirs of the deceased. The original claimants filed the claim petition under Section 166 of the Act and claimed compensation of Rs.6 lacs.
3. The original claimants adduced oral evidence at Exh.21 and also produced the aforementioned documentary evidence as well as other evidence, such as, R.C. book of the tempo, driving licence Exh.28, R.C. Book at Exh.29, incometax returns of 4 years being Exhs.39 to 44 and claimed that the deceased was hale and Page 2 of 10 C/FA/2852/2017 JUDGMENT hearty and was earning Rs.7,000/ per month and thus, claimed the compensation. On notice being issued, the insurance Company appeared before the Tribunal and filed a written statement at Exh.17 and contended that the respondent insurance Company cannot be held liable and that the Tribunal cannot pass an order of compensation and contended that the deceased was owner of the tempo and he is not included in the insurance policy and therefore, the respondent insurance Company is not liable to pay compensation. Relying upon the decisions of the Hon'ble Apex Court, it was contended by the insurance Company that the deceased was not a third party and as per the policy, only third party risk was covered. It is contended that as provided under Section 147 of the Act, the respondent insurance Company does not owe any liability towards injuries suffered by the deceased who was the owner of the offending vehicle. It is contended that as the insurance policy was a statutory policy, it did not cover the risk of death or bodily injury to an owner and therefore, the claim petition is not maintainable. The Tribunal, by the impugned judgment and award, came to the conclusion that the accident occurred due to rash and negligent driving on the part of the driver of the offending vehicle. However, considering Page 3 of 10 C/FA/2852/2017 JUDGMENT the proposition that as a matter of fact, the deceased was himself owner of the offending vehicle, the risk of his death is not covered by the policy and therefore, was pleased to reject the claim petition. Being aggrieved by the said judgment and award, the original claimants have preferred this appeal.
4. Heard Mr. Umang H. Oza, learned advocate for the appellants and Mr. Sunil Parikh, learned advocate for respondent no.2. Though served, no one appears for respondent no.1.
5. Considering the issue involved in this appeal and with consent of the learned advocates appearing for the respective parties, this appeal is taken up for final disposal forthwith.
6. The learned advocates appearing for the respective parties have also produced photocopies of the relevant evidence which were adduced before the Tribunal for perusal of this Court.
7. Mr. Umang Oza, learned advocate for the appellants contended that the Tribunal has wrongly came to the conclusion that the policy is an affected policy and that the insurance Company owes no liability towards injuries Page 4 of 10 C/FA/2852/2017 JUDGMENT suffered by the deceased only because he was the owner of the vehicle. It is contended that the Tribunal has seriously erred in rejecting the claim petition without assigning any reasons. It is also contended that the policy also covered the legal liability of the passengers other than the driver (8 persons) and therefore, the respondent insurance Company has also charged special premium for the same. It is contended that thus, by not appreciating the aforesaid facts, gross injustice has been meted out to the claimants by not believing the said policy. On the aforesaid grounds, it is contended that the appeal deserves to be allowed as prayed for and the appropriate compensation needs to be awarded to the appellants original claimants.
8. Per contra, Mr. Sunil Parikh, learned advocate for respondent no.2 has supported the impugned judgment and award. It is contended that the Tribunal has committed no error much less any error on facts of the case and has rightly appreciated the evidence on record and has rightly interpreted the policy. It is further contended that it is an admitted position that the deceased was the owner of the offending vehicle and the Tribunal has rightly came to the conclusion that the insurance policy was a Page 5 of 10 C/FA/2852/2017 JUDGMENT statutory policy and hence, it did not cover the risk of death or bodily injury of an owner. It is further contended that the deceased cannot be termed as third party and considering the provisions of the Act, the Tribunal has rightly rejected the claim petition as the respondent insurance Company is not liable to indemnify the owner of the offending vehicle. Mr. Parikh relied upon the judgments of the Hon'ble Apex Court reported in (2004) 8 SCC 553, 2007 ACJ 818, 2007 ACJ 721, (2013) 14 SCC 719, 2017 ACJ 1800 and 2017 (2) GLR 1100 to buttress his argument. Mr. Parikh, on the aforesaid basis, contended that the appeal is meritless and the same deserves to be dismissed.
9. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
10. Upon considering the submissions made and on considering the reasonings given by the Tribunal and on perusal of the relevant evidence, it is an admitted position that the deceased was the owner of the offending vehicle i.e. tempo bearing registration no. GJ2 Y4629. It is evident from the impugned judgment and award that the Tribunal has threadbare considered the aforesaid aspect and Page 6 of 10 C/FA/2852/2017 JUDGMENT the reasonings of the Tribunal are based on binding decisions of the judgments rendered by the Hon'ble Apex Court in view of the fact that the deceased was the owner of the offending vehicle the insurance policy did not cover liability towards personal injury to the insured and as provided under Section 147 of the Act, risk for death or bodily injury to the owner of the vehicle is not covered. The Hon'ble Apex Court in the case of Dhanraj Vs. New India Assurance Co. Ltd. & Anr., (2004) 8 SCC 553 has observed thus: "8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.
9. In the case of Oriental Insurance Co. Ltd. Vs. Sunita Rathi & Ors. [1998 ACJ 121] it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party Page 7 of 10 C/FA/2852/2017 JUDGMENT the Insurance Company has no liability also.
10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4,989/ paid under the heading "Own damage" is for covering liability towards personal injury. Under the heading "Own damage", the words "premium on vehicle and non electrical accessories" appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance."
11. The Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, 2007 ACJ 721 has taken a similar view.
12. At this juncture, it would also be appropriate to refer to the judgment of the Hon'ble Apex Court in National India Assurance Company Limited Vs. Prabha Devi & Ors., (2013) 14 SCC 719, wherein considering the judgment of the Hon'ble Apex Court in the case of Dhanraj (supra), in similar facts and circumstances of the case, has held that since the deceased himself was the insurer as well as owner of the vehicle, no amount of compensation could Page 8 of 10 C/FA/2852/2017 JUDGMENT have been awarded to the original claimants. This Court in the case of Iffco Tokio General Insurance Company Ltd. Vs. Deepakbhai Bhikhabhai Patel, 2017 (2) GLR 1100 has, after considering the plethora of judgments of the Hon'ble Apex Court, observed thus: "8. Taking into consideration the rival submissions made by learned advocates for both the sides, ratio laid down in the above referred decisions by the Honourable Apex Court in light of the peculiar facts and circumstances of the case, indisputably, the claimant himself stands as registered owner and he himself was driving the offending vehicle as well as he himself has preferred the claim petition against his own insurance Company claiming compensation for injuries sustained by him and resultant damages suffered by him. Indisputably, the claimant is not the third party. He is insured and the respondent insurance Company is the insurer.
Chapter XI of the Act makes the provision for insurance of the motor vehicle against the third party risk and the statute has made it compulsory for securing the risk of the third party and in the case on hand, if the injury or damage is suffered by the third party, then the third party can claim and maintain the claim petition before the Motor Accident Claims Tribunal constituted under the said Chapter."
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13. In the case on hand also, it is an admitted position that the deceased was the owner of the offending vehicle bearing tempo no. GJ2 Y4629 and therefore, the deceased cannot be considered to be a third party.
14. The contention raised by the learned advocate for the appellant that the personal accident coverage was also there in the policy also; however, on that ground also, the claim petition cannot be maintained by the appellants in form of a claim petition under Section 166 of the Act. As held by this Court, in Iffco Tokio General Insurance Company Ltd. (supra), such liability, if any, arises by virtue of the terms of the contract and in case if there is any breach of the same, the party to the contract can avail legal remedy either before the competent Civil Court or before the Consumer Forum.
15. Consequently, the judgment and award of the Tribunal dated 25.10.2016 deserves to be confirmed. The appeal therefore fails and is hereby dismissed. However, there shall be no order as to costs.
(R.M.CHHAYA, J) MAULIK R. PANDYA Page 10 of 10