Gujarat High Court
National Insurance Company, Regional ... vs Virsinhbhai Devabhai Bajaniya on 7 March, 2025
NEUTRAL CITATION
C/FA/3619/2011 JUDGMENT DATED: 07/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3619 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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NATIONAL INSURANCE COMPANY, REGIONAL OFFICE AT LEGAL
DEPT.,
Versus
VIRSINHBHAI DEVABHAI BAJANIYA & ORS.
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR HARSHIT S TOLIA(2708) for the Defendant(s) No. 1,2,4,5
MR PARTH S TOLIA(5617) for the Defendant(s) No. 1,2,4,5
RULE SERVED for the Defendant(s) No. 3,6
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 07/03/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Dakshesh Mehta for the appellant and learned advocate Mr. Harshit Tolia for the respondent Nos.1, 2, 4 and 5. Though served, none appears for and on behalf of respondent Nos.3 and 6. Perused the record.
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2. The facts in brief of the case are as under:
* On 8.5.2007, at around 3.00 pm, deceased alongwith other passengers were travelling in mini truck no.GJ-1VV-8110. When the said vehicle reached near Kandla-Radhanpur National Highway near village Chitrod, because of a rash and negligent driving of the driver of the said mini truck, vehicle got turtled and deceased Paluben V. Bajania sustained serious injuries and succumbed.
* The complaint was registered by one of the co- passenger of the offending vehicle. Charge-sheet was also filed against the driver of the vehicle. The heirs of deceased filed Claim Petition being MACP No.155 of 2007 before learned Motor Accident Claims Tribunal (Aux.), Patan for a compensation of Rs.4,14,500/- with interest @ 21% p.a. from the date of application till realisation against the opponents. The claim petition was resisted by insurance company - respondent No.2 by filing Written Page 2 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Mar 17 2025 Downloaded on : Fri Mar 21 23:08:18 IST 2025 NEUTRAL CITATION C/FA/3619/2011 JUDGMENT DATED: 07/03/2025 undefined Statement at Exh.23 and contested the claim petition. Claimants submitted FIR, Panchnama and other documents in support of the claim petition. Exh.18 is examination in chief filed by claimant No.1. * After considering the evidence, learned Tribunal partly allowed the claim petition by directing opponents to pay an amount of Rs.3,17,500/- to the claimants with interest @ 7.5% p.a. from the date of application till realisation.
* Being aggrieved and dissatisfied with the impugned judgment and award, the insurance company - appellant has filed the appeal.
3. Learned advocate for the appellant - insurance company has submitted that present appeal is filed on the limited question of breach of terms and conditions of the policy. The deceased alongwith other passengers were travelling in a goods vehicle at the Page 3 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Mar 17 2025 Downloaded on : Fri Mar 21 23:08:18 IST 2025 NEUTRAL CITATION C/FA/3619/2011 JUDGMENT DATED: 07/03/2025 undefined time of accident and the deceased being a gratuitous passenger, insurance company cannot be saddled with the liability to pay compensation. It is further contended that in the FIR at Exh.25, it is clearly mentioned that on the date of accident, deceased alongwith the complainant and other persons were heading in a marriage ceremony by travelling in the offending vehicle and at the place of accident because of rash and negligent driving of the driver of the offending vehicle, the truck got turtled. Resultantly, deceased died because of serious injuries. The FIR, Panchnama and other documents were produced by the claimants during the trial. Learned advocate for the appellant has placed reliance upon the decision of National Insurance Co. Ltd. v. Savitiri Devi and others reported in 2013(11) SCC 554 and submitted that in a similar facts, the insurance company of the offending vehicle was exonerated from the liability to pay compensation as there was a breach of the terms and conditions of the policy.
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4. Per contra, learned advocate for the respondent has supported the impugned judgment and award and further submitted that learned Tribunal has rightly held insurance company liable to pay compensation and has relied upon the decision of Hon'ble Apex Court dated 9.8.2018 in Civil Appeal No.2816 of 2018 in the case of Shivaji v. Divisional Manager, United India Insurance Co. Ltd. and submitted that the principle of pay and recover may be applied in the present set of facts.
5. Having considered the averments and the material placed on record, more particularly, Record and Proceedings, the undisputed fact which is surfacing on record is that on the date of accident, deceased alongwith other passengers were travelling in the mini truck for a marriage ceremony. Even the co-passenger in the FIR has also stated the same fact. There is no contrary material to place on record to dislodge the Page 5 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Mar 17 2025 Downloaded on : Fri Mar 21 23:08:18 IST 2025 NEUTRAL CITATION C/FA/3619/2011 JUDGMENT DATED: 07/03/2025 undefined aforesaid fact. When the vehicle insured is a commercial goods vehicle, any breach committed by either driver or owner of the vehicle would absolve the insurance company from its contractual liability to pay compensation. A contract of insurance being a special contract, any breach of terms and conditions of the policy, would absolve insurance company from the liability. The issue involved in the present case is no more res integra in the decision of National Insurance Co. Ltd. v. Rattani and others reported in 2009(2) SCC 75. In the said decision, Hon'ble Apex Court has observed that the allegation made in the FIR would be admissible in evidence per say, but as the allegations made in the FIR had been made part of the claim petition, there is no doubt whatsoever at the Tribunal and consequently the Appellate Court would be looked into the same.
6. In the present case, FIR at Exh.25 which has been relied upon by claimant and produced before the Page 6 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Mar 17 2025 Downloaded on : Fri Mar 21 23:08:18 IST 2025 NEUTRAL CITATION C/FA/3619/2011 JUDGMENT DATED: 07/03/2025 undefined learned Tribunal, learned Tribunal has grossly failed to appreciate the contents of the FIR.
7. It will be in the fitness of the things to reproduce relevant paragraphs of Savitiri Devi (Supra), i.e. paragraph Nos.8 to 12 which are as under:
"8. After having gone through the award of the Claims Tribunal and the judgment and order [National Insurance Co. Ltd. v. Savitri Devi, FAO No. 143 of 2000, decided on 28-7-2005 (HP)] passed by the learned Single Judge of the High Court, we are not able to understand as to how it has been found that the appellant Insurance Company can still be held liable to pay the amount of compensation as there has been a categorical finding by both the courts recording that the vehicle in question was insured only as "goods carrying vehicle". The custom of carrying barat in the village on the said truck will not be sufficient to hold the appellant Insurance Company liable to pay the amount of compensation. Admittedly, the appellant Insurance Company would not know unless the accident takes place as to for what purpose the vehicle in question was being used. The terms and conditions of the insurance policy are very clear and categorical and it creates a specific bar on carrying of any passengers, except Page 7 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Mar 17 2025 Downloaded on : Fri Mar 21 23:08:18 IST 2025 NEUTRAL CITATION C/FA/3619/2011 JUDGMENT DATED: 07/03/2025 undefined the employees other than the driver, not exceeding six (6) in number, who should also come under the purview of the Workmen's Compensation Act.
9. The specific case of the claimants was that the barat was being taken in the said open truck on 12-11-1996 when the accident had taken place. Thus, according to us, it clearly violates the terms and conditions of the policy.
10. Dealing with similar circumstance, this Court has held in National Insurance Co. Ltd. v. Bommithi Subbhayamma [(2005) 12 SCC 243] as under: (SCC p. 246, paras 9-11) "9. ... '... 20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people.' [Ed.: As Page 8 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Mar 17 2025 Downloaded on : Fri Mar 21 23:08:18 IST 2025 NEUTRAL CITATION C/FA/3619/2011 JUDGMENT DATED: 07/03/2025 undefined observed in National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1, p. 8, para 20 : 2004 SCC (Cri) 370.]
10. The same view was reiterated in National Insurance Co. Ltd. v. Challa Upendra Rao [(2004) 8 SCC 517 :
2005 SCC (Cri) 357] , Pramod Kumar Agrawal v. Mushtari Begum [(2004) 8 SCC 667 : 2005 SCC (Cri) 374] and also in National Insurance Co. Ltd. v.
V. Chinnamma [(2004) 8 SCC 697 :
2005 SCC (Cri) 378] .
11. In view of the aforementioned authoritative pronouncements of this Court, the impugned judgment of the High Court cannot be sustained which is set aside, accordingly. This Appeal is allowed. We, however, make it clear that the claimant respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Vehicles Accidents Claims Tribunal from the owner of the vehicle. No costs."
11. Similar view has been reiterated in National Insurance Co. Ltd. v. Rattani [(2009) 2 SCC 75 : (2009) 1 SCC (Civ) 398 : (2009) 1 SCC (Cri) 669] , paras 14 and 15 of which are reproduced hereunder: (SCC p. 79) "14. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If Page 9 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Mar 17 2025 Downloaded on : Fri Mar 21 23:08:18 IST 2025 NEUTRAL CITATION C/FA/3619/2011 JUDGMENT DATED: 07/03/2025 undefined the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.
15. As indicated hereinbefore, the first information report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the first information report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose."
12. In the light of the aforesaid judgments, we have no doubt in our minds that the impugned judgment and order of the learned Single Judge dated 28-7-2005 [National Insurance Co. Ltd. v. Savitri Devi, FAO No. 143 of 2000, decided on 28-7-2005 (HP)] cannot be sustained. The same is hereby set aside and quashed. No liability can be fastened on the appellant Insurance Company. The appeals of the appellant Insurance Company are allowed to this extent."
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8. In view of the above settled position of law, the impugned judgment and award is required to be interfered with and the insurance company is required to be exonerated from its liability since the owner and driver of the offending vehicle has committed breach of the terms and conditions of the policy.
9. Learned advocate for the appellant submits that amount which has been deposited before the learned tribunal has already been disbursed. The entire amount of compensation out of which 20% has been disbursed in favour of the claimant. The same may not be refunded to the insurance company. However, rest of the amount of compensation may be refunded back to the insurance company with accrued interest thereon. The submission sound reasonable and therefore the learned tribunal is hereby directed to refund the amount which is lying in the FDR with accrued interest to the insurance company after following due procedure of law.
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10. Resultantly, the first appeal is partly allowed accordingly. The impugned judgment and award holding insurance company liable to pay compensation is quashed and set aside. The claimant is permitted to execute the award against opponent No.1.
11. Record & Proceedings, if any, be sent back to the concerned Tribunal / Court. No order as to costs.
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