Gujarat High Court
Oriental Insurance Co Ltd vs Mahadevbhai Gandabhai Koli & 7 on 2 May, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/FA/177/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 177 of 2011
[On note for speaking to minutes of order dated 22/02/2017 in
C/FA/177/2011 ]
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ORIENTAL INSURANCE CO LTD....Appellant(s)
Versus
MAHADEVBHAI GANDABHAI KOLI & 7....Defendant(s)
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Appearance:
MR KK NAIR, ADVOCATE for the Appellant(s) No. 1
MR SHALIN N MEHTA, ADVOCATE for the Appellant(s) No. 1
MR AB GATESHANIYA, ADVOCATE for the Defendant(s) No. 1
MR SUNIL B PARIKH, ADVOCATE for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 2 - 4 , 6 - 8
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 02/05/2017
ORAL ORDER
Heard Mr. K.K. Nair, learned advocate for the appellant-Insurance Company. Mr A B Gateshaniya, learned advocate for the claimants and Mr. Sunil Parikh, learned advocate for respondent no. 5- Insurance company.
2. The appellant has filed his present speaking to minutes note for recasting the conclusion recorded in para no. 5 of the judgment and final order in Page 1 of 5 HC-NIC Page 1 of 18 Created On Sun Aug 13 22:55:07 IST 2017 1 of 18 C/FA/177/2011 ORDER judgment dated 22.2.2017.
3. Mr. Nair has made submissions on the line of this speaking to minutes note.
4. Mr. Sunil Parikh, learned advocate for respondent no. 5 vehemently submits that since this Court has held that-Insurance company is not liable to pay the compensation, the fixed deposits which are lying with the claimant may be directed to be returned to respondent no. 5-Insurance company. It is his further submission that if respondent no. 5 tries to recover the amount from the owner, it may well be said of the owner that he is also not liable for compensation. He, therefore, urges that necessary order may be incorporated in the judgment directing the claimants to return the FDR which they are having.
5. Having heard learned advocate for otherside and having perused judgment dated 22.2.2017, I am of the view that the conclusions as well as the final order as urged in this speaking to minutes needs to be recasted. The submission of Mr. Parikh, learned advocate for respondent no. 5 cannot be accepted. The reason is simple. The claim petition instituted by the claimants is not found to be maintainable but Page 2 of 5 HC-NIC Page 2 of 18 Created On Sun Aug 13 22:55:07 IST 2017 2 of 18 C/FA/177/2011 ORDER since the they were not dependent upon the deceased in view of the decision of the Supreme Court in the case of Manjuri Bera, they are entitled to received compensation to the limited extent as is admissible under section 140 of the M.V Act. Therefore, the anxiety of Mr. Parikh, that the owner of the vehicle would also say that he is not liable to pay the compensation is misconceived. I am, therefore, of the view that it is not expedient to direct the claimants to return the FDs which are released in his favour to the respondent no.5- Insurance company.
6. In view of above para 14 of final order of judgment dated 22.2.2017 is ordered to read as under
:
" For the foregoing reasons, the appeal succeeds and it is held that the appellant Insurance company is not liable to pay any amount of compensation to the claimants and consequently, whatever amount is lying invested out of the amount deposited by the appellant Insurance company, pursuant to the orders of this Court on the civil application for stay, shall have to be refunded to the appellant with accrued interest Page 3 of 5 HC-NIC Page 3 of 18 Created On Sun Aug 13 22:55:07 IST 2017 3 of 18 C/FA/177/2011 ORDER by the Tribunal. However, the amount already withdrawn by the claimants pursuant tot he orders of this Court shall not be recovered from the claimants, but the Insurance company shall be entitled to recover the same from the owner of the utility vehicle insured by it by filing execution in the claim petition before the Tribunal.
" In view of the discussion as above, respondents No.1 and 2 are held entitled to get compensation as admissible under section 140 of the MV Act and other pecuniary loss which would come to Rs 50,000/- plus Rs 5,000/- as funeral expenses = Rs 55,000/-. However, as the claimants have already been paid 40% of the amounts deposited by the Insurance Companies at the time of admission and also periodical interest on 60% amount invested, no further orders are required to be passed in favour of respondents no. 1 and 2 original claimants.
The first appeal stands allowed as stated above with no order as to costs."Page 4 of 5
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7. Registry is directed to correct the judgment and rectify the writ accordingly.
8. Speaking to minutes stands disposed of.
(A.G.URAIZEE,J)
MARY
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C/FA/177/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 177 of 2011 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE ========================================================== 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 ?
========================================================== ORIENTAL INSURANCE CO LTD....Appellant(s) Versus MAHADEVBHAI GANDABHAI KOLI & 7....Defendant(s) ========================================================== Appearance:
MR KK NAIR, ADVOCATE for the Appellant(s) No. 1MR SHALIN N MEHTA, ADVOCATE for the Appellant(s) No. 1 MR AB GATESHANIYA, ADVOCATE for the Defendant(s) No. 1 MR SUNIL B PARIKH, ADVOCATE for the Defendant(s) No. 5 RULE SERVED for the Defendant(s) No. 2 - 4 , 6 - 8 ========================================================== CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE Date : 22/02/2017 Page 1 of 13 HC-NIC Page 6 of 18 Created On Sun Aug 13 22:55:07 IST 2017
6 of 18 C/FA/177/2011 JUDGMENT ORAL JUDGMENT The appellant-Insurance company has challenged its liability to pay the compensation under the judgment and award dated 24.9.2010 passed by Chairman, MAC Tribunal-Main, Surendranagar in MACP No. 356/2006.
2. The brief facts giving rise to the present appeal are that the deceased Sangitaben who was the daughter of respondents no.1 and 2 herein had gone to Khodiyar Mataji for paying obeisance with her husband on 15.12.2004. After darshan they were waiting at Dhuva Chokdi for some utility vehicle when a jeep bearing registration No. GJ-3-X-2939 came and the deceased and her husband boarded the said vehicle. When the said vehicle was passing by Wankaner near village Garida, the respondent no. 3 herein came with truck and dashed with the backside of the said jeep. At the relevant time the jeep was of the ownership of respondent no. 7 while the truck was the ownership of respondent no. 4 herein. The utility vehicle was insured with the present appellants while the truck was insured with respondent no. 5- Insurance Company. The respondents no. 1 and 2- parents of the deceased filed MACP No. 356/06 in the Motor Accident Claims Tribunal, Surendranagar to Page 2 of 13 HC-NIC Page 7 of 18 Created On Sun Aug 13 22:55:07 IST 2017 7 of 18 C/FA/177/2011 JUDGMENT recover 4 lakhs as compensation from the driver,owner and the Insurance Company of the vehicles involved in the accident. The tribunal by the impugned judgment and award allowed the claim petition in toto and directed the appellant and respondents no. 2 to 7 herein to pay a sum of Rs 4 lakhs with 9% interest with proportionate costs jointly and severally to respondents no. 1 and 2 herein. The appellant being aggrieved and dissatisfied with the liability of the payment of compensation, has preferred the present appeal.
3. I have heard Mr. K.K Nair, learned advocate for the appellant, Mr. A.B Gateshaniya, learned advocate for respondent no.1 and Mr. Sunil Parikh, learned advocate for respondent no. 5-Insurance company. There is no representation on behalf of rest of the respondents despite service of notice of the appeal.
4. Mr. Nair, learned advocate for the appellant has presently urged that deceased Sangitaben was travelling in a goods vehicle and therefore in view of the decision dated 17.8.2015 in First Appeal No. 2684 of 2004 and cognate appeals, the Tribunal ought not to have saddled the liability of the compensation on the appellant. He, further submits that in view of the decision of the Supreme Court in the case of Page 3 of 13 HC-NIC Page 8 of 18 Created On Sun Aug 13 22:55:07 IST 2017 8 of 18 C/FA/177/2011 JUDGMENT Smt. Manjuri Bera Vs Oriental Insurance Co. Ltd AIR 2007 SC 1474, the respondents no.1 and 2 the parents of the deceased cannot be considered as dependents as the deceased was married daughter. He, therefore, urges that the appeal may be allowed and the appellant-Insurance company be exonerated from the liability of the payment of compensation.
5. Mr. Sunil Parikh, learned advocate for respondent No. 5-Insurance company has adopted the arguments of Mr Nair and further submits that the claim of respondents no. 1 and 2 against respondent no. 5-Insurance company is concerned, it will survive so far as the claim under section 140 of the M.V Act and the Tribunal ought not to have awarded compensation to the claimants as dependents of the deceased.
6. Mr. Ghateshania, learned advocate for respondent no.1 has vehmently opposed the appeal. He urges that respondent no. 8 herein ,husband of the deceased had waived his right to compensation in favour of respondent no. 1 and 2 and therefore, the Tribunal has not committed any error in awarding compensation to the respondent nos. 1 and 2. He furhter submits that Glory bai and anothers. Vs Page 4 of 13 HC-NIC Page 9 of 18 Created On Sun Aug 13 22:55:07 IST 2017 9 of 18 C/FA/177/2011 JUDGMENT SKA Noojakan Beevi and ors 2011 Law Suit (Mad) 2951, has granted full compensation in the similar set of facts. He submits that the decision of Supreme Court in the case of Smt. Manjuri Bera (supra) is not applicable to the facts of the present case. Relying upon the decision of this Court in the case of United India Insurance Company Ltd. Vs Diptiben Urshbhai Vora 2016(o) AIJEL-HC 234025, the claim petition at the instance of respondent no. 1 and 2 was maintainable. He, therefore, urges that the appeal may be dismissed.
7. The two questions are posed for consideration in this appeal (1) whether the Tribunal was justified in saddling the liability of payment of compensation on the appellant-Insurance company in view of the fact that the deceased was travelling as a gratuitous passenger in a goods vehicle. (2) whether the parents of the deceased Sangitaben can be considered to be dependents of the deceased.
8. The tribunal has fastened the liability of payment of the compensation on the appellant- Insurance company on the premise that the Mahindra pick up van in which the deceased was travelling was not strictly meant for movement of Page 5 of 13 HC-NIC Page 10 of 18 Created On Sun Aug 13 22:55:07 IST 2017 10 of 18 C/FA/177/2011 JUDGMENT goods only. The Tribunal found the material on record not sufficient and clinching to hold that the appellant-Insurance company is not liable to indemnify the owner. The premises adopted by the Tribunal for saddling the liability of payment of compensation on the appellant is fallacious. Though the sitting capacity of the pick up van in which the deceased was travelling was 4+1 by itself would not render it a vehicle which is partly meant for transporting goods and partly meant for ferrying passengers. The Insurance-policy of the pick up van itself contains the recital that the policy would be valid only for carriage of goods within the meaning of Motor Vehicle Act. Therefore, it is vividly clear that the vehicle in which the deceased was traveling was a goods vehicle and therefore in view of the ratio expounded by this Court in the decision dated 17.8.2015 rendered in First Appeal No. 2684/2004 to First Appeal No. 2687/2004, the Tribunal ought not to have saddled the liability of payment of compensation on the appellant Insurance company.
9. So far as the entitlement of respondents no. 1 and 3 to claim compensation as dependents of the deceased Sangitaben is concerned it is no more resintegra in view of the decision of the Supreme Court in the case of Smt. Manjuri Bera (supra) Page 6 of 13 HC-NIC Page 11 of 18 Created On Sun Aug 13 22:55:07 IST 2017 11 of 18 C/FA/177/2011 JUDGMENT wherein the facts were other way around as much as it was the case in which the married daughter who had instituted the claim compensation in the Supreme Court considered the question whether the married daughter was entitled to claim compensation as the dependent of the deceased after considering various provisions. It has recorded a finding that a married daughter cannot be considered to be dependent on her parents, till if she remains to be a legal representative as contemplated under section 166 of the M.V Act and accordingly is competent to lay the claim petition. But in such a petition the claim would be restricted to the entitlement under section of the 140 of the M.V Act. The Supreme Court has made following relevant observations in para 14 and 16 which is under :
"15. Section 165 of the Act also throws some light on the controversy. The explanation includes the liability under sections 140 and 163-A.
16. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to section 140 of the Act. There fore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Page 7 of 13 HC-NIC Page 12 of 18 Created On Sun Aug 13 22:55:07 IST 2017 12 of 18 C/FA/177/2011 JUDGMENT section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned amicus curiae."
10. Relying upon the decision of the Supreme Court in Smt. Manjuri Bera (supra), this Court in the case of Diptiben Vora (supra) has also held as under :
"Thus, considering the object and purpose of awarding compensation under the head of loss of dependency / future loss of income, though at the instance of claimant, who is a legal representative but not dependent upon the deceased / victim of the accident, claim petition for seeking compensation under the Motor Vehicles Act shall be maintainable, but such claimant, who is not dependent upon the deceased / victim of the accident, shall not be entitled to any compensation under the head of loss of dependency / future loss of income, for the simple reason that at the time of accident, such a claimant was not dependent upon the income of the deceased / victim of the accident and therefore, there shall not be any loss of dependency / future loss of income to such a claimant. However, such claimant shall be Page 8 of 13 HC-NIC Page 13 of 18 Created On Sun Aug 13 22:55:07 IST 2017 13 of 18 C/FA/177/2011 JUDGMENT entitled to compensation under other heads such as medical expenses, funeral expenses, transportation charges etc. which may fall under pecuniary loss / pecuniary damages, as the same can be said to be loss to the estate and the claimant shall also be entitled to compensation under other conventional heads such as loss of consortium, loss of love and affection, loss of estate etc. Under the circumstances, it is held that the claim petition seeking compensation under the Motor Vehicles Act for the death of the deceased / victim of the accident, at the instance of a claimant, who is heir and legal representative but not dependent, shall be maintainable and as observed by the Hon'ble Supreme Court in the case of Manjula Devi (supra), such compensation shall not be less than the amount as provided under section 140 of the Motor Vehicles Act. Thus, the claimant in such a case, shall be entitled to minimum compensation as provided under section 140 of the Motor Vehicles Act. It is further observed and held that as such claim petition is held to be maintainable, such a claimant, who is legal heir but not a dependent, shall not be entitled to any amount of compensation under the head of loss of dependency / future loss of income, Page 9 of 13 HC-NIC Page 14 of 18 Created On Sun Aug 13 22:55:07 IST 2017 14 of 18 C/FA/177/2011 JUDGMENT but shall be entitled to compensation under other heads towards pecuniary loss / damages such as medical expenses, transportation, special diet, attendance charges and under the conventional heads such as, loss of consortium, loss of estate, loss of love and affection etc."
11. It is, thus, succinctly clear that respondents no. 1 and 2 being parents of the deceased married daughter cannot be said to be dependent on her but at the same time they retained their capacity of her legal representative and therefore would be entitled to claim compensation as is admissible under section 140 of the M.V Act and other pecuniary loss. It is manifestly clear that the Tribunal has fallen in error in awarding compensation to respondent no. 1 and 2 in their capacity as dependents of their married daughter.
12. The decision of the Madras High Court in the case of Glorybhai (supra) cannot be pressed into service. It appears from the perusal of this decision that the decision of the Supreme Court in the case of Smt. Manjuri Bera (supra) is held to be not applicable only on the ground that the case before the Supreme Court, it was the married daughter who had claimed the compensation whereas in the case Page 10 of 13 HC-NIC Page 15 of 18 Created On Sun Aug 13 22:55:07 IST 2017 15 of 18 C/FA/177/2011 JUDGMENT on hand the parents were the claimants of compensation in respect of the death of their married daughter. This can hardly change the legal position. If married daughter cannot be said to be the dependent on her parents, in the same way the parents of married daughter cannot be said to be the dependents of the deceased married daughter. Therefore, I am not inclined to agree with the line of reasoning adopted by the Madras High Court in wishing away with the provisions of law expounded by the Supreme Court in the case of Smt. Manjuri Bera (supra).
13. In view of the proposition of law laid down by the Supreme Court in the case of Smt. Manjuri Bera (supra) it is very clear that there is a distinction between being dependent on the deceased and being legal representatives of the deceased for maintaining the claim petition. Though the parents of the deceased cannot be said to be dependents on the deceased married daughter, nevertheless, they do not cease to be legal representatives. The Honourable Supreme Court in the case of Smt. Manjuri Bera (supra) has held as under
" 14. There are several factors which have to be noted. The liability under Section 140 of the Act does not cease Page 11 of 13 HC-NIC Page 16 of 18 Created On Sun Aug 13 22:55:07 IST 2017 16 of 18 C/FA/177/2011 JUDGMENT because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency."
14. For the foregoing reasons the appeal succeeds and is allowed in part. The appellant Insurance company is held liable to pay compensation to respondent nos. 1 and 2 to the limited extent as is admissible under section 140 of the M.V Act and other pecuniary loss which would come to Rs 50,000/- plus Rs 5000/- as funeral expenses =Rs 55,000/- in all.
15. This Court is informed that the appellant-
Insurance company had deposited certain
compensation in-compliance of interim order
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C/FA/177/2011 JUDGMENT
passed in this appeal while respondent no.5-
Insurance company has also deposited 50% of the compensation as its liability in the Tribunal. This Court is further informed that the same disbursement is made in favour of respondent nos 1 and 2 in compliance of orders passed by this Court. It is clarified that the amount disbursed in favour of the respondents no. 1 and 2 shall not be recovered from them by either the appellant or respondent no. 5-Insurance company. The appellant-Insurance company shall be at liberty to recover the such amount from of the owner of the offending utility vehicle.
16. The balance amount is ordered to be returned to the appellants-Insurance company with accrued interest if any. Parties are left to bear their own costs.
17. R & P shall be transmitted to the trial court.
(A.G.URAIZEE,J) MARY Page 13 of 13 HC-NIC Page 18 of 18 Created On Sun Aug 13 22:55:07 IST 2017 18 of 18