Gujarat High Court
United India Insurance Companylimited vs Bhanubhai Narsinhbhai on 4 February, 2013
Author: Chief Justice
Bench: Chief Justice
UNITED INDIA INSURANCE COMPANYLIMITED....Appellant(s)V/SBHANUBHAI NARSINHBHAI VASAVA C/FA/1065/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1065 of 2005 TO FIRST APPEAL NO. 1070 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= UNITED INDIA INSURANCE COMPANYLIMITED Versus BHANUBHAI NARSINHBHAI VASAVA & ORS. ================================================================ Appearance: MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1 MR DN PANDYA, ADVOCATE for the respondent No. 1 RULE SERVED for the respondents No. 2 , 3.1 UNSERVED-EXPIRED (R) for the respondent No. 3 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA Date : 04/02/2013 ORAL JUDGMENT
1. All these appeals were heard together as these appeals arise out of the common award disposing of 5 claim petitions filed under section 166 of the Motor Vehicles Act [the Act].
2. It appears that on 20th April 2000, some labourers had gone to village Dharikheda for the purpose of slab-slanting of a house and thereafter in the evening, they were returning to their homes at Rajpipla in a truck bearing registration No. GJ.3.U.4471. When the truck was passing near the village Dharikheda, the driver of the truck was driving in full speed and it turned turtle, as a result, all the occupants sustained severe injuries and some of them died.
3. It appears from Exh. 41, the complaint lodged before the police authorities, that about 22 to 25 persons were standing on the side of the road and they had raised their hands for stopping the truck. Consequently, the driver of the truck stopped vehicle and had taken all the persons as passengers in the truck.
4. It further appears from the record that the Insurance Company had the liability to pay compensation for the damages caused to the person and property of third-party, and that it was a goods vehicle and the contract of insurance prohibited carrying of passengers in it, and at the same time, there was no premium taken by the insurer for compensating the passengers in the vehicle except the driver and cleaner of the vehicle.
5. The Tribunal below, in spite of above findings, by relying upon the decision of the Supreme Court in the case of NATIONAL INSURANCE CO. LTD. v. BALJIT KAUR AND OTHERS reported in 2004 2 SCC 1 passed a direction upon the Insurance Company to make the payment and thereafter, to recover the same from the owner of the vehicle.
6. Being dissatisfied, the Insurance Company has come up with the present appeal. The owner of the vehicle has neither filed any appeal nor any Cross Objections against the award.
7. Heard Mr. Nanavati, the learned advocate appearing on behalf of the Insurance Company and Mr. Pandya, the learned advocate appearing on behalf of the claimants.
8. After hearing the learned counsel for the parties and after going through the materials on record, I find that the law is now settled that in a situation like the present one, the Insurance Company has no liability to reimburse the amount payable by the owner of the vehicle [see NATIONAL INSURANCE CO. LTD. vs. SAVITRI DEVI AND OTHERS reported in 2012 (4) SCALE 111].
9. Mr. Nanavati, the learned advocate appearing on behalf of the Insurance Company, submits that by virtue of interim order granted by this Court, his client, the Insurance Company, has already deposited the entire awarded sum and in some of the matters, the claimants have been permitted to withdraw a portion of the amount deposited and in some other matters, they have been permitted to withdraw interest arising out of the fixed deposit made by the Tribunal. Mr. Nanavati fairly submitted that in view of the law laid down by the Supreme Court in the case of NATIONAL INSURANCE CO. LTD. vs. SAVITRI DEVI AND OTHERS reported in 2012 (4) SCALE 111 the amounts which have already been paid to the claimants may not be ordered to be recovered from them but the amount which is lying in the Fixed Deposit as a condition of stay should be refunded to his client.
10. Mr. Pandya, the learned advocate appearing on behalf of the claimant, has, however, opposed the aforesaid contentions and submits that his clients being poor people, a direction should be given to the Insurance Company to pay the amount to them and thereafter, to recover the same from the owner of the vehicles.
11. After going through the decisions in the case of NATIONAL INSURANCE CO. LTD. v. BALJIT KAUR AND OTHERS reported in (2004) 2 SCC 1, I find that the Supreme Court, in exercise of powers conferred on it under Article 142 of the Constitution of India passed a direction upon the Insurance Company to make payment and then to recover the amount from the insured-owner of the vehicle. However, in the subsequent judgment of NATIONAL INSURANCE CO. LTD. vs. SAVITRI DEVI AND OTHERS reported in 2012 (4) SCALE 111, after holding that the Insurance Company is not liable to pay compensation in a case where a goods vehicle is used for carrying passengers, the Supreme Court held that if any amount is paid by the Insurance Company, it shall not be permissible for it to recover the amount from the claimants and that the claimants would be entitled to recover the balance amount of the compensation awarded to them from the owner of the vehicle.
12. In the light of the law laid down by the Supreme Court in the case of NATIONAL INSURANCE CO. LTD. vs. SAVITRI DEVI AND OTHERS reported in 2012 (4) SCALE 111, the appeals are allowed. It is declared that the appellant-Insurance Company is not liable to satisfy the impugned award passed by the Tribunal. However, it is clarified that if any amount has already been paid to the claimants either pursuant to the permission to withdraw a portion of the amount deposited or permission to withdraw interest arising out of the fixed deposits, the same shall not be recovered from the claimants. However, the amount lying in the Fixed Deposit, along with accrued interest, if any, is ordered to be refunded to the appellant-Insurance Company. If any amount deposited by the appellant pursuant to the order passed by this court pursuant to the imposed condition of stay, is lying with the Registrar of this Court, the same is also directed to be forthwith transmitted to the Tribunal and such amount shall also be refunded to the appellant-Insurance Company.
13. Since only the above point was raised by Mr. Nanavati, the award is modified only to the extent indicated above.
14. The appeals are allowed accordingly. No order as to costs.
14.1 Registry is directed to forthwith return the Record and Proceedings to the Tribunal.
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