Gujarat High Court
United India Insurance Company Limited vs Gordhanbhai Bhayabhai Koli on 11 March, 2022
C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1437 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNITED INDIA INSURANCE COMPANY LIMITED
Versus
GORDHANBHAI BHAYABHAI KOLI & 2 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Defendant(s) No. 3.1,3.2,3.3,3.4,3.5
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/03/2022
CAV JUDGMENT
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the present appellant- United India Insurance Company Limited, being aggrieved and dissatisfied with the judgment and award dated 15.01.2013 passed by the Motor Accident Claims Tribunal Page 1 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022 C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 (Main), Rajkot in Motor Accident Claim Petition No. 472 of 2009, by which the Tribunal has awarded compensation of Rs.3,33,500/- with 8% per annum interest to the claimants from the date of filing of application, by holding Opponent Nos.1 to 3 liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 On 04.04.2003, One Chhaganbhai Bijalbhai has expired. The present applicants are the legal heirs of the deceased-Chhaganbhai Bijalbhai. The said accident had occurred when deceased-Chhaganbhai Bijalbhai was serving as a cleaner in the Truck bearing registration No.GJ-3-U-5519. When Truck reached near Kodwa village, Ahmedabad, at that point of time, deceased-Chhaganbhai Bijalbhai felt chest pain and due to heart attack, he died in the vehicle itself. At the time of death, the deceased-
Chhaganbhai Bijalbhai was aged about 40 years old and was earning Rs.40,000/- by doing job as a cleaner in said Truck and also as a labourer. Therefore, the deceased was died in harness during the use of vehicle-Truck as a cleaner. Thereafter, the application is field by the legal heirs of the deceased to get compensation under Section 163A of the Motor Vehicles Act, 1988.
Page 2 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 2.2 The Tribunal has issued notices to all the opponents. Opponent No.3-Insurance Company has filed its written statement at Exh.15 and submitted that there is no nexus between cause of death and accident. It is the say of the insurance company in the written statement that the death of the deceased was not caused due to workload, but due to natural cause. The claimant has also filed a claim petition before the Workmen's Compensation Commissioner vide case No.56 of 2003, where they had failed to prove the accident. Therefore, the claim petition was filed under Section 163A of the Motor Vehicles Act, 1988. The insurance company has prayed that claim petition be dismissed.
2.3 The claimant has deposed at Exh.23 and has also produced the documentary evidence at Exh.16, by which copy of inquest Panchnama, copy of First Information Report, copy of cause of death, copy of P.M. report, copy of driving licence and copy of R.C. book, copy of insurance police and also statement of driver recorded before police is also produced on record at Exh.26 to 34, in the claim petition.
2.4 The Tribunal has proceeded and decided the claim petition by holding that the death of the cleaner occurred during the use of motor vehicle and during the course of employment as he was on duty and further, Page 3 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022 C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 there is nexus between death and accident. Therefore, the amount of compensation Rs.3,33,500/- with 8% per annum interest is awarded by directing Opponent Nos. 1 to 3 liable, jointly and severally. Hence, this appeal by the Insurance Company.
3.1 Learned advocate Mr. Vibhuti Nanavati for the appellant-United India Insurance Company Limited has submitted that the present appeal is filed as earlier, the opponents have filed the Workmen Compensation Application being W.C. (Fatal) Case No.56 of 2003 before the concerned Workmen's Compensation Commissioner, which was subsequently withdrawn by the claimants on 22.012.2009.
3.2 Further, he has submitted that on 21.03.2009, the claimants have therefore, filed the claim petition under Section 163A of the Motor Vehicles Act, 1988. He has submitted that, in view of the Section 167 of the Motor Vehicles Act, 1988, the claimants can opt the claim petition either under the Workmen's Compensation Act, 1923 or under the Motor Vehicles Act, 1988. Once opted under a claim under the provisions of the Workmen's Compensation Act, 1923, the claimants cannot entitled to file the claim petition under the provisions of the Motor Vehicles Act, 1988.
Page 4 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 3.3 Further, he has submitted that there is no nexus between cause of death i.e. heart attack during use of vehicle, as heart attack is natural cause and it cannot be connected with the work of the cleaner, who is on duty on, that day. the said day.
3.4 Further, he has submitted that the Tribunal has erred in granting the compensation under Section 163A of Motor Vehicles Act, 1988 which is required to be dismissed and has also erred in granting compensation by holding the insurance company liable to pay the amount of compensation. Therefore, in support of his contentions, learned advocate Mr. Nanavati has placed reliance upon the decision of Hon'ble Apex Court in the Case of Oriental Insurance Company Ltd. Vs. Dyamavva & Ors. reported in (2013) 9 SCC 406, where the death of employee has occurred during the course of his employment, the dependents of deceased had filed claim petition for compensation under the Motor Vehicles Act, 1988, the dependents have accepted amount suo motu deposited by employer with Workmen's Compensation Commissioner, the Hon'ble Apex Court has found that the claimants would be deemed to have exercised their options under Section 167A of the Motor Vehicle Act, 1988, to seek compensation under the Workmen's Compensation Act, 1923 and therefore, the claimants can chose one forum only to exercise such option.
Page 5 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 He has submitted that in view of this judgment, the present claim petition filed by the claimants is not tenable in law.
3.5 He has further placed reliance upon the decision of Hon'ble Apex Court in the case of Branch Manager, National Insurance Company Ltd. Vs. Mousumi Bhattacharjee & Ors. repored in (2019) 5 SCC 391, by relying the word 'what is accident' and 'death of accident' if included.
3.6 Further, he has submitted that in that case death was caused due to Mosquito bite, as a result of encephalitis malaria, in a malaria prone area the Hon'ble Apex Court has considered such cause as an accident and therefore, accident was covered under the insurance policy. Therefore, in view of that judgment, he has submitted that the present case is not arising from any accident as the deceased died due to natural cause of death i.e. heart attack. Thereafter, he prays that the present appeal may be allowed by dismissing the claim petition of the claimants or by exonerating the insurance company form its liability of payment of compensation.
4.1 Per contra, learned advocate Mr. Hemal Shah appearing for claimant Nos.3.1 to 3.5 has submitted that the Tribunal has rightly considered the totality of the facts and also the documentary evidence which is produced on record, Page 6 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022 C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 where the Court has pointed out from the fact that when the claim petition is filed under the Workmen's Compensation Act, 1923 being Workmen's Compensation (Fatal) Case No.56 of 2003, which was withdrawn by specifically mentioning that the case is withdrawn as the claimants are willing to proceed with the claim petition before the Motor Accident Claims Tribunal concerned, in the Lok Adalat held at Labour Court, on 22.02.2009, the claimants have not received any amount towards compensation from that proceedings therefore, it cannot be said that the claimants have opted the recourse under the W.C. Act which is adjudicated by any Competent Court on merits, therefore, the claimants are entitled to proceed with the claim petition under Section 163 of the Motor Vehicles Act, 1988.
4.2 Further, he has submitted by relying on the observations made in the impugned judgment and by relying on documentary evidence produced alongwith the claim petition by indicating that the deceased-Chhaganbhai Bijalbhai was going in the Truck as a cleaner and the driver of the Truck has given statement at Exh.34 in the claim petition where it is be found that there is some defect in the Tyre of the Truck. Therefore, as a cleaner, the deceased- Chhaganbhai Bijalbhai has worked for it, and has taken strain in changing the Tyre of the Truck. Therefore, while sitting in the Truck, he has received heart attack.
Page 7 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 4.3 Further, he has also indicated from Exh.39 that the ASI-Chandrakanta Shantaram Bhoj of Sagbara Police Station, Narmada District, has examined and has produced the accident papers at Exh.41, which clearly indicates that the deceased has expired due to the chest pain and while he was taken to the hospital, he has expired on the way. The cause of death is also indicated the same. Thereafter, it clearly transpires that the deceased was working as a cleaner in the said Truck at the relevant point of time and he was on duty of Respondent No.2-owner of the vehicle.
4.4 Further, He has submitted that with regard to the contention of the insurance company about the nexus between cause and the accident it cannot be considered as a natural death, as considered in similar set of facts by this Court in the case of Oriental Insurance Co. Ltd. Vs. Madhuben Kanjibhai Chauhan in First Appeal No.3426 of 2005 order dated 16.02.2012, more particularly para 6. In similar set of circumstances, he has also placed reliance upon the another decision rendered in the case of Oriental Insurance Co. Ltd. Vs. Mumtajben WD/D. Mahemoodbhai Deriya & Others in First Appeal No.2369 of 2006 in that case, the deceased has expired due to heart attack. This Hon'ble Court has found that the fact remains that the deceased had died during the course of employment, Page 8 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022 C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 and the Court has considered that even under the provisions of Workmen's Compensation Act, 1923, the amount of compensation should be awarded to the claimants.
4.5 He has also placed reliance upon the decision of Hon'ble Apex Court in the case of Rita Devi V. New India Assurance Co. Ltd. reported in (2000) 5 SCC 113 whereby, the Hon'ble Apex Court has considered that the occurrence of accident is incidental to the duties during the course of employment. He has lastly submitted that the Hon'ble Apex Court long ago has considered the said issue in the case of Shivaji Dayanu Patil v. Smt. Vatschala Uttam More repored in AIR 1991 SC 1769, where the accident had arisen out of use of motor vehicle is considered, where the case of expulsion exchange held in the Truck and this Court has found that the claimants are entitled to get the compensation under the provisions of Motor Vehicles Act, 1988. Therefore, he has submitted that the present appeal filed by insurance company is required to be dismissed.
5.1 I have heard the learned advocates for the respective parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment. I have considered the provisions of Section 167 of the Motor Vehicles Act, 1988 which reads as follows.
Page 9 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 "Section 167:- Option regarding claims for compensation in certain cases. Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.
From above, it clearly transpires that, the claimant can file and get the compensation either under the provisions of Workmen's Compensation Act, 1923 or under the Motor Vehicles Act, 1988 and can opt either of the proceedings.
5.2 Here in the present case, it is found that earlier the claimants have filed the petition under the Workmen's Compensation Act,1923 which has been withdrawn with a clear assertion to proceed with the petition under the provisions of the Motor Vehicles Act, 1988. Accordingly, Workmen's Compensation Commissioner has permitted to withdraw that proceedings under the Workmen's Compensation Act, 1923. Therefore, in my opinion, the petition under the Workmen's Compensation Act is neither decided on merits nor the claimants have received any compensation under the provisions of the Workmen's Compensation Act, 1923. Therefore, in that background, the claimants are legitimately entitled to proceed with the proceedings under the provisions of Section 163A of Motor Vehicles Act, 1988 to get the compensation.
Page 10 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 Therefore, that contention of insurance company is not well founded in the facts and circumstances of the present case.
5.3 On the other aspect, where cause of death by chest pain, has occurred during the course of employment, it is on record that the claimant was travelling in the Truck as a cleaner from Ahmadabad to Yavatmal and on the way during course of his employment, he received heart attack. Whether such cause of death is considered as an accident and if yes, then whether the claimant is entitled to get the amount of compensation under Section 163A of Motor Vehicles Act, 1988 is the issue involved in this appeal. It is relevant to note that the statement of the driver of the Truck which is produced on record at Exh.36 clearly indicates that the deceased-Chhaganbhai Bijalbhai was working as a cleaner in the said Truck and was sitting with him in said Truck when they reached near Vasad Chakdi and going towards Ankleshwar at about 5:30 pm, some puncture has occurred in the reur wheel of the Truck and therefore, he and deceased-Chhaganbhai Bijalbhai have changed the wheel of the Truck. After taking tea, they have started further journey and at that point of time, cleaner/conductor- Chhaganbhai Bijalbhai has told the driver that he is feeling pain in his chest and thereafter, within few minutes, he died in the Truck.
Page 11 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 5.4 Therefore, it clearly reveals that the deceased- Chhaganbhai Bijalbhai has performed his duty as a cleaner and he has received stress while changing the wheel of the Truck and while sitting in the Truck, he received severe chest pain and due to that, he succumbed to the heart attack. Therefore, it can be easily inferred that said accident has nexus between the nature of employment and stress caused due to employment and it can also be amounted to be an accident. The judgments cited by learned advocate Mr. Shah of this Court and as well as of the Hon'ble Apex Court are on the same circumstances but for the different injuries. In one of the cases of the Hon'ble Supreme Court that there is blast in the tanker and in one of the cases that there is case of murder during the use of motor vehicle and in one of the abovementioned cases of this Court, the cause is also heart attack. Therefore, our High Court as well as Hon'ble Apex Court have taken a view that there is nexus between the cause of death and the accident. Therefore, I found that the insurance company can be held liable to pay the amount of compensation as per the provisions of the Insurance Policy. Regarding the provisions of Section 163A of the Motor Vehicles Act, 1988 in the case of Chandrakanta Tiwari Vs. New India Assurance Co. Ltd. reported in (2020) 7 SCC 386, the Hon'ble Apex Court has discussed the scope of inquiry more particularly para 10 and 11, Page 12 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022 C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 which are reproduced as under:
10. The High Court, by the impugned judgment, allowed the appeal of the insurance company stating that the claimant, not being an eye witness, could not possibly give evidence as to the accident that took place, as a result of which, the Section 163A petition would have to be dismissed. Also, nothing was brought on record to show that the deceased was having a valid driving license. This would also, therefore, take the case outside the insurance policy, as a result of which, the appeal would deserve to be allowed on this ground also.
11. Section 163A reads as follows:
163A. Special provisions as to payment of compensation on structured formula basis.
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation--For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
Page 13 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 Thus, the Hon'ble Apex Court has held that under the Provisions of Section 163A of the Motor Vehicles Act, 1988, the claimant has to prove only the use of Motor Vehicle. Here, the claimants have rightly proved his case by leading cogent and convincing evidence. It can be easily inferred from the facts of the case that the cause of death is connected with the nature of employment and also caused during the use of motor vehicle, which is insured by the insurance company. Therefore, there is no substance in the submissions made by the insurance company about exonerating it from its liable to pay any compensation or about the non-maintainability of the petition under Section 163A of the Motor Vehicles Act, 1988. Accordingly, the present appeal is found meritless and thus is required to be dismissed.
6. With the above observations, the following order is passed:
6.1 The present First Appeal No.1437 of 2013 is dismissed, with no order as to costs.
6.2 The Tribunal shall disburse the entire amount lying in FDR and/or lying with the Tribunal to the claimants, within a period of six weeks from copy from today, by following due procedure, by way of account payee cheque, after proper verification.Page 14 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022
C/FA/1437/2013 CAV JUDGMENT DATED: 11/03/2022 6.3 Record and Proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 15 of 15 Downloaded on : Tue Mar 15 21:34:51 IST 2022