Gujarat High Court
United India Insruance Co. Ltd vs Kalabhai Bachubhai Parmar & 2 on 24 September, 2014
Author: Bhaskar Bhattacharya
Bench: Chief Justice
C/FA/2332/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2332 of 2007
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 INSRUANCE CO. LTD.....Appellant(s)
Versus
KALABHAI BACHUBHAI PARMAR & 2....Defendant(s)
================================================================
Appearance:
MR RAJNI H MEHTA, ADVOCATE for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1 - 3
================================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
MR. BHASKAR BHATTACHARYA
Date : 24/09/2014
Page 1 of 5
C/FA/2332/2007 JUDGMENT
ORAL JUDGMENT
This appeal under section 173 of the Motor Vehicles Act, 1988 ["the Act" for short] is at the instance of the insurance company and is directed against an award dated 11th January 2007, passed by the M.A.C.Tribunal [Aux.] Fast Track Court No.3, Kheda at Nadiad in M.A.C. Petition No. 938 of 1997, thereby partly allowing the claim- application and passing an award of Rs. 46,400/- for the injuries suffered by the claimant, with a direction upon the insurance company to first pay the amount and thereafter realize the same from the owner and the driver of the vehicle in question.
It appears from the record that on 16th March 1997, the claimant was traveling on a tractor as a labourer. But due to rash and negligent driving on the part of the driver of the tractor, the tractor turned turtle and the victim had fallen on the road and was injured as he was pressed by the tractor upon him, resulting in a fracture and other injuries.
Before the Tribunal below, a plea was taken by the insurance company that the policy in question being purely Act policy with additional premium paid for driver only and the claimant being a gratuitous passenger, he cannot be treated as third party.
The Tribunal below, however, accepted the position that there is violation of the terms of agreement by allowing a gratuitous passenger to travel. But in such circumstances, according to the Tribunal, the insurer should pay the amount and then recover the same from the owner of the vehicle. The Tribunal thus, partly allowed the claim-application and awarded the sum as indicated above.
Page 2 of 5C/FA/2332/2007 JUDGMENT Being dissatisfied, the insurance company has come up with the present appeal.
Mr. Mehta, the learned advocate, appearing on behalf of the appellant strenuously contended that the Tribunal below committed substantial error of law in asking his client to first pay the amount and then recover the same from the owner, inasmuch as in the facts of the present case, the claimant cannot even be described as third party and thus, those Supreme Court decisions where the Supreme Court has directed the payment of compensation to third party and recover from the owner, are not applicable. Mr. Mehta, therefore, prays for modification of the direction contained in the award impugned and totally exonerating his client from the liability.
None appears on behalf of the claimant in spite of service of notice.
After hearing Mr. Mehta, the learned advocate, appearing on behalf of the appellant and after going through the uncontroverted evidence given by the claimant, I find that the following statement was recorded in the affidavit-in-chief:
" On 16.03.97, I, the applicant was going for labour work on the tractor no. G.A.D. 9108 of Narvatbhai of Baleviya and at that time, as the Opponent No.1 - the driver of the tractor no. G.A.D. 9108 was driving his tractor negligently and in full speed on Sevaliya to Balasinor Road, he got the tractor turned turtle on road side. Therefore, I the applicant was pressed under the tractor and I, the applicant sustained big-small serious injuries on the bod and on the hips of right leg. The opponent no.1 has Page 3 of 5 C/FA/2332/2007 JUDGMENT lodged the complaint in that regard on the same day."
In the cross-examination, no suggestion was given to the said witness that his assertion that he was pressed under the tractor was incorrect.
Such being the position, in my opinion, although entry of the claimant on the vehicle was in violation of the terms of the policy, the moment it appears that due to the negligent driving on the part of the driver of the tractor he had fallen down on the street and thereafter, the tractor had fallen upon him resulting in injuries, his position is that of a third party, who has been injured due to rash and negligent driving on the part of the driver of the tractor. The position would have been different if he had simply fallen from the tractor and the tractor had not touched his body. In that event, it would have been argued that due to the risk taken in boarding a tractor, he had suffered the injury. In the present case, there was negligence on the part of the driver of the tractor, as a result, a person who had fallen on the street has been injured by the imbalanced tractor. Such a person comes within the purview of "third party". Here, the injury is caused due to dash of a vehicle to a third party lying on a road.
However, as the claimant has not preferred any appeal and this is an appeal by the insurance company, in this appeal, there is no scope of modifying the award in favour of the claimant holding that the insurance company is liable to pay the amount, as the claimant has accepted the award. However, in view of my above finding, I am not in a position to set aside the award by totally exonerating the insurance company of its liability as contended by Mr. Mehta. The result is, in this appeal at the instance of the insurance company, there is no scope of giving any relief and the appeal is simply Page 4 of 5 C/FA/2332/2007 JUDGMENT dismissed.
No order as to costs.
It appears that as a condition of stay of the award impugned, the insurance company was directed to deposit the entire amount awarded together with interest and cost and the insurance company has already deposited the same before the Tribunal. The Tribunal will disburse the said amount in favour of the claimant on proper verification within one month from the date of communication of this order.
The record and proceeding be sent out to the Tribunal below immediately.
(BHASKAR BHATTACHARYA, CJ.) pirzada Page 5 of 5