Gujarat High Court
The New India Assurance Co.Ltd vs Sureshkumar Shakralal Darji & 3 on 4 January, 2016
Author: M.R. Shah
Bench: M.R. Shah
C/FA/4601/2007 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 4601 of 2007
With
FIRST APPEAL NO. 4602 of 2007
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THE NEW INDIA ASSURANCE CO.LTD....Appellant(s)
Versus
SURESHKUMAR SHAKRALAL DARJI & 3....Defendant(s)
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Appearance:
MR AJAY R MEHTA, ADVOCATE for the Appellant(s) No. 1
MR AMIT C NANAVATI, ADVOCATE for the Defendant(s) No. 1- 2
RULE SERVED for the Defendant(s) No. 3 - 4
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 04/01/2016
ORAL ORDER
[1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal, Sabarkantha at Himatnagar in MACP Nos.1569/1997 and 1691/1997 in holding original opponent no.3-New India Assurance Co. Ltd.-Insurer of the Tractor Trolley, in which the deceased was traveling, liable to pay the compensation, the appellant-original opponent no.3-Insurer of the Tractor Trolley-New India Assurance Co. Ltd. has preferred the present First Appeals.
[2.0] It is the case on behalf of the appellant that as both the deceased were traveling in the Tractor Trolley, which can be said to be the goods vehicle and, therefore, they were unauthorizedly traveling in the Tractor Trolley and, therefore, the Insurance Company is not liable to pay the compensation.
Page 1 of 3HC-NIC Page 1 of 3 Created On Fri Jan 08 00:06:29 IST 2016 C/FA/4601/2007 ORDER [3.0] However on the other hand, it is the case on behalf of the original claimants that though both the deceased were traveling in the Tractor Trolley, which may be said to be goods vehicle, they sustained the injuries after they were thrown out of the Tractor Trolley and had fallen on the road and the Tractor Trolley ran over the body of both the deceased and, therefore, as held by the learned Single Judge of this Court in First Appeal No.2194/2007 they can be said to be "third party"
with reference to the Tractor Trolley and, therefore, on their death the original claimants are entitled to the compensation.
[4.0] Shri Parikh, learned advocate appearing on behalf of the appellant-Insurance Company on the other hand has heavily relied upon one another decision of the very learned Single Judge in the case of New India Assurance Co. Ltd. Vs. Heirs & Legal Representatives of deceased Pravinsinh Ranubhai Zala reported in 2013 (2) GLR 1580 in which the learned Single Judge has taken a just contrary view.
[5.0] Having heard the learned advocates appearing on behalf of the respective parties and considering the decisions of the learned Single Judge in First Appeal No.2194/2007 and another decision of the very learned Single Judge in the case of Heirs & Legal Representatives of deceased Pravinsinh Ranubhai Zala (Supra) there seems to be conflicting decisions.
[5.1] Even otherwise, this Court finds it difficult to agree with the view taken by the learned Single Judge in First Appeal Page 2 of 3 HC-NIC Page 2 of 3 Created On Fri Jan 08 00:06:29 IST 2016 C/FA/4601/2007 ORDER No.2194/2007 by which it is held that though initially in the Jeep, in that case, as the passenger was in terms of violation of the agreement the moment such a passenger, due to the negligence on the part of the driver of the Jeep had been thrown out of the Jeep and, thereafter the rear portion of the Jeep itself had fallen upon her, the position of such passenger must be treated as 'third party' with reference to the Jeep and, therefore, the original claimants shall be entitled to the compensation. Under the circumstances, in view of the aforesaid two conflicting decisions, the matters are referred to the Division Bench to consider the following question of law.
"Whether in the case where the initial entry in a vehicle as a passenger is in violation of the terms of the agreement, the moment such a passenger had been thrown out of the said vehicle and thereafter some portion of the vehicle itself had fallen upon the body of the passenger, the position of such passenger can be treated that of "third party" with reference to that vehicle and in such a case on the death of such passenger whether his heirs and legal representatives are entitled to compensation and the Insurer of the vehicle can be held liable to pay the compensation."
Registry to obtain appropriate order from Hon'ble the Acting Chief Judge for placing the matters before Division Bench.
(M.R. SHAH, J.) Siji Page 3 of 3 HC-NIC Page 3 of 3 Created On Fri Jan 08 00:06:29 IST 2016