Gujarat High Court
Dineshbhai Narsinhbhai Rohit vs Devjibhai @ Devabhai Shivabhai Rohit on 14 December, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/FA/3370/2017 JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3370 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
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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DINESHBHAI NARSINHBHAI ROHIT
Versus
DEVJIBHAI @ DEVABHAI SHIVABHAI ROHIT & 2 other(s)
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Appearance:
MR VAIBHAV N SHETH(5337) for the Appellant(s) No. 1
MR ANKIT Y BACHANI(5424) for the Defendant(s) No. 1,2
MR VC THOMAS(5476) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 14/12/2022
ORAL JUDGMENT
1. The present appeal is directed against the judgement and award dated 21.06.2017 passed vide Exh.43 by the Motor Accident Claims Tribunal (Auxi) and 3rd Additional District Judge, Anand in Motor Accident Claims Petition No.376 of 2011.
2. The appellant claimed compensation of Rs.5,00,000/- towards his injuries sustained in a Page 1 of 10 Downloaded on : Sat Dec 24 03:15:55 IST 2022 C/FA/3370/2017 JUDGMENT DATED: 14/12/2022 vehicular accident, whereas the Tribunal has awarded compensation of Rs.2,28,422/- with 8% interest from the date of claim petition till realization to be entitled to claim from respondent Nos.1 and 2 jointly and severally and respondent No.3-Insurance Company came to be exonerated.
3. At the outset, learned advocate Mr.Sheth has submitted that the income, which is assessed by the Tribunal at Rs.3,000/- per month is required to be enhanced as per the wages prescribed under the Minimum Wages Act, 1948 since the accident had occurred in the month of July, 2011. It is submitted that as per the Minimum Wages Act, prescribed by the State Government for a period of 01.04.2011 to 30.09.2011, since the petitioner was a labourer, the same would come under the unskilled category and wages should be Rs.4,500/- per month. It is further submitted that the petitioner was admitted in the hospital from 03.05.2011 to 16.05.2011 and thereafter, has been admitted from 11.07.2011 to 21.07.2011 as an indoor patient and hence, the amount awarded towards pain, shock and sufferings is required to be enhanced. Accordingly, he as submitted that actual loss of income, which is awarded by the Tribunal of Rs.9,000/- is also required to be enhanced. He has further submitted that the amount awarded towards rich diet, transportation Page 2 of 10 Downloaded on : Sat Dec 24 03:15:55 IST 2022 C/FA/3370/2017 JUDGMENT DATED: 14/12/2022 charges and attendant charges by the Tribunal of Rs.7,500/- is meager amount, looking to the actual hospitalization done by the appellant as the appellant was hospitalized in 02 hospitals and remained as indoor patient. Finally, it is submitted that as per the clause of the policy, which is at Exh.37, more importantly the notice, the Insurance Company may be directed to pay the amount of compensation and they may recover from the opponents. He has also placed reliance on the deposition of the employee of the Insurance Company recorded below Exh.38 and has submitted that the Tribunal has fallen in error in appreciating the said deposition and hence, it would be the Insurance Company, who should be directed to pay the compensation and subsequently, the Insurance Company may recover the same from the opponents-owners.
4. Per contra, learned advocate Mr.Thomas appearing for the Insurance Company has submitted that the impugned order does not require any interference since the claimant-appellant was travelling in a Tempo along with the driver, which was only meant for one person hence, the Insurance Company rightly cannot be directed by the Tribunal. In support of his submissions, he has placed reliance on the judgement of the Apex Court in the case of Union India Insurance Company Ltd. Vs. Suresh K.K. and Anr., (2008) 11 Page 3 of 10 Downloaded on : Sat Dec 24 03:15:55 IST 2022 C/FA/3370/2017 JUDGMENT DATED: 14/12/2022 S.C.C. 453. Thus, it is submitted that the appeal may not be entertained.
5. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.
6. The issue, which requires consideration is that whether the Tribunal has appropriately awarded the compensation by calculating the income of the appellant as Rs.3,000/- per month and also the compensation towards the head of pain, shock and sufferings and rich diet, transportation charges and attendant charges. Since there was no evidence produced on record with regard to income of the appellant, the income of the claimant was required to be fixed as per the wages fixed under under the Minimum Wages Act, 1948, for the period from 01.04.2011 to 30.09.2011, which is prescribed as Rs.4,500/- towards the unskilled category, since the appellant was doing labour work. Thus, the Tribunal has fallen in error in fixing the monthly income at Rs.3,000/- hence, the same is enhanced to Rs.4,500/- and accordingly, the actual loss of income is also required to be enhanced.
7. The appellant was admitted first at Maruti Hospital, Borsad from 03.05.2011 to 16.05.2011 and thereafter, was admitted at Sanchi Hospital, Page 4 of 10 Downloaded on : Sat Dec 24 03:15:55 IST 2022 C/FA/3370/2017 JUDGMENT DATED: 14/12/2022 Vadodara from 11.07.2011 to 21.07.2011 as an indoor patient. Thus, the petitioner was hospitalized for a period of 13 days and thereafter, for 10 days i.e. total period of 23 days. The amount awarded towards pain, shock and sufferings by the Tribunal as Rs.10,000/- is meager and hence, the same is enhanced to Rs.25,000/-. The compensation awarded by the Tribunal towards special diet, transportation and attendants of Rs.7,500 is also required to be enhanced to Rs.15,000, as the petitioner has been hospitalized in 02 hospitals. Accordingly, the compensation is enhanced from Rs.2,28,422 to Rs.3,10,502/-.
8. In view of the above, the claimant is entitled for the following amount as compensation:
Amount awarded Particulars after enhancement (In Rs.) Future Loss of Income 1,65,240.00 Actual Loss of Income 13,500.00 Pain, Shock and Suffering 25,000.00 Special Diet, Transportation and 15,000.00 Attendants Medical Expenses 91,762.00 Total 3,10,502.00 Amount awarded by the Tribunal 2,28,422.00 Difference amount 82,080.00 Page 5 of 10 Downloaded on : Sat Dec 24 03:15:55 IST 2022 C/FA/3370/2017 JUDGMENT DATED: 14/12/2022
9. The second contention raised by the learned advocate Mr.Sheth with regard to liability of payment of the compensation by the Insurance Company and thereafter, to recover the same from the opponent Nos.1 and 2 is concerned, does not merit acceptance. The fact, which is established from the evidence on record is that the appellant was travelling in the Tempo sitting with the driver. The Tempo was having one seat and accordingly, a perusal of the policy at Exh.37 reveals that the policy prescribes premium of Rs.100/-, which has been paid for driver-cum- owner and Rs.25/- has been paid towards workmen compensation to employee-1. Unquestionably, the appellant will fall under neither of these category since he was travelling in the Tempo having seating of driver only, for which Insurance Company was issued. The appellant cannot equate himself to employee-1, which has been mentioned in the policy and premium of Rs.25/- is paid in the policy since the same is meant to the driver of Tempo.
10. At this stage, it would be apposite to refer to the judgement of the Apex Court in the case of Suresh K.K. (supra), which reads as under:
4. Section 147(b) (i) reads as under :
``(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his Page 6 of 10 Downloaded on : Sat Dec 24 03:15:55 IST 2022 C/FA/3370/2017 JUDGMENT DATED: 14/12/2022 authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.''
5. Section 147 provides for mandatory insurance. The policy of insurance in terms of the said provision must be in relation to the person or classes of person specified in the policy sought to be insured.
The insurance would be against any liability which the insured incurs.
The insurance policy should, inter alia, be in respect of death or bodily injury of the person carried in the vehicle. Such person may be the owner of the goods or his authorised representative. The High Court, therefore, may be correct that the owner or the goods would be covered in terms of the said provision.
But the question which has not been adverted to by the High Court is as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. The purpose for which the provision had to be amended by Act No. 54 of 1994 was to widen the scope of the liability of the insurance company.
It is now well settled that the term `any person' envisaged under the said provision shall not include any gratuitous passenger.
(1) (National Insurance Co. Ltd. v. Balhit Kaur (2) SCC 1).
If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved. The Tribunal and the High Court, therefore, in our considered opinion, should have held that the owner Page 7 of 10 Downloaded on : Sat Dec 24 03:15:55 IST 2022 C/FA/3370/2017 JUDGMENT DATED: 14/12/2022 of the vehicle is guilty of the breach of the conditions of policy.
The question which arises for our consideration, however, is keeping in view the fact that the accident took place on or about 13.08.99, and further in view of the fact that the claimant was a coolie worker as to whether he would be in a position to realise the dues from the owner of the vehicle. We think not.
Keeping in view the aforementioned facts and circumstances into consideration, we are of the opinion that with a view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realise the same from the owner of the vehicle. Such a direction would, in our opinion, serve the ends of justice."
11. The Apex Court has held that if a person is travelling in a capacity other than the owner of the goods, the insurer would not be liable, as per section 147 of the Motor Vehicles Act, 1988. It is further held that if the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance and in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat since no other person - whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver in violation of the condition of the contract of insurance. The Apex Court has specifically held that owner of the vehicle is guilty of breach of conditions of the policy and Page 8 of 10 Downloaded on : Sat Dec 24 03:15:55 IST 2022 C/FA/3370/2017 JUDGMENT DATED: 14/12/2022 hence, the insurer cannot be held to be liable for that.
12. The appellant has mainly asserted on the "Notice", which has been incorporated in the insurance policy, which reads as under:
"The insured is not indemnified, if, the vehicle is used or driven otherwise than in accordance with this schedule. Any payment made by the company by reason of wider terms appearing in the Certificate in order to comply with the Motor Vehicles Act, 1988 is recoverable from the Insured. See the clause headed "AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY".
For legal interpretation, english version will hold good."
13. The provision of the aforesaid notice can only be applicable in case of legality and not illegality. The appellant was not supposed to travel in tempo, where the driver can only be allowed. The driver was not supposed to share his seat with the appellant. Hence, the Insurance Company cannot be held liable for paying any compensation de hors the policy. Accordingly, this Court does not find any illegality or perversity in the order passed by the Tribunal exonerating the Insurance Company.
14. Interest @ 6% on the aforementioned enhanced amount shall be paid from the date of claim application. Differential amount shall be deposited before the Tribunal within a period of 30 days from the date of receipt of this order Page 9 of 10 Downloaded on : Sat Dec 24 03:15:55 IST 2022 C/FA/3370/2017 JUDGMENT DATED: 14/12/2022 and on such deposit, enhanced amount shall be disbursed to the claimants.
15. The present appeal is partly allowed.
16. Record and proceedings to be sent back.
Sd/- .
(A. S. SUPEHIA, J)
NVMEWADA
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