Gujarat High Court
New India Assurance Co. Ltd vs Heirs And Legal Representavies on 15 March, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/1571/2002 JUDGMENT DATED: 15/03/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1571 of 2002
With
R/FIRST APPEAL NO. 1572 of 2002
With
R/CROSS OBJECTION NO. 351 of 2022
In
R/FIRST APPEAL NO. 1572 of 2002
With
R/CROSS OBJECTION NO. 352 of 2022
In
R/FIRST APPEAL NO. 1571 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
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 or any order made thereunder ?
==========================================================
NEW INDIA ASSURANCE CO. LTD
Versus
Page 1 of 18
Downloaded on : Fri Apr 05 20:59:03 IST 2024
NEUTRAL CITATION
C/FA/1571/2002 JUDGMENT DATED: 15/03/2024
undefined
HEIRS AND LEGAL REPRESENTAVIES & ORS.
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
for the Defendant(s) No. 3
MR KIRTIDEV R DAVE(3267) for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5,1.6
RULE SERVED for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/03/2024
ORAL JUDGMENT
1. Both the First Appeals have been raised by the New India Assurance Co. Ltd., and against those appeals Cross Objections have been filed by the claimants as heirs of the deceased, challenging the common judgment passed on 19.02.2002 by Motor Accident Claims Tribunal (Auxi.) Surendranagar in M.A.C.P. Nos.737 of 1991 and 738 of 1991.
2. Learned advocate Mr. Vibhuti Nanavati for the Insurance Company referring to the facts of the case and the reasons assigned by the Tribunal, submitted that the date of accident is 02.06.1991, which is prior to the amendment in Page 2 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined section 147 of the Motor Vehicles Act, 1988 (for short 'M.V. Act'), which came into force vide effect from 14.11.1994, and, therefore stated that it is a case pre-amendment, and has to be dealt accordingly, in view of the observation of the Tribunal, that the deceased and others were travelling as illegal passengers in the Truck. The F.I.R. states that it was marriage party, which was travelling towards Kachchh. 2.1 Advocate Mr. Nanavati submitted that the Tribunal has relied on the judgment of New India Assurance Co. Vs. Shri Satpal Singh, reported in (2000) 1 SCC 237, while observing that the judgment of Satpal Singh (supra) was referred to larger bench. Advocate Mr. Nanavati submitted that the fact was on record that the judgment of Satpal Singh (supra) was for consideration of larger bench, and, therefore till the final decision, the Tribunal has followed the judgment of Satpal Singh (supra) and has passed the Page 3 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined judgment.
2.2 Advocate Mr. Nanavati submits that the larger bench in the case of New India Assurance Co. Ltd. Vs. Asha Rani and Ors., reported in (2003) 2 SCC 223, has decided that the decision in Satpal Singh (supra) has not laid down the law correctly and, therefore, it was overruled. 2.3 Advocate Mr. Nanavati has also placed reliance on the judgment of this Court dated 29.03.2022 in First Appeal No.4550 of 2009 with First Appeal No.2188 of 2010 and First Appeal No.2189 of 2010, where the Division Bench of this Court was seized of the matter. Mr. Nanavati stated that the judgment of Asha Rani (supra) was taken into consideration and following the ratio, exonerated the Insurance Company making the Insurance Company entitled to recover the claim amount with interest from the claimants. Page 4 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024
NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined 2.4 Advocate Mr. Nanavati has also referred to a judgment of National Insurance Co. Ltd. VS. Rattani & Ors., reported in (2009) 2 SCC 75, where it was a case of bride party travelling in Truck, allegedly transporting goods received from the bride side, where it was held that there was no gift articles in the vehicle concerned, and the victims of the accident were travelling as gratuitous passengers.
3. Learned advocate Mr. Kirtidev R.Dave for the claimants submitted that two sets of facts came on record, where it has been stated that the deceased were travelling as labourers on the truck, by Exh.43 the deposition of the claimants, which is required to be believed, and, therefore submits that the risk would be covered, as the policy covers the risk of driver, cleaner and third party and six labourers.
3.1 Advocate Mr. Dave submitted that the Page 5 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined deceased were travelling in the Truck, as they were going from village Dadodi to Halvad for unloading earth, and Chakobhai Madabhai at Exh. 43, had stated that six labourers were travelling in the Truck, which included his wife, and during the return route the truck turned turtle, and in the accident three of them died; his wife also died at the place of accident.
4. The accident took place on 02.06.1991 at about 16:00 hours on Sara-Halvad Road. The Truck No.GTY-7111 is involved vehicle. The Tribunal has referred to the facts of the case, and has relied upon Exh.37, the FIR, to note that Truck was in full speed and had roll down the road and turned turtle. There were about fifty persons, who were travelling in a marriage party, and most of them were injured, and three died as had come below the Truck. The persons, who died were Hira W/o Chaturbhura, Lila W/o. Chako Madabhai and Punja Talsi.
Page 6 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024
NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined 4.1 The learned Tribunal has observed that in the corss-examination of Chakobhai Madabhai, at paragraph No.5, it has come on record that Fula Mohan and Thakkar C.Ratna had married, and the marriage was in an area at Kachchh, and had affirmed that the marriage party had travelled in his Truck, and he had stated that almost about 25 to 50 people of his village must have travelled. He had also affirmed that when the Truck had started for Kachchh, taking the marriage party from his village, on the road it had turned turtle, and in that accident, three of the persons from his village died and 17 were injured. He affirmed death of three persons, but has shown his ignorance of injury to 17 persons, and admitted that one of the person died was his wife. He had also affirmed that when the Truck was going taking the marriage party, there were about total about 50 persons in the Truck. Page 7 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024
NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined 4.2 The Tribunal, thus, on the basis of the on the basis of the evidence concluded that the case of deceased travelling in the Truck as labourers stands falsified. The learned Tribunal, thus, considered them as illegal passengers, and taking into consideration Exh.54 - the insurance policy observed, that it covered the risk of Truck driver, cleaner and six labourers, except that it does not cover risk of any other person. The learned Tribunal observed that there was no contractual liability of the insurance company to pay the compensation, and in view of the provisions of section 147(1)(c), there was no liability to cover the risk. The learned Tribunal, thus, relying on the judgment of Satpal Singh (supra) had allowed MACP No.737 of 1991 by ordering compensation of Rs.1,40,000/- at the rate of 9% per annum, and in MACP No.738 of 1991 ordering compensation of Rs.1,67,000/- at the rate of 9% per annum.
Page 8 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024
NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined
5. The observation made by the Tribunal with regard to the accident considering the persons travelling in the truck as illegal passengers, requires no interference. This Court also concludes in accordance to the evidence on record that deceased were illegal passengers, they were travelling in a marriage party, were not labourers on the vehicle.
5.1 The Tribunal had allowed the petitions placing reliance on the judgment of Satpal Singh (supra), as has been referred by learned advocate Mr. Nanavati that in case of Asha Rani (Supra), the Hon'ble Supreme Court has clearly laid down that it is not a good law and the judgment was overruled.
5.2 In Asha Rani case (supra), the Hon'ble Supreme Court, while comparing the provisions under section 147 of the M.V. Act, prior to the amendment vis-a-vis the amended provision of Page 9 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined section 147 of the M.V. Act, observed in paragraph nos.25 to 27 as under:
"25. Section 147 of 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage'.
26. In view of the changes in the relevant provisions in 1988 Act vis-
a-vis 1939 Act, we are of the
opinion that the meaning of the
words "any person" must also be
attributed having regard to the
context in which they have been used i.e. 'a third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any Page 10 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.
27. Furthermore, sub-clauses (i) of clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place."
5.3 In the above referred paragraphs, the Hon'ble Apex Court has clearly observed that the meaning of the word "any person" must also be attributed having regard to the context in which Page 11 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined they have been used. Thus, keeping in view the provision of M.V. Act, 1988, the Hon'ble Apex Court was of an opinion that as the provision do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefore. Hence, considering sub-clause (i) of clause (b) of sub- section (1) of Section 147, which lays down the liability, gets incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in public place, it was found to express that sub-clause (ii) deals with the liability, which may be incurred by the owner of the vehicle against the death or of bodily injury to any passenger of public service vehicle caused by or arsing out of use of the vehicle in public place, and, thus had observed that the owner of Page 12 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined the vehicle carrying passenger must pay premium for covering the risk of the passenger, and the liability other than limited liability provided for under the Act, is to be enhanced under an insurance policy, additional premium is required to be paid.
5.4 Thus, the ratio laid down in the case of Satpal Singh (supra) was observed, in context of the observation, that for such passengers, the owner of the goods carriage need not take out an insurance policy, which would have deemed to have been covered under the policy, whereof even no premium was required to be paid. It was held that section 149(2) of 1988 Act enables the insurer to raise defence against the claim of the claimants, wherein one of the defence under clause (c) of sub-section (2) of section 149 of the Act, available to the insurer, is that the vehicle in question has been used for the purpose not allowed by the permit under which the vehicle was Page 13 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined used, and such statutory defence available to the insurer, would be obliterated in view of the decision in Satpal Singh case (supra), hence, it was observed that the judgment of Satpal Singh (supra) does not lay down the law correctly, and, thus, was overruled.
6. The fact of the case, as has been proved before the Tribunal was that about 50 persons were travelling in the Truck, as marriage party and three of them died.
7. In National Insurance Co. Ltd. VS. Rattani & Ors. (supra), the Hon'ble Supreme Court has noted the facts about 30-40 persons were travelling in the tempo truck as bride party, and had found that by no stretch of imagination, it could be believed that they were representatives of the owner of the goods, meaning thereby the articles of gifts. Further, on facts admitted there were no gift articles in the vehicle Page 14 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined concerned. The question, which arose for consideration, was whether the word "any person"
would include gratuitous passenger, despite the amendment made in section 147 of the Act by reasons of the Motor Vehicles (Amendment) Act, 1994. The Apex Court by referring to the judgment of Asha Rani (supra), which was followed in National Insurance Co. Ltd. Vs. Baljit Kaur, reported in (2004) 2 SCC 1, noted paragraph-20, which reads as under:
"20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with Page 15 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people."
7.5 It was concluded in the said judgment that the victims of the accident were travelling in the truck as gratuitous passengers, hence, the Insurance Company was not liable to pay the amount of compensation to the claimants.
8. Since Satpal Singh case (supra) was overruled in Asha Rani's case (supra), the impugned judgment fail, as no benefit can be given to the claimants for loss owing to the accident, as laid down in the judgment of National Insurance Co. Ltd. VS. Rattani & Ors. (supra), the deceased were gratuitous passengers, hence, no liability can be laid down on the Page 16 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined insurance company to pay any compensation amount.
9. There is no scope in the cross objections to the reason assigned herein above.
10. Thus, in the result, both the First Appeals are allowed. The Cross Objections are rejected. The common impugned judgment dated 19.02.2002 passed by Motor Accident Claims Tribunal (Auxi.) Surendranagar in M.A.C.P. Nos.737 of 1991 and 738 of 1991 are quashed and set aside.
10.1 The Insurance Company stands exonerated from its liability with the liability falling upon the owner of the vehicle to compensate the claimants. The amount, if lying before the concerned Tribunal, be paid back along with accrued interest thereupon, to the Insurance Company, and, if at all any amount is paid to the claimants, then the Insurance Company is Page 17 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024 NEUTRAL CITATION C/FA/1571/2002 JUDGMENT DATED: 15/03/2024 undefined permitted to recover the same from the owner of the vehicle by filing execution petition. 10.2 Record and Proceedings be sent back to the concerned Tribunal forthwith.
(GITA GOPI,J) Pankaj Page 18 of 18 Downloaded on : Fri Apr 05 20:59:03 IST 2024