Gujarat High Court
Oriental Insurance Co Ltd vs Ramdebhai Devabhai Odedara on 28 January, 2022
C/FA/1529/2015 JUDGMENT DATED: 28/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1529 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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 ?
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ORIENTAL INSURANCE CO LTD
Versus
RAMDEBHAI DEVABHAI ODEDARA & 3 other(s)
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MM BEG(8096) for the Defendant(s) No. 4
MR KARTIK I SONI(2519) for the Defendant(s) No. 1,2,3
MR SM CHUDASAMA(3712) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 28/01/2022
ORAL JUDGMENT
1. The present appeal is filed by Insurance Company under Section 173 of the Motor Vehicles Act, 1988, being aggrieved and dissatisfied with the judgment and award passed in Motor Accident Claims Petition Page 1 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 No. 120 of 2008 by the Motor Accident Claims Tribunal (Main), Porbandar on 03.04.2015, by which the Motor Accident Claims Tribunal has partly allowed the claim petition and has awarded Rs. 1,24, 500/- to the claimants, directing opponent Nos. 1 and 2 to pay the amount of compensation.
2. Brief facts of the case are as under:
2.1. This is a case of the claimants that on 22.08.2008, Vejiben Devabhai Odedara was proceeding from Advana Village in Mahindra Bolero Jeep bearing registration No. GJ-3Y-6850 by paying fare of Rs.
10/- to Nagadiaya Village. When said jeep reached at Nagadiya village, at about 17:00 hrs, she asked the driver-cum-owner to stop the vehicle near her field and when she was trying to come down from the vehicle, the opponent No. 1 drove his vehicle suddenly and thereby she fell down from the vehicle and sustained head injuries. Ultimately she has succumbed to injury received in said accident. 2.2 It is a case in the claim petition that the deceased was 62 years of age at the time of accident and she was hale and hearty. Further, Vejiben was earning Rs. 4,000/- per month by doing agricultural and cattle breeding work, which comes to Rs. 48,000/- yearly. Further, though income stands Rs. 48, 000/- yearly and in view of the provisions of Section 163 A of the Motor Vehicles Act, the income can be considered to Rs. 42,000 /- yearly and due to sudden demise of deceased, the claimants have lost the future income. Thus, the claimants have filed the claim petition under Section 163 A to get the compensation of Rs. 2, 44, 333/- before the Tribunal 2.3. It transpires from the record that Devabhai Karabhai Odedara was joined as legal heir of the deceased. However, he expired during the proceedings before the Tribunal and his name was deleted vide order Page 2 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 passed below Exhibit No. 24. It further transpires from the record that notice was served upon opponent Nos. 1 & 2 and Opponent No 1 has appeared through his advocate. Thereafter, he neither remained present, nor filed any reply, therefore the proceedings are proceeded as ex-parte. The opponent No. 2 - Oriental Insurance Co. Ltd. has appeared through the advocate and filed reply vide Exhibit 16, wherein it is mainly contended that the claim petition is neither genuine nor legal. The monthly income of the deceased was also disputed as stated in the claim petition. Further, it was also disputed that the driver of the vehicle was having valid driving license. Therefore, the Insurance Company prayed to the Tribunal to dismiss the claim petition.
2.4 The Tribunal has framed the issues and has recorded the deposition of applicant No. 1 Ramdebhai Devabhai Odedara at Exhibit 28 and after perusing the documentary evidence i.e Exhibit 29 - FIR, Exhibit 30 - Panchnama, Exhibit 31 - Inquest Panchnama, Exhibit 32
- PM Note, Exhibit 33 - driving license, Exhibit 34 - RC Book, Mark 5/7 copy of Insurance Policy and others, the Tribunal has decided the claim petition by partly allowing the claim of the applicants and awarded Rs. 1, 24, 500/- with 7.5 interest p.a. to the claimants. Hence, the present First Appeal is preferred by the Insurance Company mainly contending that the claim petition under Section 163 is not maintainable, as deceased was earning more than 40, 000/- p.a. and secondly, the deceased was traveling in goods vehicle and the Panchnama of the scene of offense does not support the averments that deceased was traveling with the empty vessels and, therefore, the Insurance Company is not liable to pay any amount of compensation.
3. I have heard learned advocate for the Insurance Company Mr. Rathin P Raval and learned advocate Mr. Kartik I Soni for respondent Nos. 1, 2 and 3 and learned advocate Mr. SM Chudasma for respondent Page 3 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 No. 4, who remained absent at the time of hearing.
4. Mr. Raval has taken this Court to the pleadings of the claimant i.e. claim petition No. 120 of 2008, whereby the claimant himself has averred that the deceased was earning Rs. 48,000/- p.a. merely to claim the compensation under Section 163 A of the Motor Vehicles Act, 1988. The claim is restricted to 40,000 p.a. By considering income of 40,000 p.a. of the deceased, it was also pointed out from the claim petition that it is the say of the claimant that the deceased was traveling in Mahindra Bolero Jeep No. GJ-3Y-6850 by paying rent of Rs. 10/-, therefore, he submitted that since the deceased was traveling in the goods vehicle, Insurance Company is not liable to pay any amount to the claimants. He has also pointed out that the Panchnama as indicates that no goods was recovered at the scene of offense by police, therefore, he submitted that deceased was not traveling with any goods as required under the provisions of Motor Vehicles Act, 1988, and when the deceased was unauthorized passenger in goods vehicle, the liability cannot be fastened on the Insurance Company.
4.1. In view of the provisions of Section 147 and 149 of the Motor Vehicles Act 1988, he has relied on the following judgments, which are as under:
(1) First Appeal Nos. 710, 711 to 713 of 2007 and 3852 of 2008 (United India Insurance Co. Ltd. vs. Minor Mahesh Kanubhai.) (2) Madras High Court-division Bench Bharati AXA General Insurance Co. Ltd. vs. Aandi and Ors.
(3). Gujarat High Court-First Appeal No. 2121 of 2008 (United India Insurance Company Limited Versus Lilaben W/o. Decd. Bhikhabhai Page 4 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 Premjibhai Kathiriya,) (4) Gujarat High Court- First Appeal No. 2032 of 2007 to First Appeal No. 2034 of 2007.
(5) Gujarat High Court-First Appeal No. 458 of 2011 (Oriental Insurance Co Ltd vs. Laxmiben Lakhabai Gadhavi.) (6) (2013) 11 SCC 554 (National V Savitri Devi) (7) First Appeal No. 3274 of 2005 to 3281 of 2005 (National Insurance Co. Ltd. Vs. Sumitra Ben Mangabhai Vasava .) (8) First Appeal No. 3936 of 2009 (United India Insurance Co. Ltd vs. Mohammed Haji Abdulla Decd. Through the Lrs & 6.) (9) First Appeal No. 2595 of 2002 To 2605 of 2002 (Oriental Insurance Co Ltd. Versus Lilaben Sursangbhai ) (10) First Appeal No. 913 of 2011 (Oriental Insurance Company Limited Versus kaminiben Wd/o Ashokbhai Chandrashankar Vyas) 4.2 All the above judgments were considered by the Coordinate-
Bench of this Hon'ble Court and has allowed the appeal filed by the Insurance Company. Therefore, learned advocate Mr. Raval submitted that the appeal deserves to be allowed and of course, whatever amount is received by the claimants, will be recovered by the Insurance Company.
5. Per contra, learned advocate for the claimants has submitted that the impugned judgment and award passed by the Tribunal is just and proper as the Tribunal can not consider any defence qua the liability of the Insurance Company as the deceased was traveling in the goods Page 5 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 vehicle and the offense recorded by the Tribunal after considering various judgments and more particularly, the judgment rendered in the case of Deepal Soni vs. United Insurance Co. Ltd., (AIR 2004 Supreme Court 2107) and in the case of National Insurance Company vs. Swaran Singh (2004 ACJ 1 (SC). Hence, the present appeal deserves to be dismissed as the Tribunal has rightly granted the compensation to the claimants under Section 163 of the Motor Vehicles Act.
6.1. I have perused the record and proceedings of the Tribunal. I have also gone through averments made in the appeal memo and also findings given by the Tribunal in the impugned judgment. I have also perused the insurance policy, which indicates as under:
"Goods carrying commercial vehicle policy . The policy on the bottom side states under "limitations" - "Use only for carriage of goods within the meaning of Motor Vehicles Act. The policy does not cover.......(c) carrying passengers in vehicles except employees not exceeding the number permitted in the registration document and coming under purview of WC Act 149 1923."
6.2 In view of the provisions of Section 147 and 149 of the Motor Vehicle Act, I found that the contention raised by the appellant- Insurance Company in the present appeal is valid one as the Mahindra Bolero, is a goods vehicle. It is also found from the Panchnama that this is an offence which is exhibited at Exhibit 30 that no goods are found from the scene of offence, therefore, it can easily be inferred that the deceased was not carrying any goods with her. It was also found from the claim petition itself that it is the case of the claimants that deceased was Page 6 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 traveling in the goods vehicle as passenger by paying rent of Rs. 10/- to the driver of the Mahindra Bolero, therefore, deceased can be considered as unauthorized passenger traveling in goods vehicle and, therefore, submission made by the learned advocate Mr. Raval that it is a breach of conditions of policy and, therefore, the liability cannot be fastened on the Insurance Company more particularly, if we peruse the proceedings in the claim petition, claimants themselves have averred that the deceased was earning Rs. 48,000/- p.a. at the time of accident and, therefore, though they have stated that the claim of Rs. 40,000/- p.a cannot be acceptable as actual income of deceased and the petition could not have been filed under Section 163 A of the Act and all these aspects are supported by the judgment cited at the bar. I have examined the ratio of the above mentioned judgments cited by learned advocate Mr. Raval in support of his contentions about the breach of terms and conditions of the insurance policy, therefore, liability for such payment could not be fastened on the Insurance Company.
7. It is beneficial to reproduce some of the judgments for ready reference.
"6. In the case of Minor Mahesh Kanubhai (supra), this Court has observed in paragraphs No.54, 55 and 56 as under:-
54. In the light of the above discussion, this court is of the view that the Claims Tribunal was not justified in holding the appellant -
insurance companies to be jointly and severally liable to pay the compensation awarded to the claimants after coming to the conclusion that the insurance company is not liable to indemnify the owner, in view of the fact that the victims were gratuitous passengers in the offending vehicle. While it is true that the Page 7 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 Claims Tribunal has in the body of the judgment permitted the insurance company to recover the amount paid towards compensation from the owner after treating the award as a decree in favour of the insurance company, in view of the fact that the passengers were gratuitous passengers in the offending vehicle, the provisions of subsection (4) and (5) of section 149 of the Act would not be attracted and, therefore, the Claims Tribunal had no power to issue such directions to the insurance company to first pay and thereafter recover the amount from the owner. 55. For the foregoing reasons, the appeals succeed and are accordingly allowed to the following extent. The impugned awards passed by the Claims Tribunal in all the appeals shall stand modified to the extent that instead of the opponents being jointly and severally liable to pay the compensation awarded under the said award, it shall be only the driver and the owner of the vehicle who shall be so liable and the insurance company shall stand exonerated from such liability
56. A perusal of the record reveals that in First Appeals No.710/2007 to 713/2007, the entire awarded amount has been deposited with the Claims Tribunal. However, no amount appears to have been disbursed to the claimants. The appellant - insurance company shall be entitled to refund of the entire amount deposited by it with the interest that may have accrued thereon. The Claims Tribunal is accordingly, directed to release the balance amount lying in the fixed deposit in favour of the insurance company within two months from Page 8 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 the date of receipt of a copy of this order with all accrued interest. There shall be no order as to costs. 58. In First Appeal No.3852/2008, it appears that the insurance company had deposited the awarded amount before the Claims Tribunal and vide order dated 24th September, 2008, this court had directed the Claims Tribunal to pay 30% thereof to the claimant - Mahendrabhai by Account Payee Cheque and had directed the rest of the amount to be invested in a fixed deposit in any nationalised bank in the name of the claimant initially for a period of three years with cumulative interest with periodical renewal till the appeal is finally decided by the court. Insofar as the amount which is lying with the Claims Tribunal is concerned, the appellant - insurance company shall be entitled to refund thereof together with the interest that may accrue thereon. The respondent No.1 -
claimant is directed to return the amount received by him pursuant to the interim order passed by this court within three months from the date of receipt of a copy of this judgment as it is well-settled law that any interim order passed in an appeal will necessarily abide by the final result of the appeal and as and when the claimant so deposits the amount, the Claims Tribunal shall release it in favour of the insurance company. Meanwhile, the Claims Tribunal is directed to release the balance amount lying in the fixed deposit in favour of the insurance company within two months from the date of receipt of a copy of this order with all accrued interest. There shall be no order as to costs. "
Page 9 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 "8. In the case of Lilaben Wd/o. Bhikhabhai Premjibhai Kathiriya (supra), this Court has observed in para-16 as under:-
16. It appears that pursuant to an interim order earlier passed in this appeal, the Insurance Company has deposited the awarded amount before the Tribunal; and the Tribunal below has already permitted the claimants to withdraw 30% of the amount deposited by the appellant and balance 70% is lying in deposit in the Tribunal in a fixed deposit. This appeal being allowed, I direct the claimants to return the amount received pursuant to the interim order within three months from today as it is wellsettled law that any interim order passed in an appeal will necessarily abide by the final result of the appeal and as and when the claimant so deposits the amount, the Tribunal shall release it in favour of the Insurance Company. Meanwhile, the Tribunal is directed to release the balance amount lying in the Fixed Deposit in favour of the Insurance Company within two months from today with all accrued interest. No Costs "9. In the case of Laxmiben Lakhabhai Gadhavi (supra), this Court has observed in para - 6, 7 and 8 as under:-
6. The Supreme Court in the case of New India Assurance Co. Ltd. Vs Asha Rani and Ors (2003) 2 SCC 223 has held as under in para 9 :
"9. In Satpal's case (supra), the Court assumed that the provisions of Section 95(1) of Motor Vehicles Act, 1939 are identical with Section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was necessary for the insurer to insure against the Page 10 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 owner of the goods or his authorised representative being carried in a goods vehicle.
On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amended Act of 1994 is examined, particularly Section 46 of Act 6 of 1991 by which expression 'injury to any person' in the original Act stood substituted by the expression 'injury to any person including owner of the goods or his authorised representative carried in the vehicle' the conclusion is irresistible that prior to the aforesaid Amendment Act of 1994, even if widest interpretation is given to the expression 'to any person' it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of clause 46 also states that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the Insurance Policy. It is no doubt true that sometimes the legislature amends the law by way of amplification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression 'including owner of the goods or his authorised representative carried in the vehicle which was added to the pre-existed expression 'injury to any person' is either clarificatory or amplification of the preexisting statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and Page 11 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The judgment of this Court in Satpal's case, therefore must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury."
7. The Supreme Court subsequently followed it in the case of Oriental Insurance Company Ltd. Vs Brij Mohan and ors (2007) 7 SCC 56.
8. The aforesaid proposition of law expounded by the Supreme Court makes it vividly clear that Insurance Company would not be liable to pay compensation in case where the victim was a gratuitous passenger in the goods vehicle. I am, therefore, of the view that the Tribunal ought not to have fastened the liability of payment of compensation on the appellant-Insurance company as the deceased was gratuitous passenger in the offending vehicle. The impugned judgment and award of the Tribunal, therefore is required to be entertained to a limited extent of exonerating appellant-Insurance company from its liability of payment of compensation to the claimants"
"10. In the case of Sumitraben Mangabhai Vasava (supra), this Court has observed in paras no.7 to 9 as under:-
7. The issue involved in these appeals is no more res integra. It is by now well settled Page 12 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 legal position of law that once learned Tribunal founds a person travelling in goods carriage vehicle as pasenger and not as an owner of goods or its representative, in such situation, insurer of goods carriage vehicle is not liable to pay compensation and learned Tribunal cannot fasten the liability upon the insurer to pay compensation and then to recover it from its insured. On going through the particulars of the policy, it is noticed that no additional premium is being levied by the Insurance company for coverage of risk of any passenger travelling upon the vehicle involved in the accident. The risk of passenger travelling in goods carriage vehicle is not covered under Motor Vehicle Act, 1988. The Act has not envisaged risk of passenger to be covered under Section 147 of the said Act and law in this regard has been declared by the Hon'ble Apex Court in a case of Asha Rani (supra) and reiterated in other decisions. It is an admitted fact that injured claimants were travelling as passengers in order to attend marriage party from Kundiamba to Navagam in the said goods carriage vehicle insured with the appellant insurance company. This fact is clearly forthcoming even from the respectief petitions which came to be filed by the claimant wherein they have clearly mentioned that they were travelling upon the aforesaid Tempo as passengers to attend the marriage party alongwith their goods. The same fact have been narrated in their respective affidavits which came to be filed during the course of adducing oral evidence. In the cross examination, all claimants have admitted taht they were passengers who were travelling upon the aforesaid goods carriage in order to attend the marrige party."
8. FIR produced at Exh: 49 also discloses that soon after the accident one Navalbhai Page 13 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 Vasva resident of navagam, Taluka Dediapada, District Narmada, lodged complaint before the Police indicating that the marriage of his son Suresh was scheduled on 24th May, 1998, and he had hired tempo No.GJ-9-V-1639 for attending marriage party at Navagam. While they were travelling upon the aforesaid tempo, the driver was driving in a very hectic speed and in the result, tempo turned turtle and they sustained inujuries.
9. In view of the aforesaid factual position and in light of the pleadings came to be made by the respective claimants and in light of the affidavit filed by the respective claimants, this Court is of the opinion that the appellant -
Insurance Company is not liable to pay compensation and the learned Tribunal has committed error of law in directing the appellant - Insurance Company to deposit the awarded amount and then to be recovered from its insured - owner of the goods carriage vehicle.
"11. In the case of Savitri Devi and others (supra), the Hon'ble Supreme Court has observed in paras-8 to 13 as under:-
8. After having gone through the award of the Claims Tribunal and the judgment and Order passed by the learned Single Judge of the High Court, we are not able to understand as to how it has been found that the Appellant-
Insurance Company can still be held liable to pay the amount of compensation as there has been a categorical finding by both the Courts recording that the vehicle in question was insured only as "Goods carrying Vehicle". The custom of carrying barat in the village on the said truck will not be sufficient to hold the Appellant-Insurance Company liable to pay the amount of compensation. Admittedly, Page 14 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 Appellant-Insurance Company would not know unless the accident takes place as to for what purpose the vehicle in question was being used. The terms and conditions of the Insurance Policy are very clear and categorical and it creates a specific bar on carrying of any passengers, except the employees other than the driver, not exceeding six (6) in number, who should also come under the purview of Workman's Compensation Act.
9. The specific case of the claimants was that the barat was being taken in the said open truck on 12.11.1996 when the accident had taken place. Thus, according to us, it clearly violates the terms and conditions of the policy.
10. Dealing with similar circumstance, this Court has held in ACJ 2005 (2) 721 titled as "National Insurance Company Ltd. v.
Bommithi Subbhayamma and others" as under: (SCC p.246, paras 9-11)
9.... ....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 5 respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.
10. The same view was reiterated in Page 15 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 National Insurance Company Ltd. v. Challa Bharathamma, 2004 ACJ 2094 (SC); Pramod Kumar Agrawal v. Mushtari Begum, 2004 ACJ 1903 (SC) and also in National Insurance Company Ltd. v. V. Chinnamma, 2004 ACJ 1909 (SC).
11. In view of the aforementioned authoritative pronouncements of this Court, the impugned judgment of the High Court cannot be sustained which is set aside accordingly. This Appeal is allowed. We, however, make it clear that the claimants-respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Vehicle Accidents Claims Tribunal from the owner of the vehicle. No costs.
11. Similar view has been reiterated in (2009) 2 SCC 75, titled as "National Insurance Company Limited v. Rattani and others", paragraph 14 and 15 of which are reproduced hereunder:
14. The question as to whether burden of proof has been discharged by a party to the is or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers
15. As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the Appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can Page 16 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 be looked into for the aforementioned purpose.
12. In light of the aforesaid judgments, we have no doubt in our minds that the impugned judgment and order of teh learned Single Judge dated 28.7.2005 cannot be sustained. The same is hereby set aside and quashed. No liability can be fastened on teh Appellat - Insurance Company. The appeals of teh Appellant - Insurance Company are allowed to this extent.
13. However, it is clarified that if any amount has already been paid by the Insurance Company, it shall not be permissible for it to recover the amount from the claimants. It is also clarified that the claimants, in any case, would be entitled to recover the balance amount of the compensation awarded to them vide impugned judgment and Order of the learned Single Judge dated 28.7.2005 from the estate of the deceased owner. The appeals are allowed to this extent. The award and the finding of the learned Single Judge fastening the liability on the Appellant - Insurance Company is set aside. The parties to bear their own costs "12. In the case of Mohammed Haji Abdulla Decd. Through The Lrs and others (supra), this Court has observed in para-10 and 11 as under:-
"10. Now, so far as impugned judgment and award passed by the learned Tribunal holding insurer liable to pay compensation is concerned, it is required to be noted that though learned Tribunal has specifically observed and held that deceased was traveling as gratuitous passenger on the goods vehicles at the time of accident, learned Tribunal has held insurer liable to pay compensation solely on the ground that the original claim petition has been filed under Section 163 of the Motor Vehicles Act. The aforesaid cannot be sustained. In light of the observations made herein above and Page 17 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 considering Section 149(2) of the Motor Vehicles Act and it is held that insurer can raise statutory defence which may be available to it under Section 149(2) of the Motor Vehicles Act and once it is held that the deceased was traveling as gratuitous passenger on the goods vehicle at the time of accident considering the subsection(2) of Section 149 of the Motor Vehicles Act, the insurer cannot be held liable to pay compensation as in such a situation the insurer can avoid the liability to pay the compensation as the insurer is not statutorily liable to pay the compensation as the deceased was traveling as a gratuitous passenger on the goods vehicle at the time of accident.
10.1 Under the circumstance, the impugned judgment and order passed by the learned Tribunal holding the appellant - insurer liable to pay the compensation or indemnify the award cannot be sustained and same deserves to be quashed and set aside.
11. In view of the above and for the reasons stated above, appeal succeeds. The impugned judgment and award in so far as holding the appellant - insurer - original opponent no.2 - United India Insurance Company Limited liable to pay the compensation to the original claimants for the death of deceased is hereby quashed and set aside. On allowing the present appeal and quashing and setting aside the impugned judgment and award passed by the learned Tribunal so far as appellant Insurance Company is concerned, the appellant Insurance Company is concerned, the appellant Insurance Company shall be entitled to get back the amount which the appellant had deposited pursuant to the Page 18 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 impugned judgment and award passed by the learned Tribunal. However, it is required to be noted that pursuant to the interim order passed by this Court dated 5.10.2009 passed in Civil Application No. 10896 of 2009 in First Appeal No. 3936 of 2009 the original claimant no.1 - Manjulaben wd/o Maheshbhai Ranchhodbhai Rohit (Chamar) was permitted to withdraw 30% of the amount and rest of the amount was directed to be invested in the name of original claimants in any Nationalized Bank but FDRs shall remain with Nazir of Claims Tribunal, Ahmedabad City, which require periodical renewal till First Appeal is decided by this Court and the original claimant no.1 - Manjulaben wd/o Maheshbhai Ranchhodbhai Rohit (Chamar) was allowed to receive the monthly interest from the said FDR. By now more than 7 years have passed and original claimant no.1 - Manjulaben wd/o Maheshbhai Ranchhodbhai Rohit (Chamar) must have spent entire 30% which was permitted to withdraw and even periodical interest for their maintenance, it is observed that amount already withdrawn by the original claimants may not be recovered from them by the Insurance Company, however interest shall be entitled to get back the said amount from the owners of the vehicle involved in the accident. However, the appellant - Insurance Company shall be entitled to get back remaining amount from the Fixed Deposit Receipts lying with the Nazir of the Tribunal which were directed to be invested in the name of original claimants and which were directed to be kept in the Nazir, Ahmedabad City, without filing Execution Petition and the Tribunal is directed to pay the said amount to the appellant - Insurance Company on production of certified copy of the present judgment and order. With this, present Page 19 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 appeal is allowed. No costs
13. In the case of Bimlaben Wd/o. Shankar Chunilal Pandit (supra), this Court has observed in para-12 and 14 as under:-
12. The sole surviving question is of the limit of liability of the Insurance company. In absence of any evidence at all in this regard, it is simply not possible to hold that the liability of the Insurance company was limited regarding the risk of passengers. As noted, the cover note demonstrated payment of additional premium for covering risk of the passengers. However, this would not automatically mean that there was any limit of liability of the Insurance company. If the Insurance company desired to establish this fact, the same had to be done either by producing the original policy or some reliable, irrefutable evidence which would link the quantum of additional premium with the limit of liability of the Insurance company. On the mere ipse dixit of the Insurance company, such limit of liability cannot be believed. As noted, the Insurance company failed to produce the original policy on a somewhat curious ground that on account of frequent shifting of the branch office, entire record was lost. The claimants hotly disputed this and contend that the policy was held back from the Tribunal since it provided for unlimited liability.
14. Coming to the question of pay and recover, in decision in case of United India Insurance CompanyLimited v. Laxmamma (supra), the Supreme Court left the Insurance company to follow its remedies for recovery against the owner. I would also provide the same formula.
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14. In the case of Laxmamma (supra), the Hon'ble Supreme Court has observed in para-20 and 21 as under:-
19. In our view, the legal position is this:
where the policy of insurance is issued by an authorized insurer on receipt of cheque towards payment of premium and such cheque is returned dishonoured, the liability of authorized insurer to indemnify third parties in respect of the liability which that policy covered subsists and it has to satisfy award of compensation by reason of the provisions of Sections 147(5) and 149(1) of the M. V. Act unless the policy of insurance is cancelled by the authorized insurer and intimation of such cancellation has reached the insured before the accident. In outher words, where the policy of insurance is issued by an authorized insurer to cover a vehicle on receipt of the cheque paid towards premium and the cheque gets dishonoured and before the accident of the vehicle occurs, such insurance company cancels the policy of insurance and sends intimation thereof to the owner, the insurance company's liability to indemnify the third parties which taht policy covered ceases and the insurance company is not liable to satisfy awards of compensation in respect thereof.
20. Having regard to the above legal position, insofar as facts of the present case are concerned, the owner of the bus obtained policy of insurance from the insurer for the period April 16, 2004 to April 15, 2005 for which premium was paid through cheque on April 14, 2004. The accident occurrd on May 11, 2004. It was only thereafter that the insurer cancelled the insurance policy by communication dated May 13, 2004 on the ground of dishonour of Page 21 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 cheque which was received by the owner of the vehicle on May 21, 2004. The cancellation of policy having been done by the insurer after the accident, the insurer became liable to satisfy award of compensation passed in favour of the claimants.
21. In view of the above, the judgment of the High Court impugned in the appeal does not call for any interference. Civil Appeal is dismissed. However, the insurer shall be at liberty to prosecute its remedy to recover the amount paid to the claimants from the insured. No order as to costs."
15. Therefore in view of above, present appeal deserves to be allowed and the impugned judgment and award passed by the Tribunal deserves to be modified to the extent that present appellant - Insurance Company is not liable to pay the amount of compensation.
16. In view of above mentioned discussion, the present First Appeal succeeds to the extent that present appellant - Insurance Company is not liable to pay the amount of the compensation as there is breach of terms and conditions of the policy. However, it is required to be noted that pursuant to the interim order passed by this Hon'ble Court dated 30.07.2005, which reads as under.
"Order in First Appeal:
Admit.
Order in Civil Application:
Rule returnable on 29.9.2015. In the meantime and till the returnable date, there shall be a stay against the implementation of the Page 22 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 order impugned on a condition of applicant depositing the entire amount before the tribunal within the period of 8 weeks from today. Out of the amount deposited, 30% of the amount shall be disbursed to the claimant/s subject to condition imposed by the Tribunal and 70% of the amount be invested in long term Fixed Deposit in any Nationalizedv Bank in the name of claimant/s, initially for a period of 3 years and to be renewed thereafter from time to time. The receipt of the Fixed Deposit will remain in the custody of Nazir of the Tribunal."
17. This Hon'ble Court has permitted the original claimants to withdraw 30 % of the amount and rest of the 70 % awarded amount was directed to be invested in favour of the claimants in any nationalized bank for the period of 3 years and which is required to be renewed from time to time. Thereafter, the claimants have received 30 % amount which might have been spent by them and, therefore, in the interest of justice, it is observed that amount already withdrawn by the original claimants, in pursuance of the interim order passed by this Hon'ble Court, shall not be recovered from the claimants by the Insurance Company but the Insurance Company is entitled to get back the remaining amount lying in the fixed deposit receipt lying with the Nazir of the Tribunal, which was directed to be invested in the name of original claimants, while granting interim relief in the present appeal and accordingly, the present appeal is allowed qua the present appellant by modifying impugned judgment and award to the aforesaid extent. It is also directed that the Tribunal shall pay the said amount to the Appellant - Insurance Company, which is lying in the fixed deposit on production of certified copy of the present judgment and order by the appellant.
18. With this observation, the impugned judgment and order passed in M.A.C.P. No. 120 of 2008 is modified by observing as above and holding that the Oriental Insurance Company Ltd. is not liable to pay the Page 23 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022 C/FA/1529/2015 JUDGMENT DATED: 28/01/2022 amount of compensation. Insurance Company can recover the remaining amount of 30 %, which is already paid to the claimants from the owner of the vehicle.
19. The record and proceeding lying before this Hon'ble Court shall be sent back, forthwith, to the concerned Tribunal. The appeal is accordingly allowed, with no order as to costs.
(SANDEEP N. BHATT,J) MANISH MISHRA Page 24 of 24 Downloaded on : Wed Feb 02 20:29:35 IST 2022