Gujarat High Court
Shokat Ahemadnoor Mansuri vs Becharbhaiu Kevalbhai Patel on 12 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2283/2019 ORDER DATED: 12/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2283 of 2019
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SHOKAT AHEMADNOOR MANSURI
Versus
BECHARBHAIU KEVALBHAI PATEL & 3 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR C S SHUKLA(7549) for the Defendant(s) No. 2
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 4
NOTICE NOT RECD BACK for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/02/2024
ORAL ORDER
1. The challenge is given by the injured claimant to the judgment dated 02.04.2018 passed by Motor Accident Claims Tribunal, Dahod, in MACP No.196 of 2013, whereby the owner and the insurance company of the vehicle came to be exonerated.
2. Mr. Hiren M.Modi, learned advocate for the appellant, referring to the judgment of Page 1 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024 NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined Valiben Laxmanbhai Thakore (Koli) Wd/o Late Laxmanbhai Ramsingbhai Thakore (Koli) Vs. Kandla Dock Labour Board, reported in 2021 (4) GLH 77, submitted that when the insurance company receives the premium for owner-cum-driver as well as three employees on the vehicle, then it cannot deny the payment of compensation amount even in case of self negligence of the paid driver.
3. Countering the argument, Advocate Mr. Alkesh N.Shah submitted that the claimant was required to prove the factum of liability covered in the policy to claim compensation, hence, submitted that the Tribunal has rightly exonerated the insurance company.
4. The claimant was a paid driver on the truck bearing Registration No.GJ-20-U-6111, owned by opponent no.3, and on 04.11.2012 at about 2:00 a.m., he was returning from Ahmedabad towards Dahod driving the truck. When he reached village Page 2 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024 NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined Dabhada on Godhra-Dahod Highway, opponent no.1 - driver of S.T. Bus bearing Registration No.GJ-18- Y-7059, came from the opposite side driving the bus in rash and negligent manner and in excessive and uncontrollable speed dashed the bus with the truck, which is stated to be stationed on the side of the road. The applicant sustained serious injuries. A complaint was filed before Limkheda Police Station vide I-C.R.No.117/2012. He was taken to Cottage Hospital, Dahod for treatment and for further treatment was shifted to Nayak Hospital, Dahod.
5. The Tribunal on consideration of the evidence has granted Rs.3,33,705/-, and considered 60% negligence of the bus driver. However, the owner and insurance company of the truck were exonerated for 40% liability on account of negligence attributed to the claimant as a truck driver.
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NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined
6. The insurance policy is on record, Exh.31, of the truck No.GJ-20-U-6111 covering the date of accident of 04.11.2012, for the period between 10.09.2012 to mid-night of 09.09.2013, which is in the name of opponent no.3 - Jitalbhai Nareshkumar Desai as a owner of the vehicle. The schedule of the premium receipt shows that Rs.150/- was accepted covering W.C. to 3 employees.
7. Section 167 of the Motor Vehicle Act, 1988 gives option to move under Workmen Compensation Act, 1923, or under the Motor Vehicle Act, and when the claimant has exercised the option to approach the Tribunal under Motor Vehicle Act, 1988, as provided under section 167, the claim petition is maintainable, and when the premium is accepted for the employees, then insurance company cannot deny the liability as laid down in case of Valiben Laxmanbhai Thakore (Koli) Wd/o Late Laxmanbhai Ramsingbhai Thakore Page 4 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024 NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined (Koli) (supra).
7.1 In case of Valiben Laxmanbhai Thakore (Koli) Wd/o Late Laxmanbhai Ramsingbhai Thakore (Koli) (supra), the full bench of this Court, in paragraph-10, observed as under:
"10. Chapter XI of the Act covers the subject 'Insurance of Motor Vehicles Against Third Party Risks' under section 146(1) of which no person shall use a motor vehicle in public unless there is a valid policy of insurance which complies with the requirements of the chapter. Section 147 provides for mandatory requirements of such insurance policy. It deserves to be noted that as per the provisions of Section 147 r/w 149 of the Act, the risks which are covered are statutorily provided, however, parties may enter into a contract by which the insurer agrees to cover additional risks by charging / payment of additional payment. It Page 5 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024 NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined also deserves to be noted that the policy has a clause which defines the limits of liability in respect of death or bodily injury to any person caused by or arising out of the use of the motor vehicle under section 11(i) of the terms and conditions of the policy. In proviso
(b) to section II (1), which reads as under:
"Except so far as is necessary to meet the requirements of the Motor Vehicles Act, the company shall not be liable in respect of death of or bodily injury to any person in the employment of the insured arising out of and in the course of such employment"
Thus, the insurance policy would cover only the person or classes of persons specified in the policy. Thus, when the Insurance Company accepts the additional premium for legal liability to paid Driver and / or Conductor and / or Cleaner, employed in connection with the Page 6 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024 NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined operation of the insured vehicle, by accepting additional premium as per IMT 28, the Insurance Company shall entail liability of indemnifying and legal liability is created towards paid Driver and / or Conductor and/ or Cleaner. In case when such additional premium is paid, the policy includes following clause:
"In consideration of an
additional premium of
notwithstanding anything to the
contrary contained in the policy it is hereby understood and agreed that the insurer shall indemnify the insured against the insured's legal liability under the Employees Compensation Act 1923 the Fatal Accidents Act, 1855 or at Common Law and subsequent amendments of these Acts prior to the date of this Endorsement in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the Page 7 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024 NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined vehicle insured herein and will in addition be responsible for all costs and expenses incurred with its written consent."
The aforesaid clause therefore, clearly prescribes that it covers the insured against the insured's legal liability under the Employee's Compensation Act, 1923, the Fatal Accidents Act, 1855 or at Common Law. It may be noted that statutory policy would cover liability under the Employee's Compensation Act, 1923 as far as Driver is concerned. By accepting additional premium as per the IMT 28, the same added liability under Common Law and Fatal Accidents Act. Motor accidents liability predates the imposition of this liability under any form of statute and such liability would be part of Common Law till the time it was made a statutory liability." 7.2 By referring to various judgments and the provisions of the M.V. Act, the full bench of this Court has held regarding the liability of Page 8 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024 NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined the Insurance Company, when additional premium is accepted in following terms:
"13. Thus, when the owner of a vehicle pay additional premium and same is accepted by the Insurance Company, liability of the Insurance Company gets extended under the Motor Vehicles Act. Section 147 of the Act clearly prescribes for statutory liability to cover risk of paid Driver and Conductor under the Insurance Policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the Insurance Company. Thus, the risk of paid Driver and Conductor would be covered under the Insurance Policy. Only when the additional premium is not paid, liability would be as per the Employees Compensation Act, 1923 and in such cases, compensation would be computed as prescribed under the Act which is limited to the extent provided under provisions of the Act. However, when owner pays additional premium to cover the legal liability of his Page 9 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024 NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined paid driver and conductor to the Insurance Company, as such, the Insurance Company is enlarging the scope for unlimited liability for payment of compensation, when additional premium is accepted. The liability of the Insurance Company gets extended and it has no right to raise issue of self negligence or otherwise of the such class of the driver of the Insured vehicle. By accepting additional premium as per the IMT 28, the Insurance Company expressed its willingness to extend its liability under the Clause of Legal Liability to the Paid driver and conductor as envisaged under Section 147 of the Act. Thus, in our opinion, Insurance Company has no legal right to avoid its legal liability under the indemnity clause arising from the contract of insurance towards the insured - owner of such classes of vehicles."
7.3 The proposition of law, as laid down in Valiben's case, clarifies that on payment of additional premium by the owner, the liability of Page 10 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024 NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined the owner shifts upon the Insurance Company, and, when owners pays additional premium to cover legal liability of his paid driver and conductor to the Insurance Company, the Insurance company is enlarging the scope for unlimited liability for the payment of compensation, when additional premium is accepted.
8. In view of the proposition of law propounded in Valiben's case, the insurance company thereby liable to pay amount of 40% of the negligence attributed to the claimant amounting to Rs.1,33,482/- at the rate of 7.5%. On deposit of the same, the total amount be paid to the claimant by Account Payee Cheque or by NEFT on proper verification of identity.
9. In view of the above, the appeal is partly allowed. The impugned judgment and award dated 02.04.2018 passed by Motor Accident Claims Tribunal, Dahod, in MACP No.196 of 2013 stands Page 11 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024 NEUTRAL CITATION C/FA/2283/2019 ORDER DATED: 12/02/2024 undefined modified to the aforesaid extent. No order as to costs.
(GITA GOPI,J) Pankaj Page 12 of 12 Downloaded on : Tue Feb 13 20:46:17 IST 2024