Gujarat High Court
Oriental Fire And General Insurance ... vs Aminbhai Pirmohomad Master And Ors. on 28 January, 1986
Equivalent citations: [1989]65COMPCAS148(GUJ), (1986)2GLR234
JUDGMENT J.P. Desai, J.
1. This appeal filed by the insurance company in Motor Vehicle Claim Petition No 9 of 1976 is against that part of the award by which the insurance company as the insurer of the motor cycle is saddled with liability to the extend of Rs 28,500.
2. The facts leading to the filing of the claim petition may be briefly stated as follows :
On February 11, 1975, at about 10 p.m., one motor cycle driven and owned by one Dwarkadas Bhagwanji Bhagat was proceeding on the Billimora-Chikhali road. It was going from Billimora to Chikhali, i.e., from west to east. One autorickshaw driven by one Amin Pirmohomad which was also insured with the same insurance company was proceeding from Chikhali to Billimora, i.e, from east to west. There was a collision between the two vehicles on the said road. Dwarkadas who was driving the motor cycle was injured in this incident, while Babubhai Dahyabhai, who was a pillion rider, was also injured in this incident and he succumbed to the injuries in the hospital on the next day. Dwarkadas filed an application for compensation for injuries sustained by him and for the damage caused to the motor cycle and that was registered as Motor Vehicle Claim Petition No 33 of 1975. The heirs of the deceased, Babhubhai Dahyabhai, filed Claim Petition No 9 of 1976 for compensation for the death of Babubhai. They claimed Rs 1,00,000 as compensation. The claim in the two applications was resisted contending that the driver of the motor cycle, viz., Dwarkadas, and the above (sic) was negligent. The learned Tribunal consolidated both the applications and disposed of the same by a common judgment.
3. The learned Tribunal, for the reasons recorded at para 12 of its judgment, reached the conclusion that the drivers of both the vehicles were negligent and that the share of responsibility could be equally divided between the two. The learned Tribunal assessed the amount of compensation for the death of Babubhai at Rs 57,000. It apportioned the claim and directed that Rs 28,500 should be paid by the insurance company as the insurer of the autorickshaw. It also directed the insurance company as the insurer of the motor cycle to pay an equal amount, viz , Rs 28,500, in to the heirs of the deceasd, Babubhai.
4. Being dissatisfied with the award passed by the learned Tribunal in MAC Petition No 9 of 1976 against the insurance company as the insurer of the motor cycle, this appeal has been filed.
5. The respondents, i.e., the heirs of Babubhai, have filed cross-objections. They have raised a contention in their cross-objections that the Tribunal committed an error in holding that the negligence of each driver was to the extent of 50%. In other words, the respondents raised a contention by the cross-objections that it should be held that there was negligence only on the part of the autorickshaw driver and that there was no negligence on the part of the driver of the motor cycle. Necessary court fees were paid on these cross-objections after this court passed a speaking order on January 6, 1986, negativing the contention of the respondents that court fees were not payable. The respondents also sought for an amendment of the cross- objections and wanted to raise a contention that the Tribunal had committed an error in adopting the multiplier of 10 years and in fixing the datum figure at Rs 650 and in deducting Rs 200 as personal expenses. When the attention of the learned advocate, Mr. B J Shethna, appearing for the respondents, who sought for this amendment, was drawn to the fact that court fees may be required to be paid if this amendment is sought, he did not press for the amendment.
6. The grievance of the insurance company as the insurer of the motor cycle is that the owner of the motor cycle was not made a party to the petition and therefore, no award could have been passed against the insurance company. It is a fact that the owner of the motor cycle, Dwarkadas Bhagwandas, who was himself driving the said vehicle was not made a party to Claim Petition No 9 of 1976. It is clear on the face of it that no award could have been passed against the insurance company in the absence of the owner because the owner is to be indemnified against the award which is likely to be passed against the owner. Mr. B J Shethna, appearing for the respondents, submitted that the insurance company had not taken up taken any such contention either in the written statement or at any stage before the Tribunal and, therefore, the insurance company is not entitled to raise such contention by filing the appeal. He also submitted that such a technical contention should not be permitted to be raised on behalf of the insurance company in the appeal when such a contention was not raised before the Tribunal.
7. Mr. Shethna drew our attention to a decision of the Supreme Court reported in State of Maharashtra v Ramdas Shrivinvas Nayak, AIR 1982 SC 1249, in support of his submission. We fall to understand how this decision of the Supreme Court can at all be pressed into service in the present case. There, the question was whether, after making a concession before the High Court, it could be urged before the Supreme Court that no such concession was made and the Supreme Court. The Supreme Court, even in that case, observed as follows (at page 1251) :
"Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice, but, he may not call in question the very fact of making the concession as recorded in the judgment."
8. The Supreme Court was thus considering the contention raised before it that such concession was never made and when such concession was recorded in the judgment delivered by the High Court, the Supreme Court refused permission to the appellant to raise a contention that no such concession was made. This decision of the Supreme Court is thus not of any assistance in the present case.
9. Mr. Shethna also drew our attention to a decision of the Himachal Pradesh High Court reported in the case of Mangal Chand v Forest Department through Divisional Forest Officer, Nichar, ILR 1984 HP 259; [1985] ACJ 8. The learned Chief Justice of the Himachal Pradesh High Court has observed therein that tribunals and quasi-judicial authorities must always bear in mind that whereas refusal to condone delay might result in injustice by a meritorious case being thrown out without trial, condonation of delay would, at the highest, result in decision of the case on merits. We fail to understand how this decision of the Himachal Pradesh High Court is of any assistance in the present case. The contention which is raised by filing this appeal cannot be said to be of a technical nature. The insurance company has insured the owner of the motor cycle. By insuring the owner of the motor cycle, the insurance company has agreed to indemnify whatever compensation he might have to pay for the injuries caused by the vehicle in question. The question of the insurance company paying the amount of compensation will arise only if and when there is some award passed against the owner of the vehicle. When the owners of the vehicle is not made a party, the question of passing any award against the insurance company does not arise. No award could have been passed and the Tribunal had even no jurisdiction to pass such an award against the insurance company in the absence of the owner. The question which is raised by filing the appeal thus goes to the very root of the matter. It is true that the insurance company did not raise any such contention either in the written statement or at any stage before the Tribunal, but it cannot be said that the insurance company in any way had made any concession that it was liable to pay. The question of waiver also does not arise because this is a pure question of law which again goes to the very root of the matter.
10. Mr. Shethna also drew our attention to a decision of the Supreme Court in State of Gujarat v Sardarbegum, AIR 1976 SC 1695. In that case also, the question was about resiling from a concession. It appears that the State of Gujarat made a concession before the High Court and the order was passed by the High Court pursuant to the said concession and it was in that connection that the Supreme Court observed that it was not fair to allow the appellant to back out of that concession. That was again after the death of the pensioner in whose favour the writ was issued. This decision of the Supreme Court is thus not of any assistance in the present case.
11. The discussion made above will go to show that the point which is sought to be raised by filing the present appeal is not of a formal or technical nature as it goes to the root of the matter. We see no substance in the contention raised by Mr. Shethna that the appellant-insurance company is not entitled to raise this contention. When it is obvious that the Tribunal could not have passed the award against the insurance company in the absence of the insured, it is obvious that the award passed by the Tribunal against the insurance company as insurer of the motor cycle requires to be set aside.
12. Mr. Shethna also drew our attention to a decision rendered by one of us (coram : J P Desai J) on June 19, 1985, in First Appeal No 1211 of 1982 with First Appeal No 1181 of 1982. In that case, the liability of the insurance company was limited as per the cover note. That contention was not raised before the Tribunal at any stage. The first proviso to section 30 of the Workmen's Compensation Act, 1923, which provides for appeals to the High Court from orders passed by a Commissioner under the said Act lays down that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. The said question cannot be said to be a substantial question of law. Looking to the said aspect and looking to the facts of those cases, the contention was not allowed to be raised by the insurance company. There the liability of the insurance company was not disputed. Only the extent was disputed. Here the liability of the insurance company is disputed not any technical ground but on the ground that no award could have been passed against the insurance company because the owner of the vehicle was not a party to the petition. The ratio of the above decision cannot, therefore, be pressed into service in the present case.
13. Now, we come to the cross-objections. The learned Tribunal has discussed the question of negligence at para. 17 of the judgment. The said portion of the judgment was read before us once by Mr. Mehta and again by Mr. Shethna. We have carefully read the said portion of the judgment with a view to find out whether any error is committed by the learned Tribunal in reaching the conclusion that there was negligence on the part of the both the drivers and that the negligence was to the extent of 50% on the part of each. The road where the incident took place is 20 feet wide. As rightly observed by the Tribunal, there was more than enough space for both the vehicles to pass easily on the road without brushing each other. The vehicles were proceeding on their correct side of the road. The vehicles even the collided with each other with the result that Babubhai sustained injuries to which he ultimately succumbed. The learned Tribunal has observed, looking to the consent of the panchnama, exhibit 23, which was exhibited with the consent of the learned advocates for the parties, that there was absence of brakemarks, which indicated that neither of the two drivers had applied brakes. The Tribunal has also observed, and in our opinion rightly, that the collision appears to have taken place almost in the middle of the road. The panchnama does not show that either of the vehicles had gone on the wrong side. When both the vehicles were being driven on the correct side and the incident took place, it is clear that the vehicles must have come to the middle of the road and collided with each other. It is true that the motor cycle was a light vehicle, while the autorickshaw was a heavier vehicle as compared to the motor cycle. But simply because the motor cycle is a lighter vehicle, it cannot necessarily be said that there must be more negligence on the part of the autorickshaw and lesser negligence on the part of the driver of the motor cycle. The extent of negligence has to be decided considering the facts of each case. The fact that the accident took place in the middle of the road and none of the drivers applied brakes clearly indicates, as observed by the learned Tribunal, that there was negligence on the part of both the drivers and that too, to the same extent. The driver of the motor cycle, Dwarkadas, is examined at exhibit 20, while the driver of the autorickshaw, Aminbhia, is examined at exhibit 22. The learned Tribunal rightly observed that each has tried to throw the blame on the other and, therefore, the question of negligence and the extent thereof has to be decided with reference to the panchnama. We are in complete agreement with the reasons recorded by the learned Tribunal at para 12 which we have discussed above that there was negligence on the part of both drivers and that the extent of negligence should be assessed at 50%. The learned Tribunal does not appear to have committed any error in fixing the liability at 50% on each of the two drivers so far as negligence is concerned.
14. The learned advocate, Mr. Shethna, submitted before us that even though the amendment sought, for in the cross-objections has not been pressed, the question of multiplier can be considered by this court in view of the provisions of Order 41, rule 33, Civil Procedure Code, and that he may be permitted to make submissions on that question. We may mention here as discussed in the beginning that the amendment was in fact, sought for but it was not pressed only when the question of court-fees arose. In such circumstances, we do not think that Mr. Shethna should be permitted to have recourse to Order 41, rule 33, Civil Procedure Code. Again, we many mention here that cross-objections have, in fact, been filed and when the amendment has not been pressed only when it was realized that court fees may be required to be paid, recourse cannot be had to Order 41, rule 33, Civil Procedure Code.
15. Mr. Shethna drew our attention to a decision rendered by one us (Coram : J P Desai J) reported in Balkrishna Chatrabhuj Thacker v Devabai w/o Jadavji Hansraj [1985] Gujarat Law Herald 654, in support of his submission that this court should exercise the powers under Order 41, rule 33 of the case. In that case, the question was whether this court should exercise the powers under Order 41, rule 33, Civil Procedure Code, when a decision was rendered by a Full Bench of this court during the pendency of the first appeal in the District Court overruling some decisions of Division Benches of this court, holding that a tenant inducted by a mortgagee was not entitled to protection from being evicted under the Rent Act. The decision was rendered by the Full Bench during the pendency of the appeal and, therefore, this court exercised the powers under Order 41, rule 33, Civil Procedure Code, for the reasons recorded in that judgment. Here, there is no change of any circumstances nor any change of law pending this appeal and, therefore, the above decision cannot be pressed into service in the present case.
16. The result of the aforesaid discussion is that there is no substance in the cross-objections and, therefore, they deserve to be dismissed. Looking to the facts of the case, we propose to leave the parties to bear their own costs of the appeal as well as the cross-objections, even though the appeal succeed and the cross-objections fail.
17. As a result of the aforesaid discussion, the appeal filed by the insurance company is allowed and the award passed by the Tribunal directing the appellant-insurance company as the insurer of motor cycle No GTN 109 to pay Rs 28,500 with interest and costs to respondents Nos. 2 to 6 is hereby set aside. The cross-objections are dismissed. The parties to bear their own costs of the appeal as well as the cross-objections.