Gujarat High Court
New India Assurnace Co Ltd vs Sureshchandra Jethalal Purohit on 1 April, 2022
C/FA/161/2013 JUDGMENT DATED: 01/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 161 of 2013
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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NEW INDIA ASSURNACE CO LTD
Versus
SURESHCHANDRA JETHALAL PUROHIT & 2 other(s)
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Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1 - Claimant
MR ZUBIN F BHARDA(159) for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/04/2022
ORAL JUDGMENT
1. The present appeal is filed by the appellant - Insurance Company under Section 166 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the judgment and award dated 11.10.2012 passed by the Motor Accident Claims Tribunal (Main), Narmada at Rajpipla in Motor Accident Claim Petition No.96 of 2009, Page 1 of 7 Downloaded on : Mon Apr 04 21:31:35 IST 2022 C/FA/161/2013 JUDGMENT DATED: 01/04/2022 by which, the Tribunal has partly allowed the claim petition by awarding Rs.9,52,000/- with 7.5% p.a. interest to be paid to claimants, by holding opponents liable, jointly and severally.
2. The facts of the present appeal are as under :
2.1 The claimant was travelling in tempo bearing registration No.GJ-21-T-2976 for loading of mangoes to Gangpur. When he was returning, the tempo driver drove his tempo in rash and negligent manner and because of that, the tempo fell into a gutter near Chanod on Vansada Highway. The claimant was in the tempo and was crushed under the tempo with his goods and had sustained injuries which gave him paraplegia. He was hospitalised for about 16 days as an indoor patient. He sustained fracture of cervical spine and injuries on hands and legs. He sufferd from paralysis and was bed-ridden.
After the accident, he was unable to make any movement, even not able to walk or sit. Therefore, he has filed a claim petition before the Tribunal to get compensation of Rs.20 lakhs.
2.2 The notices were served to the opponents. Opponents No.1 & 2 filed their reply at Exh.21. The insurance company has also filed its written statement at Exh.33. The issues were framed by the Tribunal. Oral as well as documentary evidence were led before the Tribunal. After hearing the submissions made by the rival parties, the Tribunal has partly allowed the claim petition(s) and awarded compensation as noted above.
2.3 Hence, the insurance company has filed the present appeal before this Court.
3. Learned advocate Ms. Lilu K. Bhaya for the appellant -
Page 2 of 7 Downloaded on : Mon Apr 04 21:31:35 IST 2022C/FA/161/2013 JUDGMENT DATED: 01/04/2022 Insurance Company has submitted that as the claimant(s) is travelling in the goods vehicle as unauthorised passenger, the Tribunal has committed error in awarding the amount of compensation by holding the appellant - insurance company liable. She has also submitted that at the time of accident, about ten persons were travelling in the insured vehicle as against the sitting capacity of one person. She has also submitted that the Tribunal has failed to appreciate the statement given by the driver of the vehicle. She has further submitted that the Tribunal has erred in considering the amount of monthly income Rs.5,000/- in absence of documentary evidence available on record. Therefore, she has submitted that on the ground of unauthorised passenger travelling in the goods vehicle, the present appeal deserves to be allowed. In support of her submissions, she has submitted that our High Court has taken a view in First Appeal No. 710 of 2007 to 713 of 2007 dated 07.04.2014, more particularly Paras : 42 and 44. She has submitted that even in view of the observations made by this Court, no order for pay and recover can be passed in such circumstances, as it can be considered as fundamental breach. She has also relied on the decision of our High Court rendered in First Appeal No.4601 of 2007 and 4602 of 2007 dated 15.06.2017 and has submitted that the insurance company is exonerated for the payment of compensation in that matter. She has further relied on the decision rendered in First Appeal No.4215 of 2008 dated 12.01.2020, and has submitted that in the said decision, the Insurance is exonerated where the victim is found as gratuitous passenger in the goods vehicle and therefore, she has submitted that the appeal(s) may be allowed and the amount of compensation awarded by the Tribunal is required to be interfered with.
4. Per Contra, learned advocate Mr. Hiren Modi for the claimant Page 3 of 7 Downloaded on : Mon Apr 04 21:31:35 IST 2022 C/FA/161/2013 JUDGMENT DATED: 01/04/2022 has submitted that if the Court may peruse the statement of the driver himself, who has stated that some persons were travelling in his tempo along with the cleaner and the claimant. He has submitted that the driver has nowhere stated that the persons travelling in the tempo are gratuitous passengers and therefore, he has submitted that the case of the claimant is supported by the said statement of the driver and also from the FIR and Panchnama. Moreover, the insurance company has not examined the driver by putting him in the witness box and therefore, now, the version of the said driver, which is recorded before police, cannot be interpreted in the manner in which the insurance company is trying to portray. On the contrary, the insurance company has failed to prove its case by not examining the witness or by not producing the documentary evidence in support of its case. The insurance policy, which is produced on record, is also in existence on the date of accident which is not disputed by the insurance company. The driver of the vehicle is holding effective driving licence. Moreover, he has also pointed out from the deposition of the claimant whereby the insurance company has cross- examined the claimant and he has denied the question that at the time of accident, whether more persons were sitting in the tempo as well as he has also denied the question as to whether he has paid any fare for travelling in the tempo as passenger. Therefore, the insurance company has failed to prove its defence by adducing any cogent and convincing evidence. Therefore, Mr. Modi, learned advocate for the claimant has relied on the decisions of this Court rendered in the case of :- (i) United India Insurance Co. Ltd., versus Pappu reported in 2012 ACJ 870 and (ii) First Appeal No.3246 of 2005 to First Appeal No.3250 of 2005, whereby this Court, in similar set of circumstances, has found in Paras : 9 and 10 about the liability of the insurance company. He has submitted that another decision of this Court in similar set of circumstances which is Page 4 of 7 Downloaded on : Mon Apr 04 21:31:35 IST 2022 C/FA/161/2013 JUDGMENT DATED: 01/04/2022 decided in First Appeal No.2333 of 2007 dated 31.01.2022, whereby the Hon'ble Court, has after considering the various earlier judgments of this Court as well as Hon'ble Apex Court, decided the appeal by holding that at the time of accident, the deceased was travelling with the goods in the offending vehicle and more specifically, it was observed in the judgment of this Hon'ble Court as well as Hon'ble Apex Court that defence of the insurance company is to be proved by the insurance company, like the claimant. On the face of that averment made in the claim petition by the person who is either travelling along with the goods or as a labourer or a passenger, the onus to disprove this averment lies upon the insurance company and whether the insurance company has discharged its onus that the person travelling in the tempo is the gratuitous passenger, would have gone a long way and in that case, it has failed to do so by the insurance company and has not even brought the driver of the tempo into the witness box. The burden to prove the breach of terms of contract rests on the party which raises the contentions regarding the same. Therefore, he has submitted that the appeal of the insurance company is required to be dismissed.
5. I have considered the submissions made by the respective parties. I have perused the record and proceedings. I have gone through the impugned judgment and award passed by the Tribunal. I have also considered the pleadings of the parties before the Tribunal. It clearly transpires from the record that the statement given by the driver of the tempo before the police authority that at the time of accident, person as the owner of the goods - mangoes was sitting in the tempo and got injured. Thereafter, nothing has come on record in the defense raised by the insurance company that the claimant was gratuitous passengers travelling in the goods vehicle. The insurance company has not only failed to examine the tempo driver as a witness Page 5 of 7 Downloaded on : Mon Apr 04 21:31:35 IST 2022 C/FA/161/2013 JUDGMENT DATED: 01/04/2022 but also not examined any other independent witnesses, who can throw some light about the status of the claimant that in which capacity they where travelling in the goods vehicle. The claimant has proved his case by leading oral evidence where the claimant was cross-examined by the insurance company, but no admission or no material is found from the cross-examination of the claimant which supports the case of the insurance company about the gratuitous passenger. Moreover, if we peruse the policy of the insurance company, additional premium was paid, which is undisputed. Therefore, it cannot be said that the claimant was travelling in the vehicle as unauthorised passenger. In view of the above mentioned facts, the judgment cited by Mr. Modi, learned advocate for the claimant rendered in (i) 2012 ACJ 870 - Pappu (supra) (ii) First Appeal No.3246 of 2005 to First Appeal No.3250 of 2005 and (iii) First Appeal No.2333 of 2007 are helpful to the case of the claimant and therefore, no substance is found in the submissions made by Ms. Bhaya, learned advocate for the appellant - insurance company in view of above discussion and as the insurance company has failed to prove its case by leading cogent and convincing reasons. The appeal therefore deserves to be dismissed.
6. In view of above ,the following order is passed.
6.1 The present appeal is dismissed with no order as to costs.
6.2 The amount lying with the Tribunal and/or in the FDR, pursuant to the order of this Court if any, shall be disbursed to the claimant, along with accrued interest thereon if any, by account payee cheque, after proper verification and after following due procedure, within a period of six weeks from today.
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6.3 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
M.H. DAVE
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