NEUTRAL CITATION
C/FA/3350/2018 JUDGMENT DATED: 04/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3350 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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UNITED INDIA INSURANCE COMPANY LIMITED, JAMNAGAR
Versus
RAGHUVIRSINH BHIMSANG JADEJA
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR PREMAL S RACHH(3297) for the Defendant(s) No. 4,5
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
NOTICE NOT RECD BACK for the Defendant(s) No. 1
S M KIKANI(7596) for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/08/2023
ORAL JUDGMENT
1] This first appeal has been filed by the appellant-original opponent No.4 - Insurance Company against the respondent Nos. 1-3 original opponents No. 1 to 3 and the respondent nos.4 & 5 original claimants under Section 173 of the Motor Vehicles Act, ( 'The Act', for short) against the judgment and award passed by Page 1 of 8 Downloaded on : Sun Sep 17 00:16:32 IST 2023 NEUTRAL CITATION C/FA/3350/2018 JUDGMENT DATED: 04/08/2023 undefined learned M.A.C.Tribunal (Main.), Jamnagar, in Motor Accident Claim Petition No. 461 of 2013 on 26 th April, 2013. The parties are hereinafter referred to as the claimants and the opponents as they stood in the original petition for the sake of convenience, clarity and brevity.
2] The brief facts that emerge from the record of the case are as under:-
2.1] That on 3rd November, 2012, Kirit Ashwinbhai Matthar, son of the claimants was going from village Jogwad to Reliance, driving jeep No. GJ-10-Y-3344 and when they reached near the GSFC gate, the opponent No.1, who was driving tanker No. GJ- 21-T-6531, which was going ahead of the jeep, suddenly applied the brakes , as a result of which, the Jeep dashed into the behind the portion of the tanker and the driver of Jeep Kirit Matthar sustained fatal injuries and succumbed to the injuries on the spot. The offence. The complaint was lodged with Meghpar Police Station, Jamnagar vide I-C.R.No.63/2012. 2.2] The claimants, who are the parents of the deceased Kirit Ashwinbhai Matthar have filed the claim petition, mainly stating that the deceased was hale and hearty and hard working and able bodied and was maintaining the whole family. That the Page 2 of 8 Downloaded on : Sun Sep 17 00:16:32 IST 2023 NEUTRAL CITATION C/FA/3350/2018 JUDGMENT DATED: 04/08/2023 undefined deceased was working as a Supervisor with Mamta Constructions and was earning Rs.14,500/- pm and the claimants have lost their own son. That the claimants claimed an amount of Rs.15,00,000/- jointly and severally from all opponents under all available heads. 2.3] The opponents were duly served with the notices and the opponents No. 2, 3 and 4 appeared through their advocates whereas the opponent No. 1 owner of the tanker did not appear. The opponents No. 2 and 4 are the Insurance Companies of Tanker No. GJ-21-T-6531 and Jeep No. GJ-10-Y-3344 respectively and have filed the written statement at Exh:26 and Exh: 29 respectively and have denied any liability to pay the amount of compensation and sought for dismissal of the claim petition. The opponent No.3 owner of Jeep No. GJ-10-Y-3344 has denied any negligence on the part of the deceased and has submitted that the accident has occurred to the sole negligence of the tanker driver.
2.4] Learned Tribunal, after considering the income of Rs.9,000/- pm, deducted ½ amount for personal expenditure and considering the loss of dependency and loss of estate and funeral expenses, awarded an amount of Rs.10,02.000/- from the opponents No. 3 and 4 and exonerated the Tanker No. GJ-21-T- Page 3 of 8 Downloaded on : Sun Sep 17 00:16:32 IST 2023
NEUTRAL CITATION C/FA/3350/2018 JUDGMENT DATED: 04/08/2023 undefined 6531 from paying any amount of compensation.
3] The Tribunal held that the accident has occurred to the sole negligence of the deceased himself and has observed that the opponent No.4 has insured Jeep No. GJ-10-Y-3344 by Public carriers Package Policy, which is produced at Exh: 46 and covers the date of accident and as per the policy, the Insurance Company has taken an amount of Rs.250/- towards the workmen compensation to employee 5 hence even if 100 % negligence of the deceased is found applied the Schedule-IV of the Workmen Compensation Act and accordingly held the opponents No. 3 and 4 liable for payment of compensation.
4] Being aggrieved and dissatisfied with the judgment and award, the appellant-original opponent No. 4-Insurance Company of Jeep No. GJ-10-Y-3344 has filed the present appeal mainly contending that the deceased was employed as Supervisor i.e. Employer Mamta Construction Company and the learned Tribunal ought not to have believed the evidence of the proprietor of Mamta Constructions that the deceased was serving as a driver from June-2012 and that he was paid salary of Rs.6,000/- per month. That the learned Tribunal has no jurisdiction to direct the Insurance Company to satisfy the award when there is findings of sole Page 4 of 8 Downloaded on : Sun Sep 17 00:16:32 IST 2023 NEUTRAL CITATION C/FA/3350/2018 JUDGMENT DATED: 04/08/2023 undefined negligence against the deceased, and hence, the appeal must be allowed and the Insurance Company must be exonerated from paying the amount of compensation.
5] Heard learned advocate Mr. Vibhuti Nanavati appearing for the appellant- Insurance Company and learned advocate Mr. Ranthin Raval appearing for the respondent No. 2 and learned advocate Mr. Premal Rachh appearing for the respondents No. 4 &
5. Though served, the other respondents have not appeared. 6] Learned advocate Mr. Vibhuti Nanavati appearing for the appellant-Insurance Company has reiterated the contents of the appeal memo and has urged this Court to allow the appeal and exonerate the Insurance Company from paying any amount of compensation and has stated that the judgment and award passed by the learned Tribunal must be modified to that extent. 7] Learned advocate Mr. Premal Rachh, appearing for the respondents No. 4 and 5-original claimants and learned advocate Mr. Ranthin Raval appearing for the respondent No. 2-Insurance Company of Tanker No. GJ-21-T-6531 have submitted that the judgment passed by the learned Tribunal is just and proper and no interference is required in the judgment and award passed by the learned Tribunal.
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NEUTRAL CITATION C/FA/3350/2018 JUDGMENT DATED: 04/08/2023 undefined 8] On perusal of the records and proceedings of M.A.C.P. No.461 of 2013, the claimant No. 1 has been examined at Exh: 37 and has narrated all ingredients of the claim petition and during the course of cross examination had admitted that in the incident, his son-deceased Kirit Matthar was driving jeep No. GJ-10-Y-3344 and the said vehicle dashed into the behind portion of the Tanker, the claimant has stated that his son was unmarried and was working as as driver and earning an amount of Rs.14,500/-. The claimants have produced a copy of the FIR at Exh:39, panchnama of place of offence at Exh:40, R.C.Book of Tanker No. GJ-21-T- 6531 at Exh: 42, Insurance Policy of Tanker No. GJ-21-T-6531 at Exh:43 , Driving License of deceased at Exh:44, R.C.Book of Jeep No. GJ-10-Y-3344 at Exh:45, Insurance Policy of Jeep No. GJ-10- Y-3344, at Exh: 46, postmortem note of the deceased at Exh: 47, goods carriage permit of Tanker No. GJ-21-T-6531 at Exh: 48 and final report abated summary of the offence in question at Exh: 49. So far as the documents are concerned, it transpire that the offence was registered at Meghpar Police Station, Jamnagar police station at I-C.R.No. 63 of 2012 against the deceased Kirit Matthar and an abated summary was filed after due the investigation by Investigating Officer. On perusal of the Insurance Page 6 of 8 Downloaded on : Sun Sep 17 00:16:32 IST 2023 NEUTRAL CITATION C/FA/3350/2018 JUDGMENT DATED: 04/08/2023 undefined Policy produced at Exh 46, it appears that an amount of Rs.100/- has been paid as compulsory pay to owner-driver, an amount of Rs. 2,00,000/- and Workmen Compensation to Employee-IV of Rs.250/- has been paid as additional premium and the learned Tribunal has discussed this aspect in the judgment in para 23 at length.
9] In Valiben Laxmanbhai Thakore v. Kandla Dock Labour Board, reported in 2022 (1) GLR 440, this Court has observed in para 13 are as under:-
13. The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy whereunder the entire liability in respect of the death of or bodily injury to any such employee as is described in sub-Cl. (a) or (b) or (c) of proviso
(i) to Sec. 147(1)(b) may be fastened upon the insurance company and insurance company may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance company in case of death of or bodily injury to the aforesaid kind of employees is not restricted to that provided under the Workmen's Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy.
10] In view of the above discussion, the judgment and award passed by the learned Tribunal is just and proper and the appeal of the appellant deserves to be dismissed and the same is hereby dismissed with no order as to costs.
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NEUTRAL CITATION C/FA/3350/2018 JUDGMENT DATED: 04/08/2023 undefined 11] Record and proceedings be sent back to the concerned Tribunal forthwith.
(S. V. PINTO,J) VVM Page 8 of 8 Downloaded on : Sun Sep 17 00:16:32 IST 2023