NEUTRAL CITATION
C/FA/2382/1993 JUDGMENT DATED: 07/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2382 of 1993
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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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
RAJESH IRON AND STEEL SHIP BREAKERS & 3 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MR PC MASTER(446) for the Defendant(s) No. 3,4
MR KETAN A DAVE(255) for the Defendant(s) No. 3,4
MR.HIREN M MODI(3732) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/08/2023
ORAL JUDGMENT
1. The present First Appeal is directed against the Page 1 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined judgment and award passed in Motor Accident Claims Petition No. 280 of 1987 by the learned Motor Accident Claims Tribunal (Main), Bhavnagar on 17.6.1993, the appellant - Insurance Company has preferred the present appeal.
2. The broad facts of the case are that a vehicular accident took place on 13.9.1984 on the road leading from Alang to Bhavnagar and the vehicle involved was a Matador bearing No.GUQ 9201 owned by Rajesh Iron and Metal Ship Breakers - respondent No.1 and insured with the Oriental Insurance Company Limited. It is the case of the appellant that several persons were travelling in the said Matador and in the accident, three persons died and one suffered injuries. The deceased were one Dipakbhai Rajaram, partner of Rajesh Iron and Metal Ship Breakers, his accountant Dushyantkumar Bhatukbhai Trivedi and Savjibhai also an employee of the said firm and the injured was one Mahmadbhai Mavjibhai Khoja.
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3. The claim petitions were filed by the heirs of the deceased and the injured. It may be noted that Motor Accident Claim Petition Nos.318 and 321 of 1984 were filed in the year 1984 whereas Motor Accident Claim Petition Nos. 102 and 280 of 1987 were also filed through the same advocate only in the year 1987 and there was delay of 3 years and 3 months in filing Motor Accident Claim Petition No.280/1987 which came to be condoned.
4. The learned Motor Accident Claims Tribunal (Main), Bhavnagar vide the impugned judgment and award dated 17.6.1993 partly allowed the claim petition preferred by the claimants and being aggrieved by the same, the appellant - insurance company has approached this Court by way of filing the present appeal.
5. Learned advocate Mr.Vibhuti Nanavati for the appellant - insurance company has drawn the attention of this Court to the fact that immediately after the accident, on the same day FIR in respect of the accident was filed by Page 3 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined Mahmadbhai Mavjibhai and a panchnama was also drawn on the same day. Mr.Nanavati submitted that if the reference is made to the description of the accident stated in Motor Accident Claim Petitions No.318 and 321 of 1984, it has been specifically stated that Dipakbhai Rajaram was driving the accident and it was he who caused the accident and this was the specific case of the claimants and the learned Tribunal without any amendment to the pleadings has stated in the issues "driver of the vehicle" which in the facts of the case can only be Dipakbhai. Mr.Nanavati has further submitted that reference may also be made to the FIR filed in this case which is relied on by all the parties concerned and the panchnama drawn on the same day, corroborates this fact in as much as it was the case in the FIR that Dipakbhai was driving the vehicle which dashed with a tree resulting in heavy damage to the vehicle on the drivers side and in this accident Mahmadbhai who was sitting on the cleaner's side i.e. left side was thrown out and suffered injuries. Mr.Nanavati has further submitted that it has also come in the evidence that Dipakbhai suffered Page 4 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined injuries on the stomach and two other persons sitting at the back also suffered injuries and died. In support of his submissions, Mr.Nanavati has placed reliance on the following decisions :
(1) Oriental Insurance Co. Ltd., v. Premlata Shukla & Others reported in 2007(7) SCALE 725 (2) New India Assurance Co. Ltd., v. Jaysukhlal Maganlal Doshi & Others, reported in 2013(3) GLR 2283 5.1 While making the submissions, Mr.Nanavati also placed reliance on Exh-67 - Claim Form filed by Rajesh Iron & Metal Ship Breakers - owner of the vehicle in which Dipakbhai was a partner, dated 9.10.1984 and the reasons assigned by the learned Tribunal to discard this positive evidence is unjustified and perverse. Mr.Nanavati has also drawn attention of this Court towards paragraph 3 of the impugned judgment that while describing the brief facts of the case, the learned Tribunal itself has stated that the Page 5 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined vehicle was being driven by Dipakkumar Rajaram Makwana.
5.2 Mr.Nanavati has further submitted that possibly realizing that the facts stated in Motor Accident Claim Petition Nos.318 and 321 of 1984 that the claimants of the Motor Accident Claim Petitions No.102 and 280 of 1987 i.e. more than 3 years after the accident put up the case as an after thought that it was Mahmadbhai who was driving the vehicle. The learned Tribunal did not give any cogent and convincing reasoning for not relying on the FIR, panchnama and the facts stated by the claimants in the year 1984 itself and what made it to accept the averments as to who was driving the vehicle stated in the Motor Accident Claim Petition No.280 of 1987 which was filed more than 3 years after the accident and thus, it is abundantly clear that it was Dipakbhai who was driving the vehicle and it was his negligence which caused the accident. Mr.Nanavati has further submitted that the panchnama of the vehicle involved in the accident shows beyond doubt that the Page 6 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined damage to the vehicle on the right hand side body of the vehicle was substantial and the steering was bent which would show that the person who was driving the vehicle would die on account of the impact which caused damage on the right side of vehicle and obviously it was Dipakbhai who died and not Mahmadbhai who was sitting on the left hand side of the vehicle in question. The reasoning adopted by the learned Tribunal to say the least is perverse and the perversity in the findings can be seen from the following observations in the judgment in paragraph 28 of the impugned judgment:
".... There are deaths of three persons and the claimants thereof have no personal knowledge as to who was driving the vehicle. Amrabhai Exh. 52 does not give clear evidence. At one breathe he says that Dipakbhai and he were sitting in the rear seat and in the cross examination, after the warning and note in the evidence about incongruous reply he has stated that Dipakbhai Page 7 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined and driver were sitting in the front seat. He does not know that Dipakbhai had injury on stomach"
Mr.Nanavati, therefore, submitted that despite the above clear and unambiguous observations, the same learned Tribunal took a summersault and believed the evidence of such a witness -Amarabhai to conclude that Mahmadbhai was driving the vehicle at the time of the accident and admittedly, there were other persons in the vehicle and the claimants did not examine any other witnesses to prove their case.
5.3 Mr.Nanavati has further submitted that the learned Tribunal failed to appreciate that as Dipakbhai was driving the vehicle himself and he was a partner of the insured firm and therefore, he himself as an owner of the insured vehicle, cannot claim compensation against himself in respect of the damage suffered on account of the rash and negligent driving by himself. Mr.Nanavati has further submitted that the learned Tribunal failed to appreciate that Page 8 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined in law, a partnership firm is not a legal entity but only a compendious name to describe all the partners. Therefore, Dipakbhai who was a partner of the insured firm cannot claim compensation against himself. In the circumstances, the insurance company cannot be called upon to pay compensation to the heirs of deceased Dipakbhai. In support of his above submissions, Mr.Nanavati has placed reliance on the following decisions:
(1) Narchinva V. Kamat and another etc., v. Alfredo AndonioDoe Martins and others, reported in AIR 1985 SC 1281.
(2) Dhanraj v. New India Assurance Co. Ltd., and anr., reported in (2004) 8 SCC 553.
(3) Oriental Insurance Co. Ltd., v. Juma Saha & Ors., reported in 2007(1) Supreme 609.
(4) Oriental Insurance Co. Ltd., v. Rajni Devi and ors., Page 9 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined reported in (2008) SCC 736.
(5) New India Assurance Co. Ltd., Sadanand Mukhi & ors., reported in (2009) 2 SCC 417.
5.4 Without prejudice to the aforesaid submissions, Mr.Nanavati has further submitted that the learned Tribunal failed to appreciate that even if Mohmadbhai was driving the vehicle, he was driving the vehicle for and on behalf of the owner viz., the insured firm which included Dipakbhai as partner and that Mohmadbhai was an agent acting for and on behalf of the insured firm and therefore, no claim of compensation can be made either against Mohmadbhai who is the professional driver or against the insured firm because no person can make claim against himself or his duly authorised agent for the alleged wrong done by his authorised agent viz. rash and negligent driving in the instant case.
5.5 Mr.Nanavati has further submitted that the Page 10 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined learned Tribunal failed to appreciate that the accident is of the year 1984 and in case of liability of the insurer for each of the passengers in the vehicle was limited either to the payment of Rs.20,000/- per passenger as per the terms of the policy and or in respect of an employee it was limited only to the amount which was due and payable under the provisions of Workmen's Compensation Act. Mr.Nanavati has further submitted that the learned Tribunal did not take into consideration the fact that by the death of Dipakbhai there was no loss of income so far as the claimants were concerned in as much as the evidence shows that on the death of Dipakbhai, his wife was taken as partner of the firm and was given 15 percent share in the profit, whereas the deceased Dipakbhai was getting profit to the extent of 20% and it was also not the case of the claimants that on the death of Dipakbhai, the firm was either closed down or suffered adversely and it can at the best be said that the claimants may be said to have lost supervision charges on the death of Dipakbhai. Page 11 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023
NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined 5.6 Mr.Nanavati has further submitted that the learned Tribunal has failed to appreciate that the case is of the year 1984 and the exemption limit of Income Tax at the relevant time was Rs.25,000/- and the income of the deceased taken as Rs.5,000/- i.e. Rs.60,000/- was liable to substantial deduction of Income Tax and it is well settled legal position as laid down by the Honourable Apex Court that while considering the income for computing the compensation, income tax and other taxes payable should be deducted.
5.7 Mr.Nanavati has drawn the attention of this Court that this Court had admitted the appeals and while admitting the appeals, investment orders were made and subsequently vide order dated 20.4.1995, this Court was pleased to permit the legal heirs of Dipakbhai - claimants in Motor Accident Claim Petition No.280/87 and respondents in this appeal to withdraw Rs.1,00,000/- out of the total amount deposited by the appellant. Thereafter, the original claimants filed Civil Application No.7410 of 2003 with a Page 12 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined prayer to permit them to withdraw 50% interest accrued on the investment of Rs.3,50,000/- made in the names of respondents No.2 and 3 for the purpose of their marriage and this Court vide order dated 16.10.2003 allowed withdrawal of the entire interest accrued on the deposits made in the names of the three claimants which was about to Rs.29,00,000/- and on the very next day of the order, the original claimants withdrew the aforesaid amount from the investment made by the learned Tribunal. Against the said order, the appellant Insurance Company filed SLP before the Honourable Apex Court but by the time the matter came up for hearing as the claimants had already withdrawn the amounts, the SLP appears to have become infructuous and thus the original claimants who are the legal heirs of Dipakbhai have already got a whopping sum of Rs. 30,00,000/- and odd in their case.
5.8 Mr.Nanavati has further submitted that the accident was a serious one in which three persons died and naturally the Police must have investigated the case and if, Page 13 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined in fact, Mohmadbhai was driving, he would have been prosecuted by the Police and nothing of that sort has happened in this case which would prove that it was not Mohmadbhai, but Dipakbhai who was driving the vehicle at the time of the accident. Mr.Nanavati, therefore, prays that the appeal be allowed and appropriate orders for refund be passed.
6. On the other hand, learned advocate Mr.Hiren Modi appearing for the respondent Nos.2, 3 and 4 has strenuously opposed the present appeal. Mr.Modi has submitted that as far as the first submission of the insurance company that the deceased was driving the vehicle and therefore, he cannot make claim against the insurance company for his own negligence is concerned, in the claim petition, there is a specific pleading in paragraph 10 that the opponent no.2- Mohammad Mavjibhai Khoja was driving the Matador. Mr.Modi has drawn the attention of this Court towards the paragraph 18 of the impugned judgment and contended that there was a specific issue Page 14 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined framed by the learned Tribunal that whether the deceased Dipakbhai himself was driving the vehicle and because of his negligence the incident occurred ? and after considering in depth the evidences, the learned Tribunal answered that the Matador was being driven by the driver Mohammad Mavjibhai Khoja. Mr.Modi has further submitted that if the evidence of Hemaben widow of Dipakbhai examined at Exhibit- 49 is seen, she has categorically said that Mohammadbhai was the paid driver of the firm and he was driving the said Matador on the day of accident and the said version is supported by another eyewitness at Exhibit - 52 Amarabhai Rambhai wherein it is stated that the deceased Dipakbhai was on the rear seat and sat with him. This witness is an independent witness and is not the beneficiary of the claim amount. Mr.Modi has further submitted that the insurance company has relied upon the FIR lodged by Mohamadbhai and also oral evidence of Mohamadbhai which was recorded in his claim petition in support of his claim petition wherein he said that at the time of accident he was not driving the Matador but the deceased was Page 15 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined driving the Matador. This statement is not required to be believed for the reason that Mohamadbhai himself was beneficiary of the claim amount because he has also filed the claim petition and his claim is partly allowed to the tune of Rs. 50,000/- and insurance company has filed the appeal but said appeal has been disposed of without entering the into merits. In such circumstances, the evidence of the Mohammadbhai is not trustworthy as he has made such statement to get the benefit out of it. Mr.Modi has further submitted that another evidence of Bhartiben Manharbhai at Exhibit- 34 suggests that the deceased Dipakbhai was driving the Matador but she is not eye witness and therefore, her evidence will not be helpful to the insurance company.
6.1 In support of his submissions, Mr.Modi has heavily placed reliance upon the judgment of the Hon'ble Apex Court in the case of National Insurance Co. Vs. Chamundeshwari and others, wherein the Hon'ble Apex Court has held in paragraph 8 that "if any evidence before Page 16 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined the Tribunal runs contrary to the contents in the first information report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the first information report.". Mr.Modi, therefore, submits that in the present case also, there is one independent eyewitness at Exhibit - 52 Amrabhai Rambhai who has stated that the driver Mohamadbhai was driving the Matador whereas the FIR lodged by Mohamadbhal and also evidence of the Mohamadbhai clearly states that the deceased Dipakbhai was driving the Matador and therefore, reliability of an independent witness is to be considered instead of beneficiary witness that is Mohamadbhai. 6.3 Mr.Modi has further submitted that even if for the sake argument it is believed that the deceased was not driving the Matador, he was occupant in that case also, the insurance company cannot be exonerated from paying the compensation because the deceased himself was not the owner of the vehicle and the Matador was registered in the name of M/s. Rajesh Iron and Metal Works and the said Page 17 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined firm is a partnership firm and the deceased was a partner in the firm. Mr.Modi has drawn the attention of this Court that the Matador was in the name of M/s Rajesh Iron and Metal and not in the name of the deceased and the Oriental Insurance Company has also issued the policy in the name of M/s Rajesh Iron and Metal and therefore, from the RC Book and Insurance Policy, the name mentioned is of M/s Rajesh Iron and Metal not of the deceased Dipakbhai. Mr.Modi has further submitted that as per the Section 2(30) of Motor Vehicles Act the owner means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire- purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement and hence, as per his submission, the owner means a person in whose name a motor vehicle stands registered and in the present case, the vehicle in question is not registered in the name of the deceased.
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NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined 6.4 Mr.Modi has further submitted that the submission made on behalf of the insurance company that since the deceased being a partner can be said to be the owner of the vehicle and the firm is the partnership firm is contrary to the provisions of Section 2(30) of the Act as well as the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd Vs. Balakrishnan and another, reported in (2013) 1 SCC 731. Relying upon the said decision, Mr.Modi has submitted that the deceased cannot be said to be owner of the vehicle in question. 6.5 Mr.Modi has further submitted that as per the settled law, even if the owner is travelling in his vehicle, then also, the insurance company is liable to pay the compensation and therefore, Mr.Modi, urges that the appeal filed by the insurance company deserves to be dismissed.
7. Heard learned advocate Mr.Vibhuti Nanavati for the appellant - insurance company and the learned Page 19 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined advocate Mr.Hiren Modi for the respondent Nos.2 to 4 - original claimants. This Court has also perused the materials made available to this Court.
8. It can be seen that the main contention of the appellant - insurance company before the Tribunal as well as before this Court is that the appellant - insurance company is not liable in any manner for payment of compensation as claimed by the claimants as the panchnama drawn on the same day as well as the FIR corroborates the fact that Dipakbhai was driving the vehicle which dashed with a tree resulting in heavy damage to the vehicle on the drivers side and in this accident Mahmadbhai who was sitting on the cleaner's side i.e. left side was thrown out and suffered injuries. Indisputably, the Matador bearing registration No.GUQ 9201 which had been insured with the appellant - insurance company has met with an accident on 13.9.1984. It is also not in dispute that the said vehicle was owned by Rajesh Iron and Metal Ship Breakers
- respondent No.1 herein.
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9. In the proceedings before the Tribunal, the appellant - insurance company appeared and filed the written statement by contending that at the relevant time, Dipakkumar was driving the vehicle in question. Indisputably, Dipakkumar was the partner of the respondent No.1 firm which is the owner of the vehicle. The learned Tribunal arrived at a finding that the driver of the offending vehicle is one Mahmadbhai and not Dipakkumar. It is the specific contention of the appellant - insurance company that the deceased himself was driving the said Matador on the date of the accident and the said Matador dashed with the tree and therefore, when the deceased himself was negligent for the accident, the legal heirs of the deceased are not entitled for the claim against the appellant insurance company.
10. At this stage, it would be fruitful to refer to the provisions of Section 147 of the Act which reads as under. Page 21 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023
NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined "147 Requirements of policies and limits of liability. -- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or Page 22 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:--
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. Page 23 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023
NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. Therefore, the intention of the legislature for enactment of the aforesaid provisions is to fix the liability of the concerned party in case of death or bodily injury to any person in the event of unfortunate vehicular accident. It is also equally true that the provisions of the Act provides for two types of insurance - one statutory in nature and the other contractual in nature.
11. Now, the question arises for consideration of this Court is whether the appellant - insurance company is liable to pay the amount of compensation in relation to the Page 24 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined accident that has occurred by use of the vehicle which was being driven by the deceased Dipakkumar. The liability of the appellant - insurance company is to the extent of indemnification of the insured. Therefore, on plain reading of the provisions of Section 147 of the Act, it clearly transpires that the appellant - insurance company cannot be held liable to indemnify the owner, the firm, the insured in respect of the death of Dipakkumar who according to the FIR lodged by Mahamadbhai was the driver of the offending vehicle. Even, the learned Tribunal has recorded the clear and unambiguous finding in Motor Accident Claim Petition Nos.318 and 321 of 1984 that deceased Dipakbhai was driving the offending vehicle bearing registration No.GUQ 9201. Despite the panchnama of the place of accident as well as the FIR in connection with the said vehicular accident are on record, the learned Tribunal took a summersault and believed the evidence of witness - Amrabhai to conclude that Mahmadbhai was driving the vehicle at the time of accident and this finding is an erroneous finding arrived at by the learned Tribunal. It is an Page 25 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023 NEUTRAL CITATION C/FA/2382/1993 JUDGMENT DATED: 07/08/2023 undefined admitted position on record that there were other persons in the said vehicle involved in the accident and the claimants did not examine any other witness to prove their case. It is also an admitted fact that Dipakbhai was the partner of the insured firm and was driving the offending vehicle at the time of accident and therefore, his legal heirs cannot claim compensation against the deceased himself and in this view of the matter, the appellant insurance company cannot be called upon to pay the compensation to the heirs and legal representatives of deceased Dipakbhai.
12. Therefore, considering the provisions of the Act as referred above as well as the law settled by the Honourable Apex Court in various judgments and having regard to the evidence on record, the contention raised by the appellant insurance company deserves acceptance and therefore, no liability should be imposed on them.
13. In the result, the appeal succeeds and the same is allowed to the extent indicated below. Page 26 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023
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14. Mr.Nanavati has invited the attention of this Court that while admitting the appeal, investment orders were made and subsequently vide order dated 20.4.1995, this Court was pleased to permit the legal heirs of Dipakbhai - claimants in Motor Accident Claim Petition No.280/87 and respondents in this appeal to withdraw Rs.1,00,000/- out of the total amount deposited by the appellant. Thereafter, the original claimants filed Civil Application No.7410 of 2003 with a prayer to permit them to withdraw 50% interest accrued on the investment of Rs.3,50,000/- made in the names of respondents No.2 and 3 for the purpose of their marriage and this Court vide order dated 16.10.2003 allowed the entire interest accrued on the deposits made in the names of the three claimants to be withdrawn which was about to Rs.29,00,000/- and on the very next day of the order, the original claimants withdrew the aforesaid amount from the investment made by the learned Tribunal and thus the original claimants who are the legal heirs of Dipakbhai have already got a whopping sum of Rs.30,00,000/- and odd in their favour. Page 28 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023
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15. In view of the aforesaid discussion, the amount deposited by the appellant - insurance company pursuant to the impugned order is ordered to be refunded to the appellant - insurance company by way of NEFT/RTGS after due verification. It is clarified that the amount of compensation or the interest accrued thereon which is ordered to be withdrawn by the claimants shall not be recovered, but the amount of compensation which is lying in the FDR in the concerned bank is ordered to be refunded to the appellant - insurance company.
R & P be sent back forthwith.
(S. V. PINTO,J) H.M. PATHAN Page 29 of 29 Downloaded on : Sun Sep 17 00:36:27 IST 2023