NEUTRAL CITATION
C/FA/3183/2011 JUDGMENT DATED: 09/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3183 of 2011
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 ? YES
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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NEW INDIA ASSURANCE CO. LTD
Versus
HEIRS OF DECD. CHANDULAL LAKHMANBHAI- LAKHMANBHAI
NAGJIBHAI & 2 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 09/11/2023
ORAL JUDGMENT
1. This first appeal has been filed by the appellant-original opponent No.2 - Insurance Company against the respondent No. 1 & 2- original claimants and the respondent no.3 - original opponent No. 1 under Section 173 of the Motor Vehicles Act, Page 1 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined ( 'The Act', for short) against the judgment and award passed by learned M.A.C.Tribunal (Main), Junagadh in Motor Accident Claim Petition No. 247 of 1998 on 23.06.2011. 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 10th January, 1997, Chandulal Lakhmanbhai, son of the claimants had gone for his work as a diamond polisher and was to return with one Maund of wheat in the evening and sat in rickshaw No. GJ-11-5517 with wheat and paid a fare of Rs.30/- for the same. That the rickshaw was driven by the opponent No. 1 in full speed and in a negligent manner and when the rickshaw reached at Bagasra public road near Sobha Vadla village, the opponent No. 1 lost control over rickshaw and it turned turtle on the side and Chandulal Lakhmanbhai was crushed under the goods and the rickshaw and sustained serious injuries and succumbed to the injuries on the spot. The offence was registered at Visavadar Police Station I-C.R.No.-2 of 1997. 2.2] The claimants who are the parents of the deceased Page 2 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined Chandulal Lakhmanbhai have filed the claim petition mainly stating that the deceased was 20 years at the time of accident and was hale and hearty and he was a skilled worker and doing diamond polishing and was earning Rs.3,000/- p.m.. That he was the sole bread earner of the family and the claimants have suffered a huge loss and have claimed an amount of Rs.5,22,000/- from all opponents jointly and severally under all available heads. The opponent No. 2 is the Insurance Company of the vehicle involved in the accident.
3. The notices were duly served to the opponents and the opponent No. 1 appeared but did not file any written statement and the opponent No. 2 appeared and filed its written statement at Exh:21 mainly denying all the allegations made in the claim petition and have stated that that the accident has occurred due to the negligence of the opponent No. 1 and hence the opponent- Insurance Company cannot be held liable to compensate the claimants.
4. The learned Tribunal, after considering the evidence on record found the opponent No. 1 negligent for the occurrence of the accident and considering the other evidence submitted by the claimants ordered the opponent to pay an amount of Rs.2,31,000/- Page 3 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023
NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined to the claimants jointly and severally with interest at the rate of 7.5% from the date of filing of the application till realization.
5. Being aggrieved and dissatisfied with the judgment and award passed by the learned Tribunal, the opponent No.2- Insurance Company has filed the present first appeal mainly stating that, on the day of the accident, the deceased Chadulal Lakhmanbhai was traveling in carrier rickshaw No. GJ-11-5517, which is a delivery van and a commercial vehicle and the deceased was traveling as a unauthorized gratuitous passenger and there is a breach of terms and conditions of the policy of the Insurance Company and therefore the Insurance Company is not liable to pay any amount of compensation. That wheat did not fall within the definition of goods and was a personal belonging and the learned Tribunal has ignored the objections received by the Insurance Company. That the Insurance Company is not liable to indemnify the owner of the vehicle as there is a breach of terms and conditions and the appeal must be allowed and the Insurance Company must be exonerated from paying the amount of compensation.
6. I have heard learned advocate Mr. Palak Thakkar appearing for the appellant- original opponent No.2-Insurance Company and Page 4 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined learned advocate Mr. Hiren Modi appearing for the opponent Nos.1 & 2. Though served, the respondent No. 3 has not appeared.
7. Learned advocate Mr. Thakkar, appearing for the appellant- Insurance Company has relied upon the judgment of the Hon'ble Supreme Court of India in Balu Krishna Chavan V The Reliance General Ins. Com. Ltd. & Ors. reported in 2022 Law Suit (SC) 1542 and has submitted that as the deceased was gratuitous passenger and traveling in a carrier rickshaw, which is a commercial vehicle, the Insurance Company cannot be liable and the order of pay and recover would not arise when the Insurance Company is not liable to pay amount of compensation.
8. Learned advocate Mr. Hiren M. Modi appearing on behalf of respondent Nos.1 and 2 has stated that the learned Tribunal has considered all the evidence on record and the claimants have specifically deposed that the deceased was carrying one Maund of wheat and had hired the rickshaw to carry the wheat and had paid fare of Rs.30/-. The claimants have also examined witness Vitthalbhai Dungarbhai, who has stated that he had taken the sack of wheat and the tiffin of the deceased from the place of accident and given then to the house of the deceased. The learned Tribunal Page 5 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined has rightly believed the aspect and found that the deceased was not a gratuitous passenger but was sitting in the rickshaw as owner of the goods.
9. From the records and proceeding of the M.A.C.P. No. 247 of 1998, the claimants have filed the claimant petition mainly contending that the deceased had gone for his work as a diamond polisher on 10.01.1997 and was to return with one Maund of wheat and he had paid a fare of Rs.30/- for the wheat and was sitting in a carrier rickshaw No. GJ-11-5517 as the owner of the wheat. The claimant no. 1 has filed his examination-in-chief at Exh33 and has reiterated the contents of the claim petition and during the cross examination has stated that he has no personal knowledge about the accident as he was not present at that time.. The claimants have examined Vitthalbhai Dungarbhai at Exh; 34 and the witness has stated that he had gone to the place of the accident along with Bharatbhai Laljibhai of his village and at that time the injured were being taken to the Hospital of Visavadar and he had taken the items and given them to the house of the deceased. That he had later learnt that the deceased succumbed to his injuries. During the cross-examination by the learned advocate for the Insurance company, he has stated that he is not Page 6 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined related to the deceased. The claimants have produced the F.I.R. at Exh: 25, the panchnama of place of offence at Exh:26, postmortem note at Exh: 27, R.C.Book of the rickshaw at Exh: 28 and the premium receipt at Exh: 29.
10. The learned advocate for the claimants has submitted that the claimants have succeeded in proving that the deceased was sitting in rickshaw as an owner of the goods and he had paid an amount of Rs.30/- for the sack of wheat that he was carrying and the witness Vitthalbhai Dungarbhai, who has been examined at Exh:34 has categorically stated that, he had taken sack of wheat and had given the same at the house of the deceased. That the Insurance Company has not examined the driver of the vehicle to rebut the evidence produced by the claimants and the learned Tribunal has properly appreciated all the evidence produced by the claimants on record.
11. The claimants have produced the FIR at Exh: 25 and the complaint has been filed by one Mohanbhai Govindbhai Dobariya, aged: 28 years, residing at Soma Vadla and he has stated that on 10th January, 1997 in the evening at around 23:47 pm, he was standing on the road to go from Manakvada to Soma Vadla and at Page 7 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined that time the diesel rickshaw came and he halted the rickshaw and sat in the rickshaw to go to his village and at that time, Sanjay @ Hudi Gulabhai Pipaliya, Rameshbhai and Chandubhai Madhubhai Vashrambhai and others, in all seven persons sat in the rickshaw, and the rickshaw was going towards Soma Vadla and when it was near Soma Vadla, the driver was driving the rickshaw in a rash and negligent manner in full speed and the rickshaw turned turtle on the left side and they all were thrown out from the rickshaw and one person was crushed under the rickshaw. That, they all lifted the rickshaw and found that Chandubhai Lakhmanbhai Patel was crushed under the rickshaw and he had expired. That the rickshaw was bearing GJ-11-U-5517 and the driver left the rickshaw and ran away from the place of incident. That others sustained injuries and he had sustained injuries on the left leg above knee and on the left hand and Chandubhai had died on the spot and the injured were taken to Hospital in Rajkot and he had filed the complaint against the driver of rickshaw bearing No. GJ-11-U-5517. The complaint has been produced on record by the claimants and the claimants have relied upon this complaint to prove their case. On perusal of the complaint, it clearly transpires that the deceased and others were sitting in the rickshaw as gratuitous passengers in the Page 8 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined rickshaw, which is a goods vehicle, and in all, they were around seven persons, who were sitting in the rickshaw. There is no whisper about any goods that were placed in the rickshaw and if any of the passengers had any goods with them, the same would have been mentioned by the complainant in the complaint.
12. The claimants have produced the copy of the panchnama at Exh; 26 and on perusal of the panchnama, which is the panchnama of the place of offence, it appears that at the place of offence, the rickshaw No. GJ-11-U-5517 was lying in a damaged condition and there were bloodstains near the front wheel of the rickshaw and the dead body of the deceased was lying there and the dead body was identified by one person to be that of Chandubhai Lakhmanbhai Patel. That in the entire panchnama, no wheat has been found at the place of incident. The claimants have come with the case that the deceased had taken a sack of wheat and was sitting in the rickshaw as owner of the goods, after fixing the fare of the goods at Rs.30/- but in the complaint of the panchnama produced by the claimants and fully relied upon by the claimants, there is no iota of evidence to show that there was any wheat that was being carried out by the deceased at the time of Page 9 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined the accident.
13. The claimants have examined witness Vitthalbhai Dungarbhai Pansuriya who has stated that he had gone to the place of incident and taken the sack of the wheat and tiffin of the deceased and given to his home but during the cross examination, the witness has stated that his statement was not recorded by the police and he had narrated the facts for the first time before the learned Tribunal. The witness has also stated that they were 8 to 10 persons in the rickshaw and admittedly the witness was not an eye witness to the accident and and the witness was not present at the time when the fare was fixed or an eye witness to the incident as occurred and hence, it appears that the claimants have not produced any proof that the deceased was sitting in the vehicle as the owner of the goods but from the documents relied upon by the claimants mainly meanwhile the complaint at Exh; 25 and the panchnama at Exh: 26, it is proved that the deceased was sitting as a gratuitous passenger along 7 to 8 other people in the goods vehicle.
14. Learned advocate for the appellant Mr. Palak Thakkar has relied upon the judgment of M/s National Insurance Co. Ltd. Vs. Page 10 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined Baljit Kaur and Ors. in Appeal (civil) No. 16 of 2004;,wherein, the Hon'ble Apex Court has observed as under:- Page 11 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023
NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined It is pertinent to note that a statutory liability enjoined upon an owner of the vehicle to compulsorily insure it so as to cover the liability in respect of a person who was travelling in a vehicle pursuant to a contract of employment in terms of proviso (ii) appended to Section 95 of the 1939 Act does not occur in Section 147 of the 1988 Act. The changes effected in the 1988 Act vis-`-vis the 1939 Act as regard definitions of 'goods vehicle', 'public service vehicle' and 'stage carriage' have also a bearing on the subject inasmuch as the concept of any goods carriage carrying any passenger or any other person was not contemplated. In a situation of this nature, the doctrine of suppression of mischief rule as adumbrated in Heydon's case [3 Co Rep 7a, 76 ER 637] shall apply. Such an amendment was made by the Parliament consciously. Having regard to the definition of 'goods carriage' vis-`-vis 'public service vehicle', it is clear that whereas the goods carriage carrying any passenger is not contemplated under the 1988 Act as the same must be used solely for carrying the goods.
In Halsbury's Laws of England, Volume 44(1), fourth reissue, para 1474, pp 906-07, it is stated :
"Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief. The doctrine originates in Heydon's case where the Barons of the Page 12 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined Exchequer resolved that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered :
(1) what was the common law before the making of the Act; (2) what was the mischief and defect for which the common law did not provide;
(3) what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and (4) the true reason of the remedy, and then the office of all the judges is always to make such construction as shall :
(a) suppress the mischief and advance the remedy; and
(b) suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit); and
(c) add force and life to the cure and remedy according to the true intent of the makers of the Act pro publico (for the public good)."
Heydon's Rule has been applied by this Court in a large number of cases in order to suppress the mischief which was intended to be remedied as against the literal rule which could have otherwise covered the field. [See for example, Smt. PEK Kalliani Amma and Others vs. K. Devi and Others, [AIR 1996 SC 1963; Bengal Immunity Co. Ltd. vs. State of Bihar and Others, AIR 1955 SC 661; and Goodyear India Ltd. vs. State of Haryana and Another, AIR 1990 SC 781].
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NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined By reason of the 1994 Amendment what was added is "including the owner of the goods or his authorised representative carried in the vehicle". The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression 'any person' contained in sub-clause (i) of clause
(b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise. The observations made in this connection by the Court in Asha Rani case (supra) to which one of us, Sinha, J, was a party, however, bear repetition:
"26. In view of the changes in the relevant provisions in the 1988 Act vis-`-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods vehicle, the insurers would not be liable therefor." In Asha Rani (supra), it has been noticed that sub-clause (i) Page 14 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined of clause
(b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers traveling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods or his authorized representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.
15. In view of the above and in the case of Baljit Kaur (supra), the vehicle being a carrier rickshaw, the appeal is allowed. The Insurance Company is hereby exonerated from paying the amount of compensation to the claimants. It is clarified that if any amount Page 15 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023 NEUTRAL CITATION C/FA/3183/2011 JUDGMENT DATED: 09/11/2023 undefined is disbursed to the claimants, the same may not be recovered by the Insurance Company but the the amount lying in Fixed Deposit with the learned Tribunal be disbursed to the Insurance Company by NEFT / RTGS, after proper verification.
16. Record and proceedings be sent back to the concerned Tribunal forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 16 of 16 Downloaded on : Fri Nov 10 21:03:38 IST 2023