NEUTRAL CITATION
C/FA/2241/2006 ORDER DATED: 26/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2241 of 2006
With
R/FIRST APPEAL NO. 2242 of 2006
With
R/FIRST APPEAL NO. 2243 of 2006
With
R/FIRST APPEAL NO. 2244 of 2006
With
R/CROSS OBJECTION NO. 143 of 2006
In
FIRST APPEAL NO. 2241 of 2006
With
R/CROSS OBJECTION NO. 144 of 2006
With
R/CROSS OBJECTION NO. 145 of 2006
With
R/CROSS OBJECTION NO. 146 of 2006
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UNITED INDIA INSURANCE COMPANYLIMITED, GODHRA.
Versus
KAMLABEN W/O. LAXMANSINH SARDARSINH RATHOD & 9 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 7,9
MR AJAY R MEHTA(453) for the Defendant(s) No. 10
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 8
RULE SERVED BY DS for the Defendant(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 26/09/2023
COMMON ORAL ORDER
1. Since all these appeals i.e. First Appeal Nos.2241 to 2244 of 2006 arise out of the common judgment and award, they are being disposed of by this common judgment.
2. On 05.02.2001, there was an accident between Jeep and the bus belongs to Gujarat State Road Transport Corporation, at the place mentioned in the case papers, as a result of which, the four persons, who were traveling in Page 1 of 5 Downloaded on : Sat Sep 30 20:35:16 IST 2023 NEUTRAL CITATION C/FA/2241/2006 ORDER DATED: 26/09/2023 undefined Jeep, lost their lives. The legal representatives of the four persons, who died in the said accident, had filed claim petitions i.e. 1127 of 1992, 1128 of 1992, 1208 of 1992 and 1755 of 1993. The claim Tribunal, Godhra at Panchmahal, vide its common judgment and award dated 03.01.2006, awarded the amount of compensation. The Tribunal, on the issue of negligence, held that the Jeep driver was solely negligent in driving the vehicle. On the issue of liability, the Tribunal held that the deceased being a third party, the insurance company is liable to pay the compensation.
3. Being aggrieved with the fastening of the liability by the Tribunal, the insurance company of the Jeep i.e. United India Insurance Company Limited has preferred the above appeals under Section 173 of the Motor Vehicle Act.
4. Mr.Vibhuti Nanavati, learned advocate appearing for and on behalf of the insurance company, has submitted that the deceased and others were traveling in the Jeep as a fair paying passenger. The insurance policy was issued by the company for private car. In such circumstances, the policy being issued, of a private passenger vehicle, liability of its occupants who are traveling as a paid passenger shall not be covered.
5. Mr.Nanavati raised the contention that the learned Tribunal erred in holding that the deceased and others were third party and considering the nature of policy, the insurance company is liable to pay the amount of compensation.
6. In the aforesaid contentions, Mr.Nanavati submitted that Page 2 of 5 Downloaded on : Sat Sep 30 20:35:16 IST 2023 NEUTRAL CITATION C/FA/2241/2006 ORDER DATED: 26/09/2023 undefined the learned Tribunal failed to appreciate the terms and conditions of the policy of the insurance with regard to the involved Jeep and insurance company is saddled with the liability which is contrary to the statutory provisions and conditions of the policy and therefore, he prays that the insurance company may be exonerated from its liability to pay the amount of compensation.
7. Lastly, he contended that despite the sufficient evidence on record to come to a conclusion that the driver of the bus was equally negligent, the Tribunal has overlooked the said evidence and straightway in arbitrary manner, determined 100% negligence on the part of the Jeep driver and on that count also, the issue of negligence deserves modification.
8. On the other hand, learned counsels Mr.Ajay R. Mehta and Mr.Ruturaj Meena, appearing for the respondents, have supported the findings recorded by the Tribunal on the issue of negligence as well as fixing the liability of the insurance company. They further submitted that the Tribunal has assigned cogent and sufficient reasons while assessing the issue of negligence and therefore, no ground exists to interfere with the findings recorded on the issue of the negligence. They further submitted that the burden of the insurance company to prove that the deceased were paid passenger of the Jeep and the same has not been discharged by leading acceptable evidence. Thus, the appellants failed to discharge their burden proving the fact that there is a breach of terms and conditions of the insurance policy.
9. Having heard learned advocates for the respective parties Page 3 of 5 Downloaded on : Sat Sep 30 20:35:16 IST 2023 NEUTRAL CITATION C/FA/2241/2006 ORDER DATED: 26/09/2023 undefined and on perusal of the material placed on record, the issue arose for my consideration is whether the appellant insurance company proves that the deceased were traveling as paid passenger, in breach of insurance policy.
10. On the very limited issue, the appeals have been filed by the insurance company. Before the Tribunal, the witnesses who are legal heirs of the deceased, have not admitted in clear terms that the deceased were traveling as a paid passenger. The insurance company has not examined the owner of the Jeep to prove that the passengers were traveling on hire/reward and the same was in the knowledge of him. Thus, therefore, the insurance company failed to discharge their burden to prove that the deceased and others were paid passengers and the owner has committed a breach of terms and conditions of the policy as the policy was of private vehicle.
11. For the reasons recorded, this Court is of the considered view that the policy of the insurance is comprehensive policy and accepting the additional premium covering the risk of the passengers, the insurance company cannot be escaped from its liability to pay the amount of compensation.
12. On the issue of negligence, driver of the bus died in a natural way and therefore, the respondent authority could not examine him before the Tribunal. The driver of the Jeep who having a knowledge about the occurrence of the accident was not examined by the owner of the Jeep nor by the appellant insurance company. In such circumstanced, the learned Tribunal, after considering the available Page 4 of 5 Downloaded on : Sat Sep 30 20:35:16 IST 2023 NEUTRAL CITATION C/FA/2241/2006 ORDER DATED: 26/09/2023 undefined evidence on record, assigning proper reasons, has rightly determined the issue of negligence against Jeep driver.
13. In view of the above, all present appeals are dismissed being devoid of any merits. Decree be drawn accordingly.
14. In view of the disposal of the main first appeals, all connected cross objections do not survive and accordingly, they are disposed of as not survived.
(ILESH J. VORA,J) Rakesh/ Page 5 of 5 Downloaded on : Sat Sep 30 20:35:16 IST 2023