United India Ins.Co.Ltd vs Vegda Jagdishbhai Becharbhai

Gujarat High Court

United India Ins.Co.Ltd vs Vegda Jagdishbhai Becharbhai on 7 January, 2025

                                                                                                          NEUTRAL CITATION




                              C/FA/4060/2009                              ORDER DATED: 07/01/2025

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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 4060 of 2009
                                                            With
                                               R/FIRST APPEAL NO. 4061 of 2009
                       ==========================================================
                                               UNITED INDIA INS.CO.LTD
                                                        Versus
                                        VEGDA JAGDISHBHAI BECHARBHAI & ORS.
                       ==========================================================
                       Appearance:
                       MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
                       MR.HIREN M MODI(3732) for the Defendant(s) No. 3,4,5,6,7
                       RULE SERVED for the Defendant(s) No. 2
                       RULE UNSERVED for the Defendant(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                        Date : 07/01/2025
                                                      COMMON ORAL ORDER

1. Since both the First Appeals filed u/s 173 of the Motor Vehicles Act, 1988 (in short "the Act") arise out of selfsame accident having judgment and award in two different MACP being MACP Nos.593 of 2003 and 594 of 2003 filed u/s 166 of the Act and partly-allowing both the petitions by judgment and award dated 18.02.2009 passed by the learned MACT (Main), Ahmedabad (Rural), they are being disposed of by this common order.

2. Brief facts of the case are as under :

2.1 The brief fact of the present appeal is such that on 19.05.2003, the both deceased were travelling in Matador No.GJ-

1-TT-6575 which was driven by its driver in rash and negligent manner and when they reached near the place of accident, the driver lost control over the vehicle and due to that, the errant vehicle turned turtle. As a result, the accident took place and both deceased Dhirubhai and deceased Ashokbhai sustained Page 1 of 6 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:17:55 IST 2025 NEUTRAL CITATION C/FA/4060/2009 ORDER DATED: 07/01/2025 undefined severe injuries and succumbed to the injuries. The legal heirs of the deceased have filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.3,50,000/- each. The learned Tribunal vide impugned judgment and award dated 18.02.2009 has granted compensation to the tune of Rs.4,35,000/- and Rs.4,95,000/-, respectively. Hence, the present appeals.

3. Heard learned advocate for the respective parties.

4. Learned advocate Mr.Vibhuti Nanavati appearing for the Insurance Company has made following submissions :

(i) That the vehicle involved in the road accident is goods carriage vehicle. It has no sitting capacity to carry any passenger.

(ii) That three persons were travelling in the goods vehicle which was loaded with the gas cylinders and therefore travelling with cups, saucers and toys cannot be treated as travelling with the goods in the goods carriage vehicle.

(iii) That the documentary evidence relied upon by the claimants itself proves that the deceased were travelling in the goods vehicle having not hired the errant vehicle matador for transporting cups, saucers and toys.

4.1 Mainly upon above submissions, learned advocate Mr.Nanavati submits that the learned Tribunal has erred in fastening the liability of the Insurance Company to pay the compensation. Learned advocate Mr.Nanavati submits to allow the appeals and to exonerate the Insurance Company.

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5. Learned advocate Mr.Hiren Modi appearing for the claimants would make following submissions :

(i) That the driver of the errant vehicle did not enter into the witness-box to clear the aspect that the deceased persons were not travelling along with the goods.

(ii) That no evidence has been led by the Insurance Company to counter the evidence of the claimants which led to draw adverse inference against the driver, owner and Insurance Company.

(iii) Alternatively, it is argued that in case if it is believed that deceased were travelling without goods in the goods carriage vehicle, since the claimants are third party, they cannot be deprived of the compensation on the technical breach of the terms and conditions of the policy executed between insurer and insured, but the order of pay and recover ought to have been passed. He referred to the judgment of Shivaraj V/s Rajendra and another - 2018 ACJ 2755, for the purpose of passing the order of pay and recover.

5.1 Mainly upon above submissions, he submits to dismiss these appeals.

6. Having heard learned advocates for both side and having considered the impugned judgment and award as well as evidence on record, at the outset, let me refer para 16 and 17 of the impugned judgment and award whereby learned Tribunal has decided the issue of liability as under :

NEUTRAL CITATION C/FA/4060/2009 ORDER DATED: 07/01/2025 undefined "16. In view of the above rival contentions, the question requires to be decided whether the injured and the deceased were travelling in the goods vehicle as passengers or whether they were traveling in the goods vehicle in the capacity of the owner of the goods. The claimants side has examined two witnesses in support of their case. Out of these two witnesses, one witness namely Ratilal Harjibhai Prajapati who is the injured eye witness, has been examined at ex.57. This injured eye witness is also original complainant who lodged the FIR before police. The certified copy of the FIR is produced at ex.58. This witness in his deposition on oath very specifically stated that they were traveling in the goods vehicle along with their goods. He has stated that they were having with their cup saucer and toys. It is pertinent to note that it is a specific case of the claimants that they were traveling in the goods vehicle as the owner of the goods, and it was also pleaded in the claim petitions when filed in the year 2003. It is also pertinent to note that the person who met with the accident and who were traveling in the goods vehicle are related to each other. The claimant Ratilal Harjibhai Prajapati is the injured eye witness and he was traveling in the vehicle when the vehicle met with the accident.

Therefore, he said that they were traveling in the goods vehicle as owner of the goods, should be believed. In this connection, it is argued by the learned advocate Mr.Khandvi, for the insurance company that from the panchnama it reveals that the vehicle was loaded with 90 bottles of gas cylinders and there is no mention in the panchnama regarding toys and cup saucers and therefore the claimants have failed to prove that they were traveling in the goods vehicle as owner pf the goods. In the circumstances of the case, I am unable to agree with the submissions put forward by the learned advocate Mr.Khandvi for the insurance company, on the basis of the pronouncement of our Hon'ble High Court, in the case of National Insurance Co. Ltd. Vs. Maganbhai Arjanbhai Rudani, reported in 2008(3) 34. In the cited case, it is specifically held that if the persons are traveling as owner of the goods in the goods vehicle, they cannot be termed as unauthorised passengers and hence insurance company cannot avoid its liability on the said count. In the cited case, the Hon'ble Gujarat High Court has also observed to the effect that the Page 4 of 6 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:17:55 IST 2025 NEUTRAL CITATION C/FA/4060/2009 ORDER DATED: 07/01/2025 undefined insurance company has to examine driver and owner to prove their contention that the deceased was not traveling as the owner of the goods. In the cited case, the father of deceased had deposed that the deceased was working in ice factory and he was traveling in the vehicle along with ice. It was also established on record that father was not eye witness of the accident, even though in the circumstances, Tribunal presumed that the deceased was traveling in the goods vehicle along with goods. In the cited case, the insurance company had not examined driver of the vehicle or owner of the vehicle to establish that the deceased was not traveling as the owner of the goods. Hence, In the circumstances, the Hon'ble Gujarat High Court observed that the insurance company has to examine driver and owner to prove their contention that the deceased was not traveling as the owner of the goods. In our instant case, the injured eye witness who was traveling in the vehicle when the accident took place has very categorically stated that he and his other three companions had purchased cup saucer and they were traveling as the owner of the goods in the vehicle. Thus, it has been established by the claimants side that the injured and deceased were traveling in the vehicle as owner of the goods when the accident took place. To disprove this say of the claimants, the insurance company should examine driver and owner of the vehicle, but on behalf of the insurance company, neither driver nor owner of the vehicle, has been examined. Therefore, in the totality of the circumstances of the present case, it should be inferred that the claimants and the deceased were traveling in the goods vehicle as owner of the goods and therefore, in the circumstances, the insurance company cannot be absolved from its liability to pay compensation to the claimants.

17. The learned advocate for the Company has produced copy of insurance policy No.060300/31/02/15185 at ex.80. It covers the period from 11-2-2003 to 10-2-2004 and hence it covers the date of the accident i.e. 19-5-2003. Thus, all the opponents are liable to pay compensation jointly and/or severally liable to the applicants with proportionate costs and interest at the rate of 7.5% per annum from the date of application till realization."

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7. It is noticeable that the driver of the errant vehicle Matador despite being served did not enter to contest the claim petition nor has entered into witness box to rebut the pleadings and assertions made against him by the claimants. Noticeably, according to the panchnama placed on record, the deceased persons were travelling along with toys and cup saucers. It is argued by learned advocate Mr.Nanavati that major part of matador was filled with the gas cylinders and it was that goods carrying of which the matador was engaged and therefore, persons travelling in such vehicle cannot be treated as gratuitous passenger despite they are travelling with cup saucers and toys. I am unable to agree with such argument. Cup and saucers are also treated to be goods of the deceased and they were travelling along with cup saucers and toys. Moreover, the driver of the matador did not enter into the witness box to deny that deceased were not travelling along with their goods.

8. In the above circumstances, I do not find any reason to interfere with the impugned judgment and award of the learned Tribunal fastening liability of the Insurance Company. Consequently, both the appeals stand dismissed. Connected application, if any, also stands disposed of. Registry is directed to send back the record and proceedings to the concerned Tribunal, forthwith.

(J. C. DOSHI, J) GAURAV J THAKER Page 6 of 6 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Fri Jan 31 23:17:55 IST 2025