Gujarat High Court
Icici Lombard General Insurance Co. ... vs Pateliya Madhiben Babubhai on 31 January, 2025
NEUTRAL CITATION
C/FA/1378/2023 ORDER DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1378 of 2023
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ICICI LOMBARD GENERAL INSURANCE CO. LTD. (EARLIER KNOWN AS
BHARTI AXA GENERAL INSURANCE CO. LTD.)
Versus
PATELIYA MADHIBEN BABUBHAI & ORS.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
KARTIKKUMAR G BAROT(9453) for the Defendant(s) No. 2,3
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance company being aggrieved and dissatisfied with the judgment and award dated 23.12.2022 passed by the Motor Accident Claims Tribunal, Mahisagar at Lunawada in Motor Accident Claim Petition No.151 of 2019.
2. Having heard learned advocates for both the sides, what could be noticed that learned Tribunal in para 20 of the judgment, believed that since there is breach of terms and conditions of the policy in many ways, opponent no.3 is not liable to pay compensation. Further in same breath, in para 20.2, learned Tribunal held that opponent nos.1,2 and 3 are jointly and severally liable to pay compensation. Inconsistent finding has been recorded by learned Tribunal. Firstly, let refer Page 1 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:02 IST 2025 NEUTRAL CITATION C/FA/1378/2023 ORDER DATED: 31/01/2025 undefined para 20, 20.1 and 20.2 of the judgment, which reads as under :-
"(20) As I have discussed in the observation of issue no.1 that the tractor no.GJ-35 U-1533 is involved in this accident and its driver i.e. opponent no.1 is negligent in driving. It is not in dispute that the opponent no.1 was driver of the said vehicle at the time of accident. It transpires from a copy of driving licence Exh.34 that the opponent no.1 was having valid and effective driving licence on the day of accident and a copy of R. C. Book (Exh.35) that the offending vehicle was owned by the opponent no.2 and a copy of insurance policy Exh.36 suggests that the said tractor was insured with the opponent no.3 at the time of accident the and insurance was in existence. But Ld. Advocate for the insurance company has vehemently argued that the offending tractor was registered with the RTO for agriculture purpose but in the present case it was used for hire and reward for carrying passengers and claimants / deceased were traveling in said tractor as gratuitous passengers which is against the terms and condition of the policy. Moreover the said tractor insured with them as agriculture tractor but was being used as a commercial vehicle i.e. carrying passengers for hire and reward. Further it is submitted that the seating capacity of tractor is only 1 (one) person but at the time of accident there were 30-35 persons were traveling on said tractor. Thus, there is a clear breach of terms and condition of policy in many ways and therefore the opponent no.3 - insurance company is not liable to pay any compensation.
(20.1) The insurance company has also examined their officer Kunal Tusharbhai Parikh at Exh.69 wherein he made averments as per the arguments advanced by their Ld. Advocate. He stated that as per the policy, offending tractor must be used for agriculture purpose only and none other than the agriculture and its seating capacity is only one person i.e. driver. That the deceased an injured in this case were traveling in the tractor for attending social function which is clear breach of terms and condition of the policy and therefore their risk could not be covered under the policy. This witness is cross-examined, at length Page 2 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:02 IST 2025 NEUTRAL CITATION C/FA/1378/2023 ORDER DATED: 31/01/2025 undefined and in detail, by the Ld. Advocate for the claimants wherein he admitted that the insurer has obtained commercial policy for the offending tractor. He has also admitted that nowhere it is mentioned in the policy that the said tractor should be used only for agriculture purpose. He has also admitted that the owner of the tractor has filed proposal form at the time of acquiring policy and the policy is given to the concern vehicle as per the proposal form. During his cross- examination, said witness also admitted that he does not know that more than 1 person was not sitting on the tractor and also doesn't know that the trolley was connected with the tractor and the passengers were sit in the trolley at the time of accident.
(20.2) From the above discussion as well as examination- in-chief and cross-examination of the witness of insurance company, I do not find any substance in the argument advanced on behalf of the insurance company as the deceased / injured passengers were sitting in a trolley connected with the said tractor no.GJ-35 U-1533 and as the tractor turned turtle the trolley also turned turtle and therefore this unfortunate incident occurred. One of the contention raised by the Ld.Advocate for the insurance company that the tractor is registered for the agriculture use only and therefore the insurance company cannot indemnify third party liability but if any person injured or died due to said tractor during agriculture use than the insurance should definitely be held liable for this third party and therefore in the present case also, in my opinion, the insurance company is liable to pay compensation to the claimants. Therefore, for the negligent act of the opponent no.1 i.e. driver of offending tractor, the opponent no.1, 2 and 3 are jointly and severally liable to pay compensation."
3. Scene of accident is clear, around 30 to 35 persons were travelling in trailer attached with tractor and they were going to attend marriage party and it turned turtle and persons in the trailer received minor and major injuries. Since policy for trailer Page 3 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:02 IST 2025 NEUTRAL CITATION C/FA/1378/2023 ORDER DATED: 31/01/2025 undefined is commercial policy and at attached with tractor becomes commercial goods vehicle. It meant to carry only goods but passenger was carried. There is breach of terms and conditions of the policy held by learned Tribunal but perhaps by typographical mistake, learned Tribunal held insurance company was held liable to pay compensation instead was to be exonerated directing it to first satisfy award and then to recover the same from owner.
4. This Court in the case of Oriental Insurance Co. Ltd. v/s. Kavadibe wd/o Raghuveerinh Damor (First Appeal No.2726 of 2013) and allied matters in identical fact situation, passed order for pay and recover. Para 9 and 10 of the said judgment reads as under :-
"9. Deceased is third party. He was travelling in goods vehicle. Goods vehicle was used for the purpose of carrying passengers which would be antithetical to the terms of insurance policy, since deceased was third party the claimant cannot suffer on such technicalities to pay compensation whether by owner or insurance company. The contract of policy on record is comprehensive policy and insured the vehicle, risk of the owner of vehicle is covered. Thus it is case to follow law laid down in the case of Shamanna (supra) and Manuara Khatun (supra) to pass order pay and recover."
10. In view of above discussion, the first appeals are partly allowed. The impugned judgment and award dated 21.03.2013 passed by the Motor Accident Claims Tribunal, Panchmahals at Godhra in MACP No. 547 of 2001 and MACP No.551 of 2001 is modified to the extent that the claimants are entitled for compensation of Rs.3,68,600/- in each first appeal along with 9% interest and cost from the date of petition from the driver, owner of the offending vehicle. The insurance Page 4 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:02 IST 2025 NEUTRAL CITATION C/FA/1378/2023 ORDER DATED: 31/01/2025 undefined company at the first instance shall pay and deposit amount of compensation including interest and cost before the learned Tribunal and it shall be entitled to recover the same from the owner of the vehicle on the strength of this judgment by executing it "
5. Applying ratio of above judgment, in the present case, I pass following order :-
6. The first appeal is partly allowed in aforesaid terms.
Insurance company is exonerated from liability to pay compensation. However, the insurance company at the first instance shall pay and deposit entire amount of the compensation including interest and cost before the learned Tribunal within six weeks from today and it shall be entitled to recover the same from the owner of the vehicle on the strength of this judgment by executing it.
7. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant after fixing apportionment, if not already fixed, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
8. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) SATISH Page 5 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:02 IST 2025