Gujarat High Court
New India Assurance Co Ltd vs Vikrambhai Devjibhai Vasava on 31 January, 2025
NEUTRAL CITATION
C/FA/2291/2010 ORDER DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2291 of 2010
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NEW INDIA ASSURANCE CO LTD
Versus
VIKRAMBHAI DEVJIBHAI VASAVA & ORS.
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Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3
RULE SERVED for the Defendant(s) No. 4,5
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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 24.08.2009 passed by the Motor Accident Claims Tribunal, Bharuch in Motor Accident Claim Petition No.501 of 2006.
2. Learned advocate Ms.Bhaya for the appellant - insurance company submitted that deceased was travelling as party of marriage ceremony in the goods carriage vehicle. It is submitted that even claim petition is suggesting the same that there were 30 persons travelling at the time of accident in goods carriage vehicle being No.GJ-7-U-7953. It is further submitted that looking to RC book, copy of policy, registration of truck was for the purpose of carrying goods and in violation of such purpose, Page 1 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:15 IST 2025 NEUTRAL CITATION C/FA/2291/2010 ORDER DATED: 31/01/2025 undefined owner carried passenger. It is further submitted that since it is admitted by the claimant in its pleadings, insurance company is not required to prove that deceased was travelling as one of the passenger of vehicle. It is further submitted that learned Tribunal in such circumstances, erred in fastening liability on insurance company flatly. Therefore, it is submitted to allow this appeal.
3. Learned advocate Mr.Bhalodi for the claimants while agreeing with submission, it is submitted that it is case of pay and recovery in view of judgment of Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796 and Shivaraj V/s Rajendra and another reported in 2018 ACJ 2755 and therefore, it is submitted that if appeal of insurance company is allowed, order of pay and recovery may be passed.
4. Having heard learned advocate for the parties and perusing facts of the case, needless to state that pleading of the claimant itself is indicating of the fact that deceased was travelling as party of marriage party to attend ceremony in truck which is registered as goods carriage vehicle. True that carrying passenger in goods vehicle is breach of terms and conditions of the policy. Insurance company, therefore, cannot be held liable to pay compensation but in the case on hand, deceased was third party. Legal heirs of deceased cannot be made to suffer for technical breach of terms and conditions of the policy.
5. In the case of Manuara Khatun, Hon'ble Apex Court in paragraphs 15 to 16 held as under:
Page 2 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:15 IST 2025NEUTRAL CITATION C/FA/2291/2010 ORDER DATED: 31/01/2025 undefined "15. This question also fell for consideration recently in National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 :
(2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment [Saju P. Paul v.
National Insurance Co., 2011 SCC OnLine Ker 3791 : 2012 ACJ 1852] of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".
16. R.M. Lodha, J. (as his Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under : (Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] , SCC pp. 52 & 55) "20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).
26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] should not be followed, more so in a peculiar fact situation Page 3 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:15 IST 2025 NEUTRAL CITATION C/FA/2291/2010 ORDER DATED: 31/01/2025 undefined of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 [National Insurance Co. Ltd. v. Saju P. Paul [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41, 55 (footnote 14)] ] and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] ."
6. In view of above, it is fit case where insurance company deserves to be exonerated but has to satisfy the award at first instance and to recover the same from owner.
7. In view of above discussion, I pass following order :-
7.1 The first appeal is partly allowed. The order of exonerating the insurance company is maintained. The impugned judgment and award is modified to the extent that 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 Page 4 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:32:15 IST 2025 NEUTRAL CITATION C/FA/2291/2010 ORDER DATED: 31/01/2025 undefined recover the same from the owner of the vehicle on the strength of this judgment by executing it.
7.2 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.
7.3 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
7.4 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 21:32:15 IST 2025