National Insurance Co.Ltd vs Heirs Of Decd.Hansrajbhai @ ...
2021 Latest Caselaw 17948 Guj

      C/FA/26/2007                             JUDGMENT DATED: 01/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 26 of 2007
                                 With
                     R/FIRST APPEAL NO. 27 of 2007
                                 With
                     R/FIRST APPEAL NO. 28 of 2007
                                 With
                     R/FIRST APPEAL NO. 29 of 2007
                                 With
                     R/FIRST APPEAL NO. 30 of 2007
                                 With
                     R/FIRST APPEAL NO. 32 of 2007
                                 With
                     R/FIRST APPEAL NO. 33 of 2007

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
================================================================

1    Whether Reporters of Local Papers may be allowed                 No
     to see the judgment ?

2    To be referred to the Reporter or not ?                          Yes

3    Whether their Lordships wish to see the fair copy                No
     of the judgment ?

4    Whether this case involves a substantial question                No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
                  NATIONAL INSURANCE CO.LTD.
                             Versus
    HEIRS OF DECD.HANSRAJBHAI @ HASMUKHBHAI MAKANBHAI & 2
                             other(s)
================================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MS AMRITA AJMERA(5204) for the Defendant(s) No. 1.1,1.3,1.4
RULE SERVED(64) for the Defendant(s) No. 2,3
================================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK




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      C/FA/26/2007                                   JUDGMENT DATED: 01/12/2021



                               Date : 01/12/2021

                              ORAL JUDGMENT

1. These appeals involve common question of law, though

factual aspects may be somewhat different. To appreciate the

sole grounds pressed in service by the appellant - Insurance

Company, the following brief facts may be sufficient.

2. All appeals arise out of a common judgment and award of

the Motor Accident claims Tribunal (Aux.), Surendranagar

(hereinafter be referred to as "the Tribunal") dated 04.03.2005

passed in Motor Accident Claims Petitions No.289/1997,

290/1997, 291/1997, 292/1997, 294/1997, 301/1997, 302/1997

and 811/1997. On 11.03.1997, a Truck bearing registration

No.GJ-13-T-5862 driven by respondent No.3 - original opponent

No.2 owned by respondent No.2 - original opponent No.1 and

insured by opponent No.3 - National Insurance Company Limited

in the group of claim petitions, met with an accident. There were

several persons - claimants sitting in the Truck bearing

registration No.GJ-13-T-5862 who received serious injuries. This

accident gave rise to eight claim petitions. Four were fatal cases

pursued by the heirs of the deceased passengers and four were

C/FA/26/2007 JUDGMENT DATED: 01/12/2021

injury cases, where claim petitions were field by the injured

themselves.

3. Heard Mr.Maulik Shelat, learned counsel appearing for the

appellant - Insurance Company and Ms.Amrita Ajmera, learned

counsel appearing for the respondents - original claimants.

4. Mr.Maulik Shelat, learned counsel appearing for the

appellant - Insurance Company has submitted that the atleast

seventeen persons were travelling in the goods vehicle as

passengers as owners of the goods was carrying cumin seeds in

the Truck and 18 to 20 person cannot travel as owners of goods

in the mini truck having gross weight of 6900 kilograms and the

vehicle was used for carriage of unauthorized passenger is in

violation of terms of policy. He has also submitted that as per

Section 2(21) of the Motor Vehicles Act, the gross weight of

vehicle does not exceed 7500 kilograms is classified as a light

motor vehicle and as per Rule 122 of the Gujarat Motor Vehicles

Rules, 1989, the total number of persons who can be carried in a

light motor vehicle cannot exceed three. He has submitted that

in the present case there were seventeen persons travelling the

C/FA/26/2007 JUDGMENT DATED: 01/12/2021

vehicle and the vehicle was used for carriage of passengers

whose risk is not covered under the policy. He has submitted

that the vehicle was used for carriage of passengers and the

deceased were travelling as unauthorized passengers in the

goods vehicle whose risk is not covered under the policy. He has

further submitted that the Tribunal has deducted 1/5th of the

income of the deceased towards personal expenses and since

the deceased survived by parents, wife and two children, the

Tribunal ought not to have deviated from the standard deduction

of 1/3rd. He has submitted that the Tribunal has wrongly

awarded Rs.1,00,000/- and Rs.20,000/- respectively as

conventional amount. He has submitted that the Tribunal has not

found the gratuitous passengers and if they are considered to be

gratuitous passengers, then, the risk is not covered under

Section 144 of the Motor Vehicles Act and as far as the Tribunal

found gratuitous passenger then risk is not statutorily covered

under the Motor Vehicles Act. While referring to the judgment of

this Court passed in First Appeal No.2121 of 2008 dated

18.11.2013, he has submitted that pay and recovery order

cannot be passed. He has referred to the cross-examination of

Ratilal - eye witness and submitted that 18 to 20 passengers

C/FA/26/2007 JUDGMENT DATED: 01/12/2021

were sitting in the back side of the truck. He has submitted that

Article 147 of the Motor Vehicles Act covers risk of the owner of

the goods and not owners of the goods. He has submitted that if

the Tribunal has not discussed any evidence and decided that

they all are owners of the goods. He has also submitted that if

the claimant or deceased is not a party whose risk is not covered

under Section 147 Motor Vehicles Act neither the Tribunal nor

this Court can pass an order of pay and recovery. He has

submitted that the power of pay and recovery available to the

Tribunal or this Court under Section 149 of the Motor Vehicles

Act, but only in the case where the statutory risk is covered

under the policy and there is breach of condition of policy either

by the driver or the owner and ordered of pay and recovery

could have been passed. He has submitted that as far as the

present case is concerned, the statute does not cover the risk of

any passenger travelling in the goods vehicle then the question

of pay and recovery would not arise and all the claimants have

claimed to be the owners of the goods, but Section 147 of the

Motor Vehicles Act only covers the risk of the single person of the

goods. He has further submitted that there is admission on the

part of the injured claimant in the cross-examination that the

C/FA/26/2007 JUDGMENT DATED: 01/12/2021

passengers were travelling in the back side of the truck sitting on

the goods, but not produced the evidence showing that they

were owners of the goods. He has prayed to allow the appeals.

4.1 Mr.Maulik Shelat, learned counsel appearing for the

appellant has relied upon the following decisions.

1. Oriental Insurance Company Limited Vs. Gulzarali Mehmadkhan and others in First Appeal No.2684 of 2004 and allied matters dated 17.08.2013 rendered by this Court.

2. United India Insurance Company Limited Vs. Lilaben w/o. Decd. Bhikhabhai Premjibhai Kathiriya and others in First Appeal No.2121 of 2008 dated 18.11.2013 rendered by the then Hon'ble the Chief Justice.

3. National Insurance Company Limited Vs. Savitri Devi and others, (2013) 11 SCC 554.

4. National Insurance Company Limited Vs. Cholleti Bharatamma and others, (2008) 1 SCC

5. Per contra, while referring to the FIR and the panchnama,

Ms.Amrita Ajmera, learned counsel appearing for the

respondents - claimants has submitted that only ten person were

travelling in the goods carriage along with the goods and they all

had having agricultural lands and they were growing sesame and

cumin on the lands, the evidence of which has been produced on

C/FA/26/2007 JUDGMENT DATED: 01/12/2021

record. She has submitted that the persons who travelling in the

goods vehicle are not gratuitous passengers, but they are actual

owners of the goods and, therefore, pay and recovery is not

required to be done and the Insurance Company may be held

liable. While referring to the panchnama (page no.97), she has

submitted that 25 bags of cumin, 75 jute bags of cumin and

sesame found, while some of them was damaged and was found

lying on the ground and in all around 100 bags of cumin and

sesame were found. In support of her submission, she has

referred and relied upon the following facts.

F.A.No.26/2007 Legal heirs of Hansrajbhai Makanbhai: * Agricultural lands (in his name ad father) - page nos.137 to 143 * Authorised dealer of submersible pump - page no.135 * Business of fertilizer - page no.145 to 147 F.A.No.27/2007 Legal heirs of Hussainbhai Adambhai : * Agricultural lands (in his name and father) page nos. 159 to 165 F.A.No.28/2007 Legal heirs of Rafik Abrahambhai : * Agricultural lands - page no. 175 F.A.No.29/2007 Legal heirs of Ashokbhai Bhagwanbhai : * Agricultural lansd (in his name and father) page no. 189 to 191 F.A.No.30/2007 Ratilal Muljibhai :

* Agricultural lands - page no. 215

* Electric connection on agricultural lands - page nos.209 - 213 F.A.No.32/2007 Harshadbhai @ Bhikhabhai Parshurambhai : * Agricultural lands (in the name of father written as Farshuram Daluram) page nos.239 to 241 F.A. No.33/2007 Mansukhbhai Abhrambhai :

* Agricultural lands - page nos.259 to 267

C/FA/26/2007 JUDGMENT DATED: 01/12/2021

5.1 Ms.Amrita Ajmera, learned counsel appearing for the

respondents - claimants has relied upon the following decisions.

1. Oriental Insurance Company Limited Vs. Pushpa and others, 2005 ACJ 578.

2. National Insurance Company Limited Vs. Allpeer and another, 2006 ACJ 1099.

3. National Insurance Company Limited Vs. Lakhuben Punabhai Vaghari and others, 2006 (12) G.H.J. 177.

4. Anu Bhanvara Vs. IFFCO Tokio Insurance Company Limited, AIR 2019 SC 3934.

5. Manuara Khatun and others Vs. Rajesh Kumar Singh, (2017) 4 SCC 796.

6. United India Insurance Company Vs. K. M.

Poonam, (2015) 15 SCC 297.

6. In the case of Cholleti Bharatamma (supra), the Hon'ble

Supreme Court has observed in paras-4 and 8 as under:-

4. The said provision underwent an amendment in the year 1994 by the Motor Vehicles (Amendment) Act, 1994 which reads as under:

"147. Requirement of polices and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy with -

                (a)          *              *           *                 *







      C/FA/26/2007                                   JUDGMENT DATED: 01/12/2021



               (b)    insures the person or classes of persons

specified in the policy to the extent specified in sub- section (2) -

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

               (ii)         *               *           *                 *
                                                   (emphasis supplied)

8. The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorised representative.

7. In the case of Pushpa and others (supra), the High Court of

Allahabad has observed in paras-11 and 13 as under:-

11. Much emphasis has been laid by the learned counsel for the appellant on the use of the expression "owner of the goods or his authorised representative" in singular asserting that since the expression owner and representative have been so used, it is apparent that the liability had to be in respect of a single owner or representative and not beyond that.

13. We are clearly of the opinion that the submission of the learned counsel as noted hereinabove is totally misconceived. It cannot be lost sight of that as provided under the General Clauses Act singular includes plural. That being so the expression owner or the expression representative though used in singular had to be taken to include owners or representatives as the case may be.

C/FA/26/2007 JUDGMENT DATED: 01/12/2021

8. Having considered the submissions canvassed by the

learned counsel appearing on behalf of the respective parties

and considered the record and proceedings of the case and the

decisions cited at the bar. It clearly transpires from the

panchnama of the scene of accident at Exhibit 25 that the goods

narrated by the complainant and the witnesses are found at the

place of occurrence and the Insurance Company has not

examined the driver of the vehicle and, therefore, there is no

cogent and reliable evidence led by the Insurance Company.

Therefore, the case of the original claimants cannot be thrown

away merely because they are sitting in the goods vehicle, but,

since they are owners of the goods and they are travelling in the

goods vehicle from Surendranagar to Unjha for selling of their

goods respectively in better place. Therefore, considering the

contents of the FIR and the panchnama, it appears that the

decisions relied upon by the learned counsel appearing for the

appellant are not applicable to the facts of the present case.

After evaluating the evidence, it appears that the Tribunal has

rightly held liable to the appellant for compensation. At this

juncture, it is required to be noted that the claimants have not

preferred any appeal/s for enhancement of the amount of

C/FA/26/2007 JUDGMENT DATED: 01/12/2021

compensation. Therefore, I am in complete agreement with the

reasoning and findings arrived at by the Tribunal while passing

the impugned award.

9. In view of the above, the present appeals are dismissed.

The appellant - Insurance Company shall deposit the awarded

amount before the Tribunal with running interest as awarded by

the Tribunal and after depositing the amount in question, an

appropriate order of disbursement shall be passed in accordance

with paragraph no.27 of the operative portion of the order of the

Tribunal in the interest of justice and equity. Record and

proceedings of the case be sent back to the concerned Tribunal

forthwith.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL