Oriental Insurance Co Ltd vs Rameshbhai Amrutlal Gajjar Since ...
2021 Latest Caselaw 18325 Guj

      C/FA/5605/2008                                    JUDGMENT DATED: 13/12/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO.          5605 of 2008

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the
      fair copy of the judgment ?

4     Whether this case involves a substantial
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

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                ORIENTAL INSURANCE CO LTD
                          Versus
RAMESHBHAI AMRUTLAL GAJJAR SINCE DECD. THROUGH HEIRS & 3
                         other(s)
==========================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
 for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5,4
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 13/12/2021

                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the

C/FA/5605/2008 JUDGMENT DATED: 13/12/2021

judgment and award dated 26.05.2008 passed by the Motor Accident Claims Tribunal (Aux), Rajkot in MACP No.262 of 2000, the insurance company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act")

2. The following facts emerge from the record of the appeal -

2.1 That the accident took place on 16.01.2000. It is the case of the claimants that the deceased Rameshbhai was a businessman dealing in plywood was travelling on Maruti Car bearing registration No. GJ- 3K-9531, which belonged to his brother Harishbhai Amrutlal. The record indicates that at about 6.30 PM, the claimant was informed that the deceased would reach Rajkot by 11.30. However, inspite of that, she was informed over phone that the accident has occurred in Chotila. It is the case of the claimant that the accident occurred in Chotila wherein truck bearing registration no.GJ-10U-3438 dashed with the Maruti car from behind because of which, deceased Rameshbhai sustained serious injuries and died on the spot. The FIR was lodged with the Chotila Police Station on 17.01.2000. The claimants relied upon oral deposition of wife of the deceased Vinaben at exhibit 39 and also relied upon plethora of documentary evidence such as FIR at exhibit 37, panchnama at exhibit 38, police statement of bhavabhai kalubhai at exhibit 39, police statement of Dineshbhai Amubhai at exhibit 40, police statement of Dharamshibhai Somabhai at exhibit 41, police

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statement of Dineshbhai Shankarlal at exhibit 42, R.C. book of truck no. GJ-10-U-3438 at exhibit 43, cover note of insurance policy of truck no.GJ-10-U- 3438, license of deceased Rameshbhai at exhibit 45, R.C. book of maruti car no. GJ-3K-9531, Insurance policy of maruti car no. GJ-3K-9531, PM report of deceased Rameshbhai at exhibit 48, pancard of Rameshbhai at exhibit 49, partnership documents of Rameshbhai at exhibit 50, Income tax returns of Rameshbhai at exhibits 51 to 54, stamp duty and tax related documents of flat of deceased Rameshbhai from exhibits 55 to 59, certificate of the cooperative Agri and Rural Bank at exhibit 65, documents related to yearly accounts of partnership firm of Rameshbhai from 1997-98, 1998-99, and 1999-2000 from exhibits 92 to 94, insurance policy at exhibit 105 and various other documents.

2.2 Considering the FIR at exhibit 37 and the panchnama of the scene of occurrence at exhibit 38 and the statement of the cleaner at exhibit 39, other statements at exhibit 40, 41, has come to the conclusion that as the truck driver applied brake very suddenly, the Maruti car dashed from behind the truck. Considering the same, the Tribunal has considered that it was a case of contributory negligence and has held the driver of the truck to be negligent to the tune of 80% whereas the driver of the Maruti car is held to be liable to the extent of 20%. While partly allowing the claim petition, the Tribunal awarded a sum of Rs.8,03,000/- and further

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ordered that the driver and owner of the truck would be liable for 80% and driver and owner of the Maruti Car would be liable for 20% and it was further provided that the same can be recovered from respective respondents. Feeling aggrieved by the same, the insurance company has preferred this appeal.

3. The matter came to be admitted by the coordinate bench on 17.12.2008. No one appeared for the original claimants. Thereafter, even fresh notice was issued by this Court, which has been served upon the original claimant way back on 06.09.2019. However, no one appears for the claimant.

4. We have heard Mr. Maulik Shelat, learned advocate for the appellant and Dr. Rushang Mehta, learned advocate for the other insurance company, respondent no.3.

5. At the outset, it deserves to be noted that respondent no.3, the insurance company of the truck has not preferred any appeal and the present appeal is preferred by the insurance company of the Maruti Car.

6. Mr. Shelat, learned counsel appearing for the appellant-insurance company contended that the deceased was driving the Maruti car bearing registration no.GJ-3K-9531 owned by his real brother. Considering the facts of this case as well as referring to the insurance policy of the Maruti car,

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copy of which has been placed on record, it was contended that in the present application under Section 166 of the Act, which is based on fault liability principles, once the Tribunal arrived at the conclusion that the driver of the Maruti car was negligent to the extent of 20% for causing the accident, the legal heirs of the deceased cannot claim any compensation against the insurer of the car. According to Mr. Shelat, a tortfeaser cannot maintain a claim under Section 166 of the Act for his own fault against owner and insurer of the vehicle driven by him. Mr. Shelat further contended that the Tribunal has misread the insurance policy at exhibit

105. Mr. Shelat referring to the insurance policy at exhibit 105, contended that the additional premium charged and received by the appellant insurance company would cover the risk of only the 'paid driver' and not the family members. Relying upon the judgment of this Court in United India Insurance Co. Ltd. Vs. Maganbhai Darubhai Parmar reported in 2013(3) GLR 2342, 1985 GLH 573 and the judgment and order dated 01.07.2019 passed by the Division Bench of this Court in First Appeal No. 1445 of 2014 dated 01.07.2019, it was contended that as the Tribunal has found the driver of the car to be negligent to the extent of 20%, the compensation arrived at by the Tribunal deserves to be sliced down to the extent of negligence of the deceased, i.e., 20%. Mr. Shelat contended that the PA cover which is available is a contractual aspect for which the original claimants are required to apply before the insurance company.

C/FA/5605/2008 JUDGMENT DATED: 13/12/2021

If any such application is filed, the same shall be considered in accordance with law. On the aforesaid grounds, Mr. Shelat contended that the appeal deserves to be allowed to the extent of liability of the appellant insurance company.

7. Dr. Rushang Mehta, learned advocate appearing for the other insurance company has opposed the appeal and has prayed that the appeal be dismissed.

8. We are conscious of the fact that the claimants have not appeared. From the record, it appears that twice attempts were made by this Court and even though the claimants are served, no one appears on behalf of the claimants and considering the present appeal to be almost 13 years old, we deem it fit to deal with this appeal even in absence of the claimants.

9. The short issue which arises in this appeal is to the effect that as the premium of Rs.15/- is for paid driver, would the risk of the deceased be covered as the driver of the Maruti car involved in the accident or not.

10. The record indicates that the Maruti car bearing registration no. GJ-3K-9531 was of the ownership of Harishbhai Amrutlal Gajjar, i.e., real brother who was together with him in the same business of plywood. It is no doubt true that policy at exhibit 105 shows that Rs.15/- was charged as premium for the paid driver, there is nothing on record to show that

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the deceased was a paid driver of his own brother. The deceased was driving his car as brother of the owner and not as a paid driver and therefore, Mr. Shelat is right in contending that the risk of deceased does not stand covered. There is no dispute as regards the fact that the Tribunal has come to the conclusion that the driver of the motorcar was negligent to the extent of 20%. It is a well known principle that tortfeaser cannot maintain a claim petition under Section 166 of the Act against his own fault against the owner and the insurer of the vehicle driven by him. At this juncture, it would be appropriate to refer to the judgment of this court in the case of United India Insurance Co. Ltd. (supra), wherein in paras 6 and 6.1, it is observed thus -

"6. Heard learned advocates appearing for respective parties at length. I have re- appreciated the entire evidence on record.

At the outset it is required to be noted that as pleaded by the original claimants even in the claim petition and even as deposed by the original claimant No.1 ? Ushaben, the deceased himself was driving the jeep. It is also so pleaded and so stated by the original claimant No.1 in her deposition that the deceased was serving as a driver of Tempo and earning Rs. 2500/per month. Nothing is on record that the deceased was employed as a driver of the jeep.

At this stage it is required to be noted that as such the jeep involved in the accident was owned by the father of the deceased himself. Merely because the deceased was driving the jeep, he cannot be said to be the driver of the jeep of which the risk was covered on payment of the additional premium. Only in a case with respect to the employed driver of the jeep, the

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additional risk of such driver on payment of additional premium can be said to have been covered. The learned Tribunal has held the appellant herein ? insurance company liable to pay the compensation solely on the ground that as the deceased was driving the jeep and therefore, he can be said to be the driver of the jeep, which cannot be sustained. As observed herein above, there is no evidence on record that the deceased was employed as driver of the jeep that too by his father ? owner of the jeep. As observed herein above on the contrary it was the case on behalf of the original claimants so pleaded in the claim petition as well as so stated in the deposition that the deceased was serving as a driver of tempo. Under the circumstances, the learned Tribunal has materially erred in holding the appellant ? insurance company liable to pay the compensation considering the additional premium paid with respect to covering the additional risk of the driver.

6.1. Even otherwise the impugned judgment and award passed by the learned Tribunal holding the appellant ? insurance company liable to pay the compensation cannot be sustained. It is required to be noted that the deceased himself was driving the jeep, even as admitted by the original claimants. Even the learned Tribunal has also held that at the time of accident the jeep was being driven by the deceased himself. There is a specific finding recorded by the learned Tribunal that the deceased himself can be said to be negligent for the accident. In that view of the matter, the tort feasor cannot be permitted to take benefit of his own wrong and therefore also, the insurance company ? insurer could not have been held liable to pay the compensation. This view is supported by the decisions of the Honble Supreme Court in the case of Sadanand Mukhi & Ors. (Supra) and decisions of this Court in the case of Hiteshbhai Sureshbhai Patel (Supra) and Jagatsinh Valsinh (Supra).

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In view of the above and for the reasons stated above, impugned judgment and award passed by the learned Tribunal holding the appellant ? insurance company liable to pay the compensation cannot be sustained and the same deserves to be quashed and set aside."

Similar view of taken by the Division Bench of this Court in First Appeal No. 1445 of 2014.

11. In the case on hand also a tortfeaser cannot be permitted to take the benefit of his own wrong and findings arrived at by the Tribunal as the premium is charged for the paid driver, the appellant insurance company as a insurer would be liable and is an obvious error as the deceased was not paid driver. We also find that there is a personal accident cover in the policy at exhibit 105 and it is open for the claimants to apply for the same in accordance with law and if any such application is filed. The observations made in this judgment shall not prejudice the rights, if any, is found in the original claimant. The appeal is thus partly allowed. The 20% of the amount deposited by the appellant insurance company, which is lying in the FDR, shall be refunded to the appellant insurance company forthwith with proportionate costs and interest. Record and proceedings be sent back to the Tribunal forthwith.

(R.M.CHHAYA,J)

(MAUNA M. BHATT,J) BIJOY B. PILLAI