New India Assurance Company ... vs Basantlal Parsottambhai ...
2021 Latest Caselaw 18522 Guj

     C/FA/291/2008                                 JUDGMENT DATED: 17/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO.        291 of 2008
                                   With
                      R/FIRST APPEAL NO.       292 of 2008
                                   With
                      R/FIRST APPEAL NO.       293 of 2008
                                   With
                      R/FIRST APPEAL NO.       294 of 2008

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT

==========================================================

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 ?

==========================================================
             NEW INDIA ASSURANCE COMPANY LIMITED
                            Versus
       BASANTLAL PARSOTTAMBHAI SHRIVASTAV & 6 other(s)
==========================================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
DECEASED LITIGANT(100) for the Defendant(s) No. 1
MR DHARMESH J GURJAR(5702) for the Defendant(s) No. 3,7
MR VILAV K BHATIA(5338) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 5,6
==========================================================

    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT


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      C/FA/291/2008                                          JUDGMENT DATED: 17/12/2021




                               Date : 17/12/2021

                           ORAL JUDGMENT

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

1. Feeling aggrieved and dissatisfied by the common judgment and award passed by the Motor Accident Claims Tribunal (Aux), City Civil Court at Ahmedabad in claim petitions being MACP Nos.986/01, 988/01, 989/01 and 990/01, the appellant insurance company has preferred the appeals under section 173 of the Motor Vehicles Act, 1988 is preferred (hereinafter referred to as the "Act").

2. All these appeals arise out of the same accident and hence, were heard together and are disposed of by this common judgment and order, which is impugned in these four appeals.

3. The following facts emerge from the record of the appeals -

3.1 That the accident occurred on 15.01.2001 between Maruti Van and ST Bus near Dhola Kuva-Fun World- aagad Sariyam Road. The said car was being driven in rash and negligent manner by the driver because of which the car collided with the ST Bus and the accident occurred. Due to the said accident deceased Omprakash, deceased Ashokkumar, deceased Kamlarani who were travelling in the said car received grievous injuries and succumbed to the injuries. The original claimant Basantlal Parshottam Shrivastav also received serious injuries and was required to be

C/FA/291/2008 JUDGMENT DATED: 17/12/2021

hospitalised. The FIR was lodged with the jurisdictional police station. The original claimants thereafter preferred Claim petitions being MACP No.986 of 2001 for the death of Omprakash and claimed compensation of Rs.25,00,000/-, MACP No. 988 of 2001 for death of Ashokkumar and claimed compensation of Rs.25,00,000/-, MACP No. 989 0f 2001 for death of Kamlarani and claimed compensation of Rs.3,00,000/-. MACP No. 990 of 2001 came to be filed by the injured claimant claiming compensation of Rs.8,00,000/-. Claimant Basantlal Parshottambhai had given his deposition vide exhibit 28. Documents such as FIR at exhibit 31, panchnama at exhibit 32, charge-sheet at exhibit 33, inquest panchnamas at exhibit 34, 37, 39 in the respective claim petitions, PM Note of Omprakash at exhibit 35, School transfer certificate at exhibit 36, PM note of deceased Ashok at exhibit 38, SSC Certificate of deceased Ashok at exhibit 39, PM Report of deceased Kamlarani at exhibit 41, Election card of deceased Kamlarani at exhibit 42 and other documentary evidence were relied upon. The Tribunal after appreciating the evidence on record and various contentions that were raised, was pleased to partly allow the claim petitions as under -

In MACP No.986 of 2001, the Tribunal assessed the income of the deceased to be Rs.10,000/-. As the deceased was unmarried, 2/3rd of the amount was deducted towards personal expense and thus applying multiplier of 17, the Tribunal awarded Rs. 6,80,136/- towards loss of dependency. The Tribunal also

C/FA/291/2008 JUDGMENT DATED: 17/12/2021

awarded Rs. 20,000/- towards loss of estate and Rs.4,000/- towards funeral expenses and thus awarded at total sum of Rs.7,04,136/- with 9% interest p.a.

In MACP No.988 of 2001, the Tribunal after considering the income of the deceased to Be Rs.10,000/- based on the certificate at exhibit 105, and deducting 2/3rd towards personal expenses and applying multiplier of 17 as the deceased was 31 years old, granted Rs. 6,80,136/- towards loss of dependency. The Tribunal further awarded a sum of Rs. 20,000/- toward loss of estate and Rs.4,000/- as funeral expenses. Thus, the Tribunal was pleased to award a total sum of Rs. 7,04,136/- with 9% interest to the original claimants.

In MACP No. 989 of 2001, the deceased Kamlarani who was 60 years old at the time of the accident was doing household work. The Tribunal considered the income of the deceased at Rs.2,000/- and deducting 1/3rd of the amount towards personal expense and applying multiplier of 8, awarded a sum of Rs.1,27,968/- towards loss of dependency. The Tribunal awarded RS. 10,000/- towards loss of estate and Rs.3,500/- towards funeral expenses and thus, awarded total compensation of Rs.1,41,468/-.

In MACP No. 990 of 2001, the claimant had produced income certificate at exhibit 114 and exhibit 96. Considering the deposition and documents produced, the Tribunal had assessed the income of the claimant to be Rs.6,000/-. Based on the certificate of the

C/FA/291/2008 JUDGMENT DATED: 17/12/2021

Doctor, the Tribunal considered the disability to be 35% and applying multiplier of 6, the Tribunal was pleased to award compensation of Rs. 1,51,200/- towards Future loss of income. The Tribunal was further pleased to award Rs.18,000/- towards actual loss of income, Rs. 30,000/- for pain, shock and suffering, Rs. 1,80,000/- for medical expenses and Rs.20,000/- towards travelling exp. special diet and attendant charges and thereby awarded total compensation of Rs.3,99,200/-.

And ultimately, it was provided by the Tribunal as under -

"FURTHER to safe-guard the interest of the Insurance Company, looking to the facts of these cases, the offending private car i.e. vehicle shall be attached as a part of the security. The owner is also directed to furnish the security for the entire amount which the insurer will pay to the present applicants. The Insurance Company may initiate proceeding before the Competent Executing Court to recover the amount deposited. The Insurance Company shall deposit the claim amount as per these claim petitions within THREE months from the date of this order."

Being aggrieved by the same, the present appeals are filed by the appellant-insurance company.

4. Heard Mr. H.G. Mazmudar, learned advocate for the appellant in all the appeals and Mr. Vilav Bhatia, learned advocate for respondent no.2 and Mr.Dharmesh J. Gurjar, learned advocate for respondents no. 3 and 7 and have also perused

C/FA/291/2008 JUDGMENT DATED: 17/12/2021

original Record and Proceedings.

5. Mr.Mazmudar, learned counsel appearing for the appellant has raised singular contention in all the four appeals to the effect that even though the Tribunal has rightly exonerated the insurance company, in view of the findings arrived at by the Tribunal, more particularly in para 26 of the impugned common judgment and award, the Tribunal has committed an error in imposing the principle of pay and recover upon the appellant. Mr. Mazmudar contended that having come to the conclusion that the insurance company is not liable, the Tribunal has wrongly passed the order of pay and recover, which deserves to be modified.

6. The learned counsel appearing for the respondents have supported the impugned award and have contended that as per the evidence on record, the Tribunal has committed no error in asking the insurance company to pay first and then recover.

7. The learned counsel appearing for the claimants vehemently submitted that the appeals being meritless, deserves to be dismissed ad the claimants are ultimately affected and their legitimate right of just and fair compensation is lost.

8. No other or further submissions have been made by the learned counsels appearing for the respective parties.

9. The only question, which arises in these appeals

C/FA/291/2008 JUDGMENT DATED: 17/12/2021

is whether the insurance company should be asked to pay first and then recover from the owner as if it is executing decree or not. It is an admitted position that the car involved in the accident was a private car which was being run for hire and reward. The said finding arrived at by the Tribunal is based on correct interpretation of the evidence on record and the same is not challenged by anybody. The said issue is squarely covered by the judgment of the Apex Court in the case of Manura Khatun and Ors. Vs. Rajesh Kumar Singh and Ors. reported in 2017(4) SCC 796 wherein the Hon'ble Apex Court has observed thus-

"15) This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) 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 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) Justice R.M. Lodha (as His Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under:

"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

C/FA/291/2008 JUDGMENT DATED: 17/12/2021

claimant and recover the same from the owner of the vehicle (Respondent 2 herein).

17. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, (2004) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation 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. vs. Saju P. Paul, SLP© No. 20127 of 2011 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(supra)."

18) The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Paul's case (supra) also having held that the victim was "gratuitous passenger", this Court issued directions against the Insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the Insured in the same proceedings."

10. In the case on hand also, similar fact situation arises and the Tribunal has therefore considered the

C/FA/291/2008 JUDGMENT DATED: 17/12/2021

fact that the deceased as well as the injured respectively travelling in the Maruti Car were gratuitous passenger, though the appellant insurance company deserves to be exonerated, the appellant insurance company as an insurer of the offending vehicle has to satisfy the award and then recover the same from the insured. Resultantly, the sole contention raised by Mr. Mazmudar for the appellant deserves to be answered in negative. The appeals therefore fail and are hereby dismissed. The impugned judgment and award stands confirmed. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

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