Patel Hifzurehman Ismail vs Karud Isabhai Musabhai
2021 Latest Caselaw 18569 Guj

     C/FA/1479/2010                                JUDGMENT DATED: 20/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 1479 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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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                          PATEL HIFZUREHMAN ISMAIL
                                    Versus
                      KARUD ISABHAI MUSABHAI & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                               Date : 20/12/2021

                                ORAL JUDGMENT

1. The present Appeal is filed by the original claimant against the judgment and award dated 30.08.2008 passed by the Motor Accident Claims Tribunal (Main), Bharuch in Motor Accident Claim Petition No.416 of 2005 and allied matters.

2. The facts giving rise to the present appeal may be

C/FA/1479/2010 JUDGMENT DATED: 20/12/2021

summarized as under:

2.1 On 15.03.2005, the appellant/ori. applicant along with his friend and relatives was going to village: Mangrol for taking visit of the opponent no.2 as his guests in the Jeep, bearing registration No.GJ-09-B-4939. The said Jeep belonged to the opponent no.2. It is the case of the appellant/ori. applicant that because of driving the Jeep at full speed, rashly and negligently by the opponent No.1, the opponent no.1 lost control over the Jeep and therefore, the accident had taken place. The FIR being C.R. No. I - 15 of 2005 also came to be registered.

2.2 It is the case of the appellant/ori. applicant that the opponent no.2 is the registered owner of the Jeep and is also employer of the opponent no.1 and the Jeep involved in the accident was insured with the opponent no.3 and therefore, all the opponents nos.1, 2 and 3 are jointly and severally liable to pay the compensation. The appellant/ori. applicant along with other applicants filed MACP No.416 of 2005, MACP No.417 of 2005 and MACP No.354 of 2005, arising out of the same and common accident for awarding a compensation of Rs.7,00,000/-, Rs.25,000/- and Rs.9,999/- respectively.

2.3 The learned Motor Accident Claims Tribunal by its order dated 30.08.2008 passed in the MACP No.416 of 2005 and allied matters held the opponents nos.1 and 2 jointly and severally liable to pay the amount of Rs.1,54,000/-, Rs.1500/- and Rs.1500/- to the respective claimants of the respective claim petitions along with proportionate costs and running interest at the rate of 9% p.a. from the date of filing of the claim petition till the realization.

C/FA/1479/2010 JUDGMENT DATED: 20/12/2021

2.4 While partly allowing the Motor Accident Claim Petition, the learned Motor Accident Claims Tribunal exonerated the respondent No.3 - Insurance company by observing that the appellant is traveling in jeep car for which the insurance policy is limited to the extent and extra premium covered passenger risk is paid by the original owner.

2.5 Being aggrieved by the said judgment award, the appellant is here before this Court with the present First Appeal.

3. Learned counsel for the appellant has raised contention that while delivering the impugned judgment and award, the learned Tribunal has not considered the ratio laid down by this Court in its true and prospective spirit. He further contended that the learned Judge has committed error by arriving at a conclusion that the Insurance company is not liable to pay the compensation and thereby committed grave error. The learned counsel appearing for the appellant has relied upon the reported decision of this Court in case of Oriental Insurance Company Limited Vs. Aswinkumar P. Upadhyay and Others reported in 2019 Law Suit(Guj.) 383, passed in First Appeal No.3378 of 2007, 3379 of 2007 and 3380 of 2007.

4. Though the Notice served upon the concerned respondents including the respondent - Insurance company, none remained present.

5. Having heard the learned counsel appearing for the appellant and considering Record and Proceedings of the Motor Accident Claims Tribunal, I am of the opinion that the present

C/FA/1479/2010 JUDGMENT DATED: 20/12/2021

Appeal is required to be allowed to the extent that though the Insurance company could not be held liable, but at the same time, the Tribunal passed an order to the effect that initially, the impugned award is satisfied by the Insurance company and subsequently recovered the said amount from the owner of the vehicle-in-question.

6. In the case of Oriental Insurance Company Limited (Supra), this Court has held in paragraphs 14 to 17 as under:

"14. This Court, in First Appeal No.3431 of 2005 with First Appeal No.200 of 2008 in a similar facts of the case and issue, has taken a view that however the insurance company was not held liable to pay the amount of compensation to the claimants, it shall satisfy the award to the claimants and was permitted to recover the amount deposited by the insurance company from the owner of the motor vehicle with the interest awarded to the claimants and for such purpose, insurance company shall not have to institute any fresh proceedings.

15. Similar view was also taken by this Court in First Appeal No.1263 of 2011; First Appeal No.1392 of 2006; First Appeal No.1887 of 2007 with First Appeal No.2440 of 2007.

16. The Hon'ble Supreme Court in 2017 (4) SCC 796 as well as JT 2018 (8) SC 418, while allowing the appeal directed the insurance company to pay the awarded sum to the claimants, and thereafter, permitted to recover the entire deposited sum from the owner/insured of the offending vehicle in the very proceedings by filing execution application against the insured.

17. Considering the similar facts of the case, however, no evidence of Act Only policy was produced by the present appellant which is permitted to raise before this Court, no risk of any passengers was covered as per the policy, liability of the present appellant can not be fastened by the Tribunal and impugned judgment and award passed by the Tribunal would require to be modified absolving the present appellant from paying the amount of compensation to the claimants. However, applying the ratio laid down by the Hon'ble Apex Court, the present appellant - original opponent No.4 shall pay the amount of compensation to the claimants and satisfy the impugned award. However, the present appellant may recover the amount deposited by it from the owner of the motor vehicle with interest as awarded by the Tribunal from the date of deposit till the same is received by the appellant. For such purpose, the appellant would not needed to file any fresh proceedings."

C/FA/1479/2010 JUDGMENT DATED: 20/12/2021

7. In view of above, the appeal partly succeeds. The impugned order of the learned Tribunal is modified to the extent that the order of exonerating the Insurance company passed by the Tribunal is hereby confirmed. But it is modified to the extent that initially, the awarded amount of Rs.1,54,000/- along with 9% interest shall be deposited before the Tribunal within a period of eight weeks from the date of receipt of the order and subsequently, the Insurance company shall recover the said amount from the owner of the jeep car involved in the accident. The award of Tribunal is modified to the aforesaid extent.

8. Record and Proceedings be sent back to the concerned Tribunal forthwith by the Registry. No order as to costs.

(HEMANT M. PRACHCHHAK,J)

NEHA