Gujarat High Court
Iffco Tokio General Insurance Co ... vs Prajapati Jankiben Miteshbhai on 4 February, 2021
Bench: Vaibhavi D. Nanavati
C/FA/341/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 341 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 341 of 2021
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IFFCO TOKIO GENERAL INSURANCE CO LTD
Versus
PRAJAPATI JANKIBEN MITESHBHAI
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 04/02/2021
ORAL ORDER
1. The present appeal has been filed under the provisions of Section 173
of the Motor Vehicles Act, 1988 (for short "the M.V. Act") challenging the
judgment and award dated 19.10.2020 passed by Motor Accident Claims
Tribunal (Aux.), Mahesana in Motor Accident Claim Petition being MACP
No.291 of 2015, wherein the tribunal has held that the claimant is entitled to
recover a sum of Rs.7,500/- as compensation with proportionate cost and
interest at the rate of 9% per annum from the date of claim petition till
realization from the opponents who are held jointly and severally liable to
pay the amount of compensation.
2. Learned advocate Ms.Kirti Pathak has submitted that the learned
tribunal has failed to accord adequate reasoning for not considering the
technical defense of risk of occupant is not covered under the liability only
policy. She has submitted that the learned tribunal has not appreciated
proviso of Section 147 of the M.V. Act. She has submitted that the contract
of insurance of the vehicle bearing registration No.GJ-24-A-9078 was not an
act only policy and risk of occupant was not covered.
C/FA/341/2021 ORDER
3. Learned advocate Ms.Kirti Pathak has submitted that the said policy
at Exh.3 of Jeep was an Act policy-liability only and risk of occupant was
not covered under the Act-Policy and also the owner of the Jeep had not
paid any premium of occupant. Thus, she has submitted that in such
circumstances Insurance Company should not have been saddled with
liability. She has submitted that the policy document clearly depicted that no
premium coverage has been taken of occupant and hence, Insurance
Company would not be liable. She has also submitted that the details of
written statement, wherein issue of coverage has been harped by the present
appellant. She has submitted that the legal officer had deposed before the
court to prove the issue of coverage. She has submitted that at the time of
accident the vehicle was used for Hire and Reward and hence, the appellant-
Insurance Company would have to be exonerated.
4. Learned advocate Ms.Kirti Pathak has submitted that the appellant
has already preferred appeal in a cognate matter arising out of same accident
in the Motor Accident Claim Petition No.219 of 2015 at Patan vide First
Appeal No.4285 of 2019, whereby the Coordinate Bench of this Court has
considered the issue involved and admitted the First Appeal and also granted
ad-interim relief. She has submitted that the Apex Court had occasion to
compare provision of Section 95 of the Motor Vehicles Act, 1939 with the
provision of Section 147 of the M.V.Act. She has placed reliance on the
judgment of the Apex Court in the case of New India Assurance Co.Ltd V/s.
Asha Rani, AIR 2003 SC 607 and submitted that the Apex Court had
interpreted provision of Section 147 of the M.V.Act and the Apex Court
further overruled the decision of Satpalsingh and has laid down that the term
"any person" used in the said provision mean "third party" not passenger. In
support of her submissions, she has placed reliance on the judgment of the
Apex Court in the case of National Insurance Company Limited V/s.
Balakrishnan, 2013 ACJ 199 (SC), the judgment of the High Court of
C/FA/341/2021 ORDER
Aurangabad in the case of The New India V/s. Lilabhai Shrimant Misal
passed in First Appeal No.1638 of 2013 and the judgment in the case of
Manager, National Insurance Co. Ltd. V/s. Sheela & Anr., 2008 (18) RCR
(Civil) 615
5. Learned advocate Ms.Kirti Pathak has submitted that the as per the
FIR, the claimants were travelling in the vehicle in capacity of passenger
beyond the seating capacity and hence, the appellant-Insurance Company
would not be liable to pay compensation. She has submitted that "Limitation
as to Use" on face of policy clearly states that the policy covers use of
vehicle for any purpose other then hire or reward, carriage of goods (other
than samples or personal luggage) organized racing, pace making speed
testing, reliability traits. She has also submitted that the learned tribunal has
not considered the interest component as per the current prevailing Bank
rates. She has further submitted that the tribunal has not considered proviso
to Section 34 of the Code of Civil Procedure, 1908 for assessment of
interest.
6. Having heard the learned advocate appearing for the appellant and
looking to the meagerness of amount awarded by the Tribunal to the tune of
Rs.7,500/- in the judgment and award dated 19.10.2020 passed in Motor
Accident Claim Petition being MACP No.291 of 2015, this Court is not
inclined to entertain the present appeal.
7. Accordingly, the appeal is dismissed. No order as to costs.
8. In view of the dismissal of the First Appeal, Civil Application does
not survive and the same is disposed of accordingly.
(VAIBHAVI D. NANAVATI,J)
ABHISHEK
