Gujarat High Court

Reliance General Insurance Co. ... vs Maluben Dayabhai Bambhaniya on 23 February, 2021

Bench: Vaibhavi D. Nanavati

         C/FA/2483/2020                                      JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/FIRST APPEAL NO. 2483 of 2020

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                   In R/FIRST APPEAL NO. 2483 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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

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 ?

==========================================================
                 RELIANCE GENERAL INSURANCE CO. LTD.
                               Versus
                    MALUBEN DAYABHAI BAMBHANIYA
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR CHINTAN S POPAT(5004) for the Defendant(s) No. 1,2,3
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 7
NOTICE SERVED(4) for the Defendant(s) No. 4,5,6,8
==========================================================

 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                  Date : 23/02/2021

                                 ORAL JUDGMENT

1. Admit. Mr. Chintan S. Popat, learned advocate for the

C/FA/2483/2020 JUDGMENT

respondents No.1 to 3 and Ms. Kirti S. Pathak, learned

advocate for the respondent No.7 waive service of

admission of appeal.

2. With the consent of the Learned advocates for the

respective parties, the appeal is taken for final hearing.

3. The brief facts of the case are as under:

3.1 Being aggrieved by the judgement/award of the

Motor Accident Claims Tribunal (Auxi.), and 2nd

Additional District Court Gir-Somnath at Una in M.A.C.P.

No.30 of 2015 dated 08.11.2019, the appellant has

preferred this appeal.

3.2 It is the case of the claimant that on 2.6.2014, driver

of the Tractor-Trolley drove his vehicle rashly and dashed

with house of claimants. As a result of which the house

of claimants got damaged and the claimants filed

M.A.C.P. Application under Section 166 of the Motor

Vehicles Act, 1988 (for short "the Act").

4. Learned advocate Mr.Rathin Raval appearing for the

appellant Insurance Company has submitted that the

appellant Insurance Company is not liable to satisfy any

C/FA/2483/2020 JUDGMENT

award beyond the statutory amount of Rs.6,000/- as the

insurance policy is an "Act only Policy" and the driver of

Tractor-Trolley was not holding valid driving license to

drive the transport vehicle on the date of accident. He

has further submitted that there is breach of provisions of

law. He has referred to Section 3 of the Motor Vehicles

Act and submitted that the claim petition requires to be

dismissed in absence of holding driving license. Section 3

of the Motor Vehicles Act reads as under :-

"(1) No person shall drive a motor vehicle in any public place unless he holds a effective driving license issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle (other than a motorcab or motorcycle) hired for his own use or rented under any scheme made under sub-section (2) of section 74 unless his driving license specifically entitles him to do so."

5. He has further submitted that as per the provisions of

law the owner of the vehicle has the full responsibility to

ensure that the driver has a valid and effective license.

He has referred to Section 5 of the Motor Vehicles Act

and submitted that in absence of holding valid license the

full responsibility is of the driver. Section 5 of the Motor

Vehicles Act reads as under :-

"Responsibility of owners of motor vehicles for contravention of sections 3 and 4 No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle."

C/FA/2483/2020 JUDGMENT

6. He has submitted that the owner of the vehicle has not

paid any premium to cover higher risk of high damage

and 3rd party property as it is an "Act only Policy" or

Liability only Policy. He has submitted that the Tribunal

has filed to appreciate the same. It is submitted that it

cannot travel beyond the contract of the policy and the

policy terms or conditions have to be strictly construed

and in the instant case risk of 3 rd party property damage

is not covered beyond Rs.6,000/. He has further

submitted that the Tribunal has also failed to appreciate

the statute itself. Section 147(2)(b) of the Act states as

follows:

"147. Requirement of polices and limit of liability. (2) Subject to the proviso to subsection. (1, a policy of insurance referred to in sub-section (1) shall cover any liability incurred in respect of any accident, up to the following limits, namely :- (a) save as provided in clause (b), the amount of liability incurred. (b) in respect of damage to any property of a third party, a limit of rupees six thousand".

7. Mr. Chintan S. Popat, learned advocate appearing for

the respondent No.1 has submitted that the impugned

order of the tribunal does not require interference and

the same is in consonance with the facts as well as legal

proposition.

C/FA/2483/2020 JUDGMENT

8. Learned advocate for the respondent has relied on the

decision dated 5.9.2019 rendered in First Appeal No.2449

of 2018 by the Coordinate Bench.

9. Heard the learned advocates for the respective parties

and also perused the relevant documents.

10. The tribunal, while assessing the quantum of the

compensation has observed thus:

"13. So far the quantum to the present petitioner is concerned, the petitioner has relied upon his affidavit- cum-deposition Ex.44 as well as documents. Claimant have produced documents herein this case with regard to the damages, occurred to his house due to this accident. However, no valuation report has been produced, but claimant has narrated all this things in his examination in chief in respect of the approximate cost of the damage has been occurred.

Simultaneously, perusing the photographs of the accident, it seems such damage narrated in the petition and sworn ed-affidavit. Hence, we hive cogent evidence with regard to the actual expense towards the repairing of the said house and to newly reconstruct reasonable and just amount of award is required to be passed. Under these circumstances, looking to the facts, circumstances and the relevant material, produced on record, this Tribunal is of the opinion that interest of justice would survive if compensation to the tune of Rs.2,00,000/- is awarded to the petitioners towards the damages caused to their house in the accident.

The petitioners are entitled to get total compensation amount of Rs.2,00,000=00 and making it round amount, the petitioners are entitled to get Rs.2,00,000=00 for the damage caused to the house."

14. The petitioner has also claimed interest at the rate of 18% p.a. However, a reasonable rate of interest is

C/FA/2483/2020 JUDGMENT

required to be awarded. In the reported case of 2019 JX (Guj) page 602 Bhartiben Mansukhbhai V/s Bhikhubhai Kurjibhai First Appeal No.1626 of 2019 dated 6th August 2019, the Hon'ble Gujarat High Court has granted 9% interest. Hence, I award interest at the rate of 9% p.a. on the amount of compensation.

Liabilities :-

15. So far the liability of paying the compensation is concerned, as discussed in para-13 of this judgment, the opponents No.1-4 Drivers of the offending vehicle are held liable for causing the accident. As per *he evidence, it is clear that at the relevant time, the opponent No.1 driver was driving said Tractor Chichis No. 860075, Engine No. S-325-1E 97143, Temporary No. GJ-W-11-AH-1346 and Trailor No. GJ-14-WU-9936. Since the Driver of such offending vehicle is held liable for causing this accident, he is primarily liable. As per records Opponent No. 2 and 4 are the owners of the vehicles. The master is liable for the tortuous act. Referring the insurance policy of the offending vehicle Tractor and Trailor, it is clear that at the relevant time, such vehicle was insured with the opponent No.3 & 5 Insurance Co. which was effective on the date of accident. Accordingly, it is quite apparent that such vehicle were insured with the opponent No.3/5-Insurer on the day of accident. The Insurer Is liable to indemnify its insured. Thus, under the above facts and circumstances, I hold the opponent No.3/5-Insurance companies are also liable to pay compensation to the petitioners."

11. After recording the necessary observations as well as

documentary evidence, the Tribunal has arrived at fixing

the compensation of Rs.2,00,000/-.

12. In view of the decision dated 5.9.2019 rendered in

First Appeal No.2449 of 2018 I am of the considered

C/FA/2483/2020 JUDGMENT

opinion, the Tribunal fell in error in not limiting the

liability to the appellant Insurance Company beyond the

statutory amount of Rs.6,000/. The Tribunal has failed to

examine the provision 147 (2)(b) of the Act. It is not in

dispute that the Tribunal could not have travelled beyond

the contract of the policy and terms and conditions