Gujarat High Court
Oriental Insurance Company ... vs Omkarsinh Harischandrasinh ... on 22 January, 2021
Bench: R.M.Chhaya
C/FA/365/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 365 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
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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 COMPANY LIMITED (SUBSIDIARY OF GEN. IN
Versus
OMKARSINH HARISCHANDRASINH JADEJA & 4 other(s)
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Appearance:
MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1
MS AMRITA AJMERA(5204) for the Defendant(s) No. 1
SERVED BY AFFIX. (R)(67) for the Defendant(s) No. 2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
MR KIRTIDEV R DAVE(3267) for the Defendant(s) No. 4,5
MR RAHUL K DAVE(3978) for the Defendant(s) No. 4,5
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 22/01/2021
ORAL JUDGMENT
C/FA/365/2010 JUDGMENT
1. Feeling aggrieved and dissatisfied with the
judgment and order dated 31.7.2009 passed by
the Motor Accident Claims Tribunal (Main),
Surendranagar in MACP no.916 of 1997, the
appellant - insurance Company has preferred
this appeal under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as
"the Act").
2. Following noteworthy facts emerge from the
record of the appeal:
Suffice it to note that the accident occurred
on 13.2.1997, wherein two vehicles are
involved i.e. Ambassador car bearing
registration no. GJ13 9792 and truck involved
in the accident bearing registration no. GJ2
P7374. As per the record, it transpires that
the accident occurred on SurendrangarMuli
road, near Godavari Village. An FIR came to be
lodged at Exh.88 and Panchnama at Exh.89. The
claim petition was filed by the claimant and
claimed compensation of Rs.2,00,000/. The
Tribunal, after Taking into consideration the
oral evidence as well as documentary evidence
on record, considered the disability as agreed
between the parties at 15% of the body as a
whole as per Exh.101 as well as certificate at
Exh.102 and came to the conclusion that the
C/FA/365/2010 JUDGMENT
original claimant had increased 25% of the
disability of the body as a whole. The
Tribunal assessed the notional income of the
claimant at Rs.750/ per month and applying
multiplier of 16, awarded an amount of
Rs.1,20,000/ as compensation under the future
loss of income. Over and above the same, the
Tribunal was pleased to award Rs.25,000/ as
medical expenses, Rs.3,000/ for special
food/diet, Rs.5,000/ towards transportation
charges and Rs.3,000/ towards attendance
charges, Rs.15,000/ for pain, shock and
suffering and thus, awarded total compensation
of Rs.1,71,000/ with 9% interest from the
date of the claim petition till its
realization. Being aggrieved by the same, the
present appeal is filed by the insurance
Company.
3. Heard Ms. Karuna Rahevar, learned advocate for
the appellant, Ms. Amrita Ajmera, learned
advocate for the respondent no.1 original
claimant, Mr. H.G. Mazmudar, learned advocate
for respondent no.3 insurance Company and
Mr. Rahul Dave, learned advocate for Mr.
Kirtidev R. Dave, learned advocate for
respondents no.4 and 5. Though served, no one
appears for the respondent no.2.
C/FA/365/2010 JUDGMENT
4. Ms. Karuna Rahevar, learned advocate for the
appellant has submitted that the Tribunal has
not appreciated the fact that the policy of
Ambassador Car involved in the accident was
"T.P. policy only A type". It was contended
that as can be seen from the certificatecum
policy schedule at Exh.110, it was contended
that it was "T.P. policy only A type". It was
therefore contended that the policy being "act
only policy", the insurance Company cannot be
made liable for the claim raised by the
original claimant as he was occupant in a
private vehicle. It was also contended that
except additional premium of Rs.15/ for
personal accident, no further or other risk
has been indemnified by the appellant. Ms.
Rahevar has relied upon the judgment of the
Hon'ble Apex Court in the case of National
Insurance Company Limited Vs. Balakrishnan &
Anr, AIR 2013 SC 473 to support her
contention.
5. Ms. Ajmera, learned advocate for the claimant
has submitted that the question of liability
is kept open by the Tribunal and therefore,
the claimant should not be made to suffer and
the compensation be paid to the claimant. It
was contended that even if this Court thinks
it fit to remand back the proceedings, the
compensation as awarded by the Tribunal should
C/FA/365/2010 JUDGMENT
be paid to the claimant as liability of the
insurance Company and the owner is to be
decided.
6. Mr. Rahul Dave, learned advocate for Mr.
Kirtidev Dave, learned advocate for
respondents no.4 and 5 i.e. owner and driver,
submitted that the amount involved is only
Rs.51,000/ and therefore, on smallness of
amount, the appeal deserves to be dismissed.
Relying upon the observations made by the
Tribunal in Paragraphs 23 and 24, it was
contended that the Tribunal has correctly
appreciated the evidence in form of the policy
at Exh.110. It was also contended that the
Tribunal has already observed that the
liability of opponent no.6 i.e. present
appellant is not conclusively answered in the
sense that if as per the terms and conditions
of the policy, the opponent no.6 is not liable
to indemnify the owner and in that case, it
would be open for the appellant to establish
its case in separate proceedings. It was
therefore contended that the appeal is
meritless and the same deserves to be
dismissed.
7. Mr. H.G. Mazmudar, learned advocate for the
other insurance Company has contended that
though in the certificatecumpolicy schedule,
C/FA/365/2010 JUDGMENT
it is mentioned "T.P. policy only A type" i.e.
"act only policy", the conditions which are
attached in the said certificate are all
comprehensive/package policy and therefore,
the appellant is liable to satisfy the award.
On inquiry being made, the learned advocate
for the insurance Company candidly submitted
that the other insurance Company - respondent
no.3 herein i.e. New India Assurance Company
Limited has accepted the award and not
challenged the same. It was therefore
submitted that the appeal may be dismissed.
8. No other or further submissions, grounds
and/or contentions are made by the learned
advocates appearing for the respective
parties.
9. I have considered the submissions made and
have also perused the original record and
proceedings. As far as the contention of
smallness of amount is concerned, the fact
remains that the total compensation as granted
by the Tribunal is Rs.1,71,000/ and in such
facts, it cannot be said that the amount
involved is small. May be the liability of the
present appellant is only to the tune of
Rs.51,000/ with interest as awarded by the
Tribunal. On perusal of the certificatecum
policy schedule, it clearly transpires that
C/FA/365/2010 JUDGMENT
the policy type was "T.P. policy only A type".
The insured has paid premium of Rs.160/
towards third party and Rs.15/ towards
personal accident. It may be noted that
Exh.110 ends there. Thereafter, in the
original record, it is found that a schedule
of insurance policy is annexed, wherein it is
written that "it is canceled" and there is an
endorsement that "it is relating to private
car policy type B policy". The Tribunal, while
dealing with the liability issue, has kept the
issue open and left it to the wisdom of the
present appellant to establish its case in
separate proceedings and recover the amount
from the owner or insurer. Even considering
the submissions made by Mr. Dave, in opinion
of this Court, a specific contention was
raised as can be seen from the observations of
the Tribunal in Paragraph 22 of the judgment
and therefore, this Court finds that there is
no consideration of the same and such
contention on law is raised by the learned
advocate for the appellant. At this stage, it
would be appropriate to refer to the judgment
of the Hon'ble Apex Court in the case of
Balakrishnan (supra), wherein it is observed
thus:
"21. "In view of the aforesaid
factual position, there is no
C/FA/365/2010 JUDGMENT
scintilla of doubt that a
"comprehensive/package policy" would
cover the liability of the insurer
for payment of compensation for the
occupant in a car. There is no cavil
that an "Act Policy" stands on a
different footing from a
"Comprehensive/Package Policy". As
the circulars have made the position
very clear and the IRDA, which is
presently the statutory authority,
has commanded the insurance companies
stating that a "Comprehensive/Package
Policy" covers the liability, there
cannot be any dispute in that regard.
We may hasten to clarify that the
earlier pronouncements were rendered
in respect of the "Act Policy" which
admittedly cannot cover a third party
risk of an occupant in a car. But, if
the policy is a
"Comprehensive/Package Policy", the
liability would be covered. These
aspects were not noticed in the case
of Bhagyalakshmi (supra) and,
therefore, the matter was referred to
a larger Bench. We are disposed to
think that there is no necessity to
refer the present matter to a larger
Bench as the IRDA, which is presently
the statutory authority, has
clarified the position by issuing
circulars which have been reproduced
in the judgment by the Delhi High
Court and we have also reproduced the
same.
22. In view of the aforesaid legal
position, the question that emerges
for consideration is whether in the
case at hand, the policy is an "Act
Policy" or "Comprehensive/Package
Policy". There has been no discussion
neither by the tribunal or the High
C/FA/365/2010 JUDGMENT
Court in this regard. True it is,
before us, Annexure petitioner no.1
has been filed which a policy is
issued by the insurer. It only
mentions the policy to be a
"comprehensive policy" but we are
inclined to think that there has to
be a scanning of the terms of the
entire policy to arrive at the
conclusion whether it is really a
"package policy" to cover the
liability of an occupant in a car.
23. In view of the aforesaid
analysis, we think it apposite to set
aside the finding of the High Court
and the tribunal as regards the
liability of the insurer and remit
the matter to the tribunal to
scrutinize the policy in a proper
perspective and, if necessary, by
taking additional evidence and if the
conclusion is arrived at that the
policy in question is a
"Comprehensive/Package Policy", the
liability would be fastened on the
insurer. As far as other findings
recorded by the tribunal and affirmed
by the High Court are concerned, they
remain undisturbed."
10. Even considering the submissions made by the
learned advocates appearing for the respective
parties, the fact remains that the type of
policy is an important aspect to establish the
liability. Even while passing the order and
asking the insurance Company to pay first and
then to recover from the owner or driver, this
Court finds that though a specific contention
was raised and the certificate was placed on
C/FA/365/2010 JUDGMENT
record at Exh.110, the Tribunal has not
considered the said aspect. In light of the
aforesaid therefore, the impugned judgment and
award deserves to be quashed and set aside and
the proceedings of MACP no.916 of 1997
deserves to be restored back. As far as the
contentions raised by Ms. Ajmera is concerned,
it transpires from the record that the
claimant has received 30% of the amount and
rest are invested in view of the directions
issued by this Court hereinbelow, the interest
of the claimant also will be taken care of.
11. Accordingly, the appeal is allowed. The
proceedings of MACP no.916 of 1997 are
restored back to the file of Motor Accident
Claims Tribunal, Surendranagar and the
Tribunal shall decide the issue of "act only
policy" keeping in mind the ratio laid down by
the Hon'ble Apex Court in the case of
Balakrishnan (supra) and shall decide the
issue of type of policy after giving an
opportunity of hearing to all the sides as
provided in this judgment. The Tribunal shall
also permit and give one more opportunity to
all the parties to adduce additional evidence
as provided by the Hon'ble Apex Court in the
case of Bhalkrishna (supra). As the appeal is
filed by the insurance Company only, the same
would apply only on the aspect of policy
C/FA/365/2010 JUDGMENT
concerned and liability of the appellant and
the insured only. Rest of the findings are not
disturbed. The Tribunal shall therefore decide
the liability of the appellant and that of the
insurance policy as expeditiously as possible.
Rest of the impugned judgment and award
remains unaltered. As the accident is of year
1997, the Tribunal shall give utmost priority
to the claim petition and after giving an
opportunity of being heard to all the parties,
shall decide the claim petition as observed in
this judgment and order as expeditiously as
possible, but not later than three months from
the date of receipt of this judgment and
order.
12. By order dated 14.5.2010 passed in Civil
Application no.2035 of 2010, this Court has
directed the Tribunal to invest the amount
deposited by the appellant in fixed deposit.
The said amount shall remain in fixed deposit
till final disposal of the claim petition by
the Tribunal. The interest thereof be paid to
the respondentsoriginal claimants. The
appeal is thus allowed only to the aforesaid
extent. Registry is directed to send the
original record and proceedings back to the
Tribunal forthwith. However, there shall be no
order as to costs. As this appeal is filed
only by the appellant-original opponent no.6,
C/FA/365/2010 JUDGMENT
the observations made in this judgment shall
apply only to the present appellant.
(R.M.CHHAYA, J)
MRP
