Hdfc Ergo General Insurance ... vs Irfanbhai Maksudbhai Shaikh
2021 Latest Caselaw 6637 Guj

     C/FA/2121/2020                               ORDER DATED: 22/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2121 of 2020

==========================================================
                HDFC ERGO GENERAL INSURANCE CO.LTD.
                               Versus
                    IRFANBHAI MAKSUDBHAI SHAIKH
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR ARPIT P PATEL(5497) for the Defendant(s) No. 1
PRITHU PARIMAL(9025) for the Defendant(s) No. 5
RULE SERVED(64) for the Defendant(s) No. 2,3,4
==========================================================

 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                              Date : 22/06/2021

                               ORAL ORDER

Having regard to the compass of the only issue involved, and with consent and request of learned advocates appearing for the parties, the present First Appeal was taken up for final consideration.

2. Preferred by the appellant- Insurance Company under Section 173 of the Motor Vehicles Act, 1988, the appeal is directed against judgment and award dated 6.2.2020 passed by the Motor Accident Claims Tribunal (Auxiliary) Kheda at Nadiad in Motor Accident Claims Petition No.654 of 2018, thereby the Tribunal has held that the claimant is entitled to Rs.4,05,100/- from the opponents jointly and severally with interest at the rate of 9% to be calculated from the date of filing of the petition till realization.

3. Noticing the facts in brief, the vehicular accident occurred on 22.11.2017 when the claimant was travelling in Wagon-R bearing registration No.GJ-18-AB-5819. When the Wagon-R was driven by opponent No.1, at the place of accident one pig came

C/FA/2121/2020 ORDER DATED: 22/06/2021

on the road, due to which the driver applied break and the car was pulled over in the wrong side to dash with the transportation bus bearing registration No.GJ-18-Y-7865 from opposite direction. The claimant sustained serious injuries including fractures and filed the Claim Petition. The Claims Tribunal proceeded to adjudicate the claim. The respondent No.3 Insurance Company- appellant herein filed its written statement and also produced the copy of insurance policy on record after framing the issues and considering documentary evidence, the total compensation was awarded by the Tribunal.

3.1 The claimant was aged 24 years, multiplier of 18 was applied. Injury was assessed by Tribunal as 15% for body as whole on the basis of the medical certificate. The total compensation of Rs.4,05,100/- was divided into Rs.1,29,600/- towards future economic loss, Rs.2,44,500/- towards medical bills, Rs.15,000/- in respect of the pain, shock and suffering, Rs.8,000/- each under the head of special diet, attendant and transportation as well as actual loss.

4. Having gone through the case and the assessment of compensation as above done by the Claims Tribunal, the amount awarded is just compensation not liable to be interfered with. Even otherwise, the quantum is not under challenge.

4.1 The only ground raised by the appellant Insurance Company in this appeal, and argued by learned advocate for the appellant is that the insurance policy of the car was an 'Act Only Policy' and the risk of passenger occupant was not covered under the said policy. It was submitted that even extra premium was not paid. It was submitted that deceased was not third party

C/FA/2121/2020 ORDER DATED: 22/06/2021

within the statutory definition under the Act and under the terms and conditions of the policy. It was submitted that the Insurance Company could not have been held liable and award of compensation could not have been passed to the appellant- Insurance Company.

4.2 While the grounds mentioned in the memorandum of the appeal indicates that the appellant has sought to question the award to be paid with interest at 9% in the course of hearing, learned advocate for the appellant did not press such aspect.

5. From the copy of the written statement below Exhibit 21 and insurance policy, it transpires that on behalf of the appellant- Company a specific contention was raised in the written statement that the insurance policy of the Wagon- R insured with the appellant- Company did not cover the risk of occupant and that it was only the 'Act Only Policy'. In paragraph No.17 of the written statement his contention is found in the following words,

"Further, the opponent no.(3) submits that the opponent no (3) has issued a Private Car Liability Only Policy to the owner (opponent no.2) and hence as per policy clause the policy does not cover risk of occupant as no extra premium is paid and thus it is case of breach of policy condition insurance company is not liable to pay any compensation."

5.1 Even as the above contention was subsequently raised in the written statement and submitted before the Claims Tribunal, it could be seen on perusal of the impugned judgment and award that the Tribunal has not considered the same. No discussion is supplied by Tribunal in the said aspect at all.

       C/FA/2121/2020                          ORDER DATED: 22/06/2021




5.2    On the aspect of liability, paragraph No.8 of the judgment

contains the only discussion which do not refer the above bearing aspect to the nature of the policy with which the vehicle was insured.

5.3 Paragraph No.8 of the Motor Accident Claims Tribunal is reproduced herein under which shows that the aspect about the nature of policy is entirely ignored by the Tribunal in its discussion and reasoning to arrive at final award.

"8. Liability- So far the liability is concerned, as discussed above, driver of Wagon-R bearing registration No.G.J.18.AB.5819 was solely negligent for the occurrence, hence owner is vicariously liable to pay compensation and as at the time of accident the insurance of the said Wagon R bearing registration No.G.J.18.AB.5819 was in force, therefore, the Insurance Company is liable to indemnify the owner, hence present opponents No.1, 2 & 3 are jointly and severally liable to pay awarded compensation amount to the claimant. The opponent Nos.4 & 5 are hereby exonerated. Hence, I decide issues No.2 partly in affirmative."

6. In the above view, when the aspect to the nature of policy which may have material bearing in entire controversy has been overlooked and the contention of the Insurance Company in that regard is not taken into account nor any discussion about the said aspect in the award, the proceedings deserves to be remanded to the Tribunal for running fresh judgment and award after considering the said aspect. The parties are required to be permitted to adduce evidence on the said issue of nature of the policy.

       C/FA/2121/2020                          ORDER DATED: 22/06/2021




6.1    In order that the Claims Tribunal is enabled to consider the

matter a fresh in the above light, the impugned judgment and award to the extent that it holds the appellant- Insurance Company jointly and severally to pay the amount is set aside. The rest of the award on quantum shall operate.

7. The Motor Accident Claims Petition No.654 of 2018 is remitted back to the Motor Accident Claims Tribunal (Auxiliary), Kheda at Nadiad with liberty to the appellant- respondents to adduce evidence on the aspect of nature of policy. The Tribunal shall consider the said aspect with regard to the evidence brought on record and shall render fresh judgment and award within a period of four months from the date of receipt of present order.

7.1 It is clarified that this Court has not expressed any opinion on the merits of the said aspect. Nor the setting aside of the judgment and award to the extent above has any reflection on the merits of the case, which shall be considered by Tribunal in accordance with law and on the basis of the evidence adduced.

8. It was stated that pursuant to the stay granted by this Court in Civil Application No.1 of 2020, awarded amount has been deposited by the Insurance Company with the Tribunal. While the proceedings are remanded as above, the passage of time should not prejudice the claimants, therefore disbursement out of the total deposited amount should sub serve the ends of justice.

8.1    The following directions are issued while disposing of the






          C/FA/2121/2020                                    ORDER DATED: 22/06/2021




present appeal.


(i)       Out of the total amount deposited by Insurance Company,

30% of the amount shall be disbursed in favour of the original claimants. The Tribunal shall pay the amount after undergoing procedure of verifying identity of the claimants while transmitting the amount directly in the savings account of the claimants.

(ii) The remaining 70% shall be invested by the Tribunal in Cumulative Fixed Deposit with nationalized bank initially for a period of one year and renewable.

(iii) The Fixed Deposit receipt shall remain with the custody of Nazir of the Tribunal and shall not be entitled to raise any loan or financial assistance on the basis of the invested amount in the fixed deposit.

9. The direction in the main judgment for disbursement and investment of the awarded amount shall stand modified in terms of the directions herein above.

10. The present appeal stands disposed of accordingly.

(N.V.ANJARIA, J) Manshi