The National Insurance Company ... vs Chandrakantbhai Chotabhai ...
2021 Latest Caselaw 3831 Guj

     C/FA/2302/2020                                                JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2302 of 2020
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                     In R/FIRST APPEAL NO. 2302 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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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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                THE NATIONAL INSURANCE COMPANY LIMITED
                                 Versus
                  CHANDRAKANTBHAI CHOTABHAI PARMAR
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
 for the Defendant(s) No. 6,6.2
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3,4
NOTICE SERVED(4) for the Defendant(s) No. 5,6.1,6.3
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 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 05/03/2021

                            ORAL JUDGMENT

1. This appeal has been filed u/s 173 of MV Act by original

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opponent no.3-insurance company of rickshaw involved in accident thereby challenging the judgement & award dated 30-11-2019 passed by the MACT, (Aux) @ Anand in MACP 408 of 2013.

2. This Court issued notice for final disposal by its order dated 01-12-2020 and with consent of learned advocates for the respective parties, present appeal is taken up for final disposal. Though served none appears for respondent no.5 & 6/1 to 6/3 (original opponent no.1 & 2/1 to 2/3).

3. The short facts of case appears to be that deceased bhartiben was travelling in Auto Rickshaw No. GJ-23-X-0066 on 24-04-2013 which was driven by her husband i.e. chandrakantbhai - claimant no.1. The respondent no.5 herein came with his tractor-trolly no. GJ-23-B-1169/GJ-23-T-5890 and dashed with above said rickshaw, thereby she sustained serious injuries and succumbed to the same. The husband and children of deceased Bhartiben have filed claim petition seeking compensation of Rs. 10,00,000/ from driver & owner of above said tractor-trolly as well as insurance company of rickshaw i.e. present appellant. After hearing parties, learned Tribunal has found both the drivers of vehicles involved equally negligent for causing accident. Likewise, considering facts & circumstances of case, learned Tribunal has awarded in all Rs. 7,50,400/ with 9% from date of claim petition till realization. The learned Tribunal apportioned award amongst claimants in the ratio i.e. 30% award to husband and 20% each to three children.

4. Learned advocate Mr. Maulik Shelat for appellant has submitted that;

A. The learned Tribunal has erred in not appreciating that insurer of rickshaw could not have been held liable to pay compensation in

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absence of joining insured-owner of rickshaw. The insurer has to indemnify liability of insured than in absence of insured, no liability could have been fastened upon insurer.

B. The learned Tribunal has erred in not considering the fact that driver cum owner of insured rickshaw happens to be husband of deceased, upon being found equally negligent for causing accident, the share of husband-tort feasor requires to be sliced down.

In support of his submission, learned advocate Mr. Shelat has relied upon two decisions of this Court, (1) reported decision in 1986 (2) GLR 986 in a case of NEW INDIA ASSURANCE COMPANY LIMITED V/S HITENDRASINH RATANSINH SOLANKI AND ORS and (2) delivered on 11-12-2019 in FA/2367/2019 in a case of National Insurance Company Ltd. V/s Maniben wd/o Punambhai Khristi. Lastly he has submitted to allow appeal and quash the impugned judgement and award.

5. Per Contra, Ld. Advocate Mr. Hiren Modi appearing for original

claimants 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 and made following submissions.

A. The appellant has never disputed its liability before tribunal by contending interalia that due to non-joining of owner of rickshaw, no award can be passed against insurance company. The said contention was required to be taken before the learned Tribunal then the claimants could have made such contention and curative steps could have been taken before tribunal during course of trial.

C/FA/2302/2020 JUDGMENT

B. It is true that husband of deceased happens to be driver cum owner was joined as claimant no.1 in claim petition but children of deceased were minor than being natural guardian as well, he was required to be joined as claimant in petition. There is no infirmity in award while holding insurance company liable to pay compensation. In any case, insurance company having covered risk of occupant of rickshaw can not avoid its statutory liability to pay compensation.

C. The risk of deceased being occupant in insured rickshaw was covered than to receive compensation is statutory right of legal heirs of deceased being victim of road accident can not be defeated merely because insured was not joined in claim petition more particularly when insurance company has not disputed its liability on the ground of any breach of conditions of policy. He submitted that the matter can be remanded to the Tribunal thereby transposing the claimant No.1 as opponent then after fresh award can be passed by the learned tribunal.

D. It is true that claimant no.1 happens to be husband of deceased one of recipient of award and also joint tort-feasor than in view of decision of this court in a case of Maniben wd/o Punambhai Khristi (supra), his share of award requires to be sliced down.

E. The learned Tribunal has not appreciated that claimants are Class-I legal heirs of deceased than entitle to receive compensation in equal proportion. Further, ratio fixed by Tribunal is without any reasons and justification. There appears to be apparent mistake in the ratio fixed amongst claimants as total comes to 90% i.e. claimant No.1 30%, claimant No.2 20%, claimant no.3 20%, claimant no.3 20%. According to claimants, it should have been 25% each to claimants than share of husband i.e. claimant No.1 - 25% to be sliced down from total awarded amount.

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6. Learned advocate Mr. Shelat in rejoinder conceded to position that had claimant no.1 transposed as opponent during course of trial than insurance company could not have avoided its liability to pay compensation having covered risk of occupant of rickshaw in policy. He has fairly stated that instead of remanding matter back to tribunal by transposing claimant no.1 as opponent, this court may decide his second contention in accordance with law.

7. No other and further submissions have been advanced by either side.

8. Heard learned advocate of respective parties and gone through impugned judgement/award. As such there is no dispute raised by either side on issue of negligence & quantum awarded by tribunal. Thus, I have not examined the said aspect except legal issues raised by appellant.

9. As far as first issue raised by Mr. Shelat is concerned, in view of rejoinder submission of Mr. Shelat and having accepted situation that owner of rickshaw was joined in claim petition but in different status and if he being transposed as opponent than insurance company could not have avoided its liability to pay compensation than I would not like to delve much on issue having conceded and accepted by appellant that it is liable to pay compensation.

10. As far as second issue raised by Mr. Shelat about slicing down share of husband of deceased from total compensation being tort-feasor is well founded and supported by decision of this hon'ble court in a case of Maniben wd/o Punambhai Khristi (supra). The tribunal has while deciding issue of liability has not appreciated that claimant no.1-husband of deceased happens to be driver cum

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owner of rickshaw being tort-feasor not entitle to receive compensation. The issue involved in matter is squarely covered by decision of this hon'ble court in a case of Maniben wd/o Punambhai Khristi (supra), wherein it has been observed as under;

"In the case on hand also, as observed hereinabove and even as per the insurance policy at Exhs.20 and 40/1, respondent no.1 - Nitinkumar who is the owner of the said vehicle happens to be the son of the deceased who was a pillion rider. The accident has occurred because of the negligence on the part of the driver cum owner of the motorcycle and therefore, following the ratio laid down by this Court in the case of Minor Himaniben (supra) and in the case of Kiritikumar Tulsibhai Patel (supra), as the drivercum owner happens to be the son of the deceased and he being a tort feasor is not entitled to any compensation. In the case on hand, as there are 3 heirs, one third amount from the total compensation awarded would be the share of respondent no.2 who happens to be the tortfeasor himself and under such circumstances, onethird of the amount of total compensation therefore is required to be sliced down. Having come to the aforesaid conclusion therefore, out of the total compensation of Rs.29,52,463/ awarded by the Tribunal, one third amount i.e. Rs.9,84,154/ deserves to be sliced down and the respondentsoriginal claimants would be thus entitled to Rs.19,68,309/ as compensation, which is rounded to Rs.19,68,500/ with 9% interest per annum from the date of filing of the claim petition till its realization."

Learned advocate Mr. Modi has also fairly conceded and accorded his assent that share of husband of deceased i.e. claimant no.1 required to be sliced down as he is joint tort-feasor. Thus, there is a broad consensus amongst learned advocate of respective

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parties that share of claimant no.1-husband happens to be tort- feasor requires to be sliced down. However, learned advocate Mr. Modi has contended that Class-I legal heirs of deceased i.e. 4 claimants requires to get compensation in equal ratio than requested to slice down 25% share of claimant no.1 (husband of deceased) out of Rs. 7,50,400/. Mr. Shelat has also agreed to such proposition that Class-I legal heirs requires to get equal share of compensation.

11. Thus, in view of above said facts & circumstances of case and following ratio of decision in a case of Maniben wd/o Punambhai Khristi (supra), in present case there are four Class-I legal heirs (claimants) than all get equal shares i.e. 25% each, than share of husband of deceased-claimant no.1 happens to be driver cum owner of rickshaw and tort feasor not entitle to receive compensation. Accordingly, share of claimant no.1 being tort-feasor requires to be sliced down from total compensation. Having come to the aforesaid conclusion therefore, out of the total compensation of Rs. 7,50,400/ awarded by the Tribunal, one fourth (25%) amount i.e. Rs.1,87,600/ deserves to be sliced down and the respondents no. 2 to 4 (original claimants no. 2 to 4) would be thus entitled to receive compensation of Rs. 5,62,800/ with 9% interest per annum from date of claim petition till its realization from original opponents including appellant jointly & severally.

12. Accordingly, appeal is partly allowed to aforesaid extent. The civil application for stay also stands disposed of. There shall be no order as to cost. The impugned judgement and award of Tribunal stands modified and the respondents no. 2 to 4 (original claimants no. 2 to 4) are entitled to receive compensation of Rs. 5,62,800/ with 9% interest per annum accordingly. The rest of judgement and

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award remains unaltered. The original opponents including appellant shall deposit above said awarded amount jointly and severally within eight weeks from date of receipt of this judgement before the Tribunal.

13. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED