National Insurance Co Ltd vs Legal Heirs Of Decd. Gobarbhai ...
2021 Latest Caselaw 4670 Guj

         C/FA/225/2012                                           JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.              225 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

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

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 ?

==========================================================
                  NATIONAL INSURANCE CO LTD
                             Versus
     LEGAL HEIRS OF DECD. GOBARBHAI ARJANBHAI DAMASIYA & 7
                            other(s)
==========================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
DECEASED LITIGANT(100) for the Defendant(s) No. 6
MR BHARAT V SHAH(3960) for the Defendant(s) No. 1,2,3,4,5
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 8
RULE SERVED(64) for the Defendant(s) No.
6.1,6.2,6.3,6.4,6.5,6.6,7
==========================================================

    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                             Date : 24/03/2021

                               ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied by the judgment and award dated 04.11.2011 passed by

C/FA/225/2012 JUDGMENT

the Motor Accidents Claim Tribunal (Main), Rajkot, in MACP No. 584 of 2006, the insurance company of motorcycle bearing registration No. GJ­3AD­4462 involved in the accident has filed the present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The following facts emerge from the record of the appeal ­

2.1 The accident took place on 20.08.2005 at 7.30 PM near village Gundala within the local limits of Jasdan Police Station between the motorcycle bearing registration no. GJ­3AD­ 4462 and Motor Cycle bearing registration No. GJ­3AR­5446. Because of the accident, the pillion rider of motorcycle bearing registration No. GJ­3AD­4462 succumbed to the injuries and died. An FIR was lodged with the jurisdictional police station and the present claim petition was preferred under Section 166 of the Act and claimed compensation of Rs. 3 lakhs. It was the case of the claimants

2.2 It was the case of the claimants that the deceased was earning Rs. 3 lakhs per annum. The insurance policy of the motorcycle bearing registration no. GJ­3AD­4462 came to be produced at exhibit 54. The original claimant Maganbhai Gobarbhai Damasiya came to be examined at exhibit 43 who has deposed the

C/FA/225/2012 JUDGMENT

manner in which the accident has taken place. The documents such as FIR at exhibit 44, panchnama of the scene of accident at exhibit 45, charge­sheet at exhibit 46, injury certificate at exhibit 47, PM report at exhibit 48, village form no.6 at exhibit 50,

showing the deceased as owner of agricultural were produced.

2.3 The Tribunal though came to the conclusion that the insurance police at exhibit 54 was "act only" policy, covering the risk of the motorcycle bearing GJ­3AD­4462, while partly allowing the claim petition, awarded Rs. 1,42,500/­ with 9% interest from the date of filing of the claim petition till its realisation and provided that the appellant insurance company as well as the other opponents are jointly and severally liable. Being aggrieved by the same, the insurance company of the motorcycle bearing registration no. GJ­3AD­4462 has preferred this appeal.

3. Heard Mr. Maulik Shelat, learned advocate for the appellant, Mr. Vibhuti Nanavati, learned advocate for respondent no.8, the other insurance company and Mr. Bharat Shah, learned advocate appears for respondent no. 1 to 5. Though served, no one appears for the other respondents.

C/FA/225/2012 JUDGMENT

4. Mr. Shelat, learned advocate appearing for the appellant has contended that the Tribunal has misread the insurance policy produced at exhibit

54. Mr. Shelat contended that though the Tribunal was conscious enough that the said policy was "act only policy" with limited liability, the appellant insurance company has also been made liable. Mr.Shelat further contended that it is a matter of fact that the deceased was a pillion rider of motorcycle bearing registration no. GJ­3AD­4462, the risk of pillion rider was not covered as it was "act only policy". Mr. Shelat further relied upon the judgment of the learned Single Judge of this court in the case of United India Insurance Company Ltd. Vs. Ramdevbhai Dahyabhai Mokaria and Ors. in First Appeal No. 505 of 2015 and contended that the appellant insurance company deserves to be exonerated.

5. Mr. Vibhuti Nanavati, learned advocate appearing for the respondent no.8 insurance company submitted that the insurance policy at exhibit 54 is an "act only policy" and as the risk of the pillion rider is not covered, the appellant insurance company would not be liable to satisfy the award. Mr. Nanavati therefore submitted that this Court may pass appropriate orders.

6. No other or further submissions have been made by the learned advocates appearing for the parties.

        C/FA/225/2012                                                 JUDGMENT




7. I      have         perused           the       original           Record           and

Proceedings and considering the sole contention raised by Mr. Shelat, the insurance policy at exhibit 54 deserves to be examined. It deserves to be noted that the Tribunal while examining the same, has noted the fact that it is "act only policy". On bare perusal of the insurance policy at exhibit 54, it clearly transpires that it is a liability only policy wherein the risk of the pillion rider was not covered. The learned Single Judge of this Court in United India Insurance Co. Ltd. (supra), after considering catena of decisions on the aspects has categorically held that if an "act only policy" exist, the insurance company cannot be fastened with the liability of compensation in relation to pillion rider.

8. In view of the above therefore, the Tribunal has committed an error in fastening the liability upon the present appellant, i.e., the insurance company of motorcycle bearing registration no. GJ­3AD­4462 and the appellant insurance company deserves to be exonerated. However, it is clarified that as liability is joint and several, the insurance company of the other vehicle, i.e., GJ­3AR­5446, being the New India Assurance Co. Ltd., shall be liable to satisfy the award. The appellant therefore stands exonerated as the policy in concern being exhibit 54 is "act only policy" wherein the risk of the deceased who was pillion rider is not

C/FA/225/2012 JUDGMENT

covered. However, the liability is joint and several, it would be open for the claimants to recover the same from the other insurance company, i.e., insurance company of motorcycle bearing registration no. GJ­3AR­5446. The record indicates that the appellant has already deposited its share, i.e., 50% of the amount as awarded and so also 50% amount is deposited by the other insurance company of motorcycle bearing registration no. GJ­3AD­4462, the Tribunal shall therefore disburse the said amount in favour of the claimants as per the award and respondent no.8 shall deposit the remaining 50% of the amount, which shall be refunded to the appellant insurance company. The impugned judgment and award stands modified to the aforesaid extent. The appeal stands partly allowed. However, there shall be no order as to costs.

(R.M.CHHAYA, J) BIJOY B. PILLAI