New India Insurance Co vs Ushaben Chandravadan Gandhi
2022 Latest Caselaw 4055 Guj

     C/FA/1128/2013                                CAV JUDGMENT DATED: 08/04/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1128 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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 ?

========================================================== NEW INDIA INSURANCE CO Versus USHABEN CHANDRAVADAN GANDHI & 5 other(s) ========================================================== Appearance:

MR GC MAZMUDAR(1193) for the Appellant(s) No. 1 MR HG MAZMUDAR(1194) for the Appellant(s) No. 1 MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3

RULE SERVED for the Defendant(s) No. 5,6 ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 08/04/2022

CAV JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company, being aggrieved and dissatisfied with the judgment and award dated 29.09.2012 passed by the Motor Accident Claims Tribunal (Aux.),

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Surat in Motor Accident Claim Petition No. 38 of 2009, by which the Tribunal has awarded compensation of Rs.2,89,700/- with 9% per annum interest to the claimants - respondent Nos.1 to 4, holding Opponent Nos.1 to 3 liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 The respondent No.1 - Ushaben Chandravadan Gandhi is a widow, respondent Nos.2 & 3 are the sons and respondent No.4 is a father of the deceased - Chandravadanbhai. At the time of accident, deceased - Chandravadanbhai was aged about 57 years old and was earning Rs.1,08,000/- annually as mechanic and doing transport business also. On 03.10.2008 at about 1:45 p.m., deceased - Chandravadanbhai was called by Original Opponent No.2 - Dilipbhai Champakbhai Gandhi - owner of the truck for repairing his truck bearing registration No.GJ-19-T-721, deceased - Chandravadanbhai went there, he opened the bonnet, at that time, the bonnet has fallen down on the head of the Chandravadanbhai and he has received grievous injuries on the head. Therefore, he was taken to the SMIMER Hospital, Surat and was thereafter shifted to the Surat General Hospital, Surat, where he succumbed to the injuries. Deceased - Chandravadanbhai was only bread earner of the family, therefore, the claimants have lost their bread earner and also lost his love and affection to the family. Therefore, the claim petition is filed to get the compensation of Rs.10,00,000/- with 18% p.a. interest from the Opponent Nos.1 to 3 i.e. driver, owner and insurance company.

2.2 Notices were served to the opponents. Opponent No.1 - driver has filed his reply at Exh.22 by disputing his liability from the payment of compensation. The opponent No.2 - owner of the vehicle has filed his written statement at Exh.23 by disputing his liability as the deceased himself was responsible for causing such accident.

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Opponent No.3 - insurance company has filed its written statement at Exh.17 by disputing all the averments made by the claimants in the claim petition and also disputed the liability by stating that the said accident is occurred due to the negligence of the deceased himself and moreover, Section 64(v)(b) of the Motor Vehicles Act, 1988 is not complied with and therefore, the insurance company is not liable for payment of compensation.

2.3 The Tribunal has framed the issues at Exh.28. Thereafter, the examination-in-chief of the widow - Ushaben Chandravadan Gandhi has been recaorded. She was also cross-examined by the other side. The claimants have also produced documentary evidence; like F.I.R. at Exh.32, Panchnama at Exh.33, P.M. notes at Exh.35, insurance policy of the vehicle at Exh.36, R.C. book of the vehicle at Exh.37, driving licence of the deceased at Exh.38, medical papers and bills of treatment as well as I.T. returns for the last three years at Exh.45, 46 & 47, etc., and original opponent No.3 in the claim petition has produced the insurance policy at Exh.51 and no other documentary evidence is produced by the opponents in the claim petition. After considering documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding Rs.2,89,700/- compensation with 9% per annum interest to the claimants.

2.4 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal. The present appeal is preferred by insurance company on the various grounds.

3.1 Learned advocate Mr. G.C. Mazmudar for the appellant - insurance company has submitted that the accident is occurred in the premises of railway dockyard when the repair work was going one and the said truck was lying in stationary position. Therefore, as

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per the provision of the Motor Vehicles Act, 1988, the accident is not occurred in the public place and therefore, the liability of the insurance company cannot be fastened as the said accident does not fall under the provisions of the Motor Vehicles Act, 1988. Further, he has submitted that though, the premises - a railway dockyard is a 'public place', then the additional submission is that the insurance company has no liability for the risk of the deceased - mechanic and there is no contractual liability for the mechanic, covered under the insurance policy. Therefore, the insurance company cannot be held liable for payment of compensation.

3.2 He has further submitted that looking to the entire incident, F.I.R., Panchnama and nature of the work of repairing carried out by the deceased, it can easily be presumed that the deceased himself is solely negligent and therefore, the Tribunal has attributed the liability to the extent 50:50% between the mechanic - deceased and the driver, which is incorrect. He has submitted that the Tribunal ought to have attributed 100% negligence to the deceased - mechanic for the said accident. Further, he has not seriously disputed the aspect of the quantum in the present appeal. Further, he has submitted that the present appeal is on the contention that the place of accident is not a public place and therefore, provisions of the Motor Vehicles Act, 1988 is not applicable, therefore, the Tribunal has wrongly considered the liability of the driver of the vehicle to the tune of 50%, looking to the documentary evidence available on record. Further, he has submitted that the Tribunal has erred in not properly considering the fact that the driver was not present at the time of accident and the vehicle was stationary in position in private premises, therefore, the insurance company cannot be held liable. He has drawn the attention of this Court to the provisions of Section 2(34) of the Motor Vehicles Act, 1988, which is

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as under:

"2(34) "public place" means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;"

3.3 Moreover, learned advocate for the appellant has submitted that the risk is of the mechanic, who is a third party to the insurance policy, cannot be covered under the insurance policy. Therefore, the insurance company cannot be held liable for payment of compensation to the claimants. He has relied on the policy which is produced by the insurance company at Exh.51 and has submitted that no risk of mechanic is covered under the insurance policy.

3.4 Further, he has submitted that the liability of insurance company is wrongly fastened by the Tribunal. He has relied on the decision of the Hon'ble Apex Court in the case of Mamtaj Bi Bapusab Nadaf & Ors. reported in (2010) 10 SCC 536. Therefore, he prays to allow the present appeal by exonerating the insurance company from the liability of payment of compensation.

4.1 Per contra, learned advocate Mr. Hiren M. Modi for the claimants has contended that the Tribunal has rightly considered the judgment and award against the insurance company as the insurance company has taken the same contention before the Tribunal and the Tribunal has dealt with the contention appropriately. After considering the various judgments, ultimately, the Tribunal found that the claimants are entitled to get the amount of compensation as well as other tortfeasors are liable to pay the amount of compensation to the claimants. Further, he has pointed out that the

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railway dockyard can certainly be considered as public place.

4.2 Further, he has submitted that in the case of vehicle lying stationary in position and if the accident occurs, then the accident can be considered as arising from the use of motor vehicle. Therefore, he has submitted that the application under Section 166 of the Motor Vehicles Act, 1988 for getting compensation is perfectly maintainable and the said accident is clearly arisen from the use of the motor vehicle, which clearly transpires from the record of the case. Further, he has submitted that the Division Bench of this Court has considered the aspect of place in the judgment reported in 1998 (1) T.A.C. 538 (Gujarat) in the case of United India Insurance Co. Vs. Gujarat Ship Trading Corp. The Tribunal has considered the provisions of Section 2(34) of the Act for the purpose of considering the 'public place'. Further, he has relied on the decision of the Hon'ble Apex Court in the case of New India Assurance Company Vs. Yadu Sambhaji More & Ors. report in 2011 ACJ 584, more particularly Para : 15 and has submitted that the Hon'ble Apex Court has also considered the aspect of "Use of Motor Vehicle", which is squarly application to the facts of the present case.

4.3 Further, he has submitted that the deceased was working as a mechanic of the motor vehicles and the deceased was called for by Opponent No.2 - owner of the vehicle for repairing of his truck. Further, he has submitted that while the deceased was repairing the truck which was lying in the railway dockyard, the bonnet was opened somehow all of a sudden, the bonnet has fallen down on the deceased - mechanic and therefore, deceased has received injuries and thereafter, he succumbed to the injuries. Therefore, in any case, it cannot be said that the accident is not occurred in the public place as defined in Section 2 (34) of the Motor Vehicles Act, 1988 and also

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it cannot be said that the said accident is not occurred "arising out of use of motor vehicle". Further, he has submitted that the Tribunal has committed error in apportioning the negligence to the tune to 50:50% to the driver of the vehicle and the deceased, which should be 100% to the driver of the vehicle. Further, he is considered as in- charge of the vehicle and he should have taken more precautions at the time of repairing the vehicle. In that case, the Tribunal has apportioned 50:50% contributory negligence, which cannot be said erroneous for the purpose of considering the negligence, which is attributed by the driver of the vehicle in causing of such accident. Further, he has relied on the decision of this Court in the case of National Insurance Co. Ltd. Vs. Gitaben Saitansinh Rajput & Ors. reported in 2010 ACJ 784, where in the case murder in the truck and the driver was found dead on the driver's seat, the murder was committed by some unknown person, this Court has taken a view that the death of the driver was arisen out of the use of motor vehicle and therefore, Motor Accident Claims Tribunal has jurisdiction to entertain such petition. Therefore, he prays to dismiss the present appeal.

5.1 I have heard learned advocates for the rival parties. I have minutely perused the record and proceedings. I have gone through the pleadings of the parties and evidence available on record. I found that the said accident is occurred in the railway dockyard when the deceased - Chandravadanbhai was repairing the said truck, who was called for by the owner of the truck for repairing his truck. When he was repairing the truck after opening its bonnet in the railway dockyard, the accident is occurred as bonnet has fallen down on the head of Chandravadanbhai and he received serious injuries and ultimately he succumbed to the injuries. I appreciate the contentions raised by the learned advocate for the appellant about the premises,

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which cannot be considered as public premises, in view of Section 2(34) of the Motor Vehicles Act, 1998. The judgment of this Court in the case of United India Insurance Co. Vs. Gujarat Ship Trading Corp. reported in 998 (1) T.A.C. 538 (Gujarat), where Division Bench of this Court has discussed the issue of public place as defined in Section 2(34) of the Motor Vehicles Act, 1988, where, in that case, the accident has taken place which does not occupied by the claimant and claimant suffered loss of goods and therefore, in that case the Division Bench has found that in case of public place where public can access without restrictions or even limited with pass, it could be characterized as 'public place'. The facts of the present case are on better footing. The truck is lying in the railway dockyard, the railway premises is certainly considered as public place where the employees and other persons can easily have access and therefore, the contention of the insurance company raised by learned advocate for the appellant regarding the provisions of Section 2(34) of the Motor Vehicles Act, 1988 about the public place is not well founded and therefore, is rejected.

5.2 Further, the another contention raised by learned advocate for the appellant that the application for compensation under Section 166 of the Motor Vehicles Act, 1988 is maintainable only if the accident is occurred "out of use of motor vehicle". In the present case, as per his submission, the deceased - Chandravadanbhai was repairing the truck, the truck was stationary in position and the deceased was third party as he was a mechanic and he was neither a clearer nor a driver, therefore, the insurance company cannot be held liable to pay the amount of compensation as the risk of the mechanic is not covered under the insurance policy. To appreciate this contention in the present case, it is admitted position that deceased - Chandravadanbhai was a mechanic of the vehicles, he

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was called for by the owner of the truck for repairing his truck, and while repairing his truck, the accident is occurred as bonnet gets fallen down on the head of the deceased, this Court has taken into consideration the decision of the Hon'ble Apex Court in the case of Yadu Sambhaji More & Ors (supra), more particularly Paras : 13, 14 and 15, which are as under :

"13. In a given case, on the basis of the evidences later on adduced before it in the main proceeding under section 110A of the Act, it may be possible for the Claims Tribunal to arrive at a finding at variance with the finding recorded by a superior court on the same issue on an application under section 92A of the Act. But the variant finding by the tribunal must be based on some material facts coming to light from the evidences led before it that were not available before the superior court while dealing with the proceeding under section 92A of the Act. In this case, however, as correctly noted by the High Court, the position is entirely different. It is true that the case Shivaji Dayanu Patil arose from the claim for no-fault compensation under section 92A but all the material facts were already before the court and all the contentions being raised now were considered at length by this Court in that case. In Shivaji Dayanu Patil the Court took note of the relevant facts in paragraphs 2 and 3 of the judgment. In paragraph 4 of the judgment, the Court noted the three limbs of argument advanced by Mr. G.L. Sanghi, learned counsel appearing for the owner of the petrol tanker in support of the plea that the explosion and fire in the petrol tanker could not be said to be an accident arising out of the use of a motor vehicle. Paragraph 4 of the judgment reads as under:

"4. Shri G.L. Sanghi, the learned Counsel appearing for the petitioners, has urged that in the instant case, it cannot be said that the explosion and fire in the petrol tanker which occurred at about 7.15 A.M., i.e., nearly four and half hours after the collision involving the petrol tanker and the other truck, was an accident arising out of the use of a motor vehicle and therefore, the claim petition filed by the respondent could not be entertained under Section 92-A of the Act. Shri Sanghi has made a three-fold submission in this regard. In the first place, he has submitted that the petrol tanker was not a motor vehicle as defined in Section 2(18) of the Act at the time when the explosion and fire took place

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because at that time the petrol tanker was lying turtle and was not capable of movement on the road. The second submission of Shri Sanghi is that since before the explosion and fire the petrol tanker was lying immobile it could not be said that the petrol tanker, even if it be assumed that it was a motor vehicle, was in use as a motor vehicle at the time of the explosion and fire. Thirdly, it has been submitted by Shri Sanghi that even if it is found that the petrol tanker was in use as a motor vehicle at the time of the explosion and fire, there was no causal relationship between the collision which took place between the petrol tanker and the truck at about 3 A.M. and the explosion and fire in the petrol tanker which took place about four and half hours later and it cannot, therefore, be said that explosion and fire in the petrol tanker was an accident arising out of the use of a motor vehicle."

14. After having considered each of the 3 limbs of Mr. Sanghi's arguments and having rejected all of them, the Court, in paragraph 37 of the judgment, held and observed as follows:

"37. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on the sloping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle viz. the petrol tanker

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No. MKL 7461."

15. We have examined the evidences of the OWs adduced before the Claims Tribunal, in particular the depositions of Shivaji Patil, the owner of the petrol tanker, who examined himself as OW1 and Dhondirama Mali, the driver of the ill- fated petrol tanker who was examined as OW2. We have also gone through the judgment of the Tribunal. In the evidences of the OWs, there was no new material fact that wasn't already before this Court in Shivaji Dayanu Patil. And on the basis of the evidences led by the opposite party, no new points were raised before the Claims Tribunal, that can be said to have not been raised before this Court in Shivaji Dayanu Patil. The High Court was, therefore, perfectly justified in observing in paragraph 26 of the judgment coming under appeal as follows:

"... But whether the vehicle was in use or not was a question before the Supreme Court and even after evidence that aspect has not changed. Time at which the accident occurred, viz. catching the fire by the petrol has remained the same. The circumstances preceding this particular point have also remained the same. The manner in which the petrol tanker came near the spot and how it was hit by a vehicle or truck coming from opposite direction also remained the same even after evidence and therefore when facts which were before the Supreme Court have not at all changed inspite of the full trial and evidence, the judgment of the Supreme Court has to be accepted and taken as a concluded judgment so far as the issue as to whether the vehicle was "in use" or "arising out of the use of the motor vehicle", fully and concluding. Secondly, questions before the Supreme Court was about the interpretation of the words "arising out of use of motor vehicle". The situation namely occurring explosion to the petrol tanker has not changed so far as this particular aspect is concerned...."

5.3 The contention of the learned advocate for the appellant about the non-maintainability of Section 166 application as it cannot be considered arising from "use of motor vehicle" as provided in Section 165 of the Act, is also not well founded and is rejected, keeping in mind the observations of the Hon'ble Apex Court, as noted above.

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5.4 Further, another contention of the learned advocate for the appellant that looking to the F.I.R. and Panchnama as the deceased has not taken precaution while repairing the truck, the bonnet has fallen down on him and therefore, the decease - Chandravadanbhai was solely negligent and no negligence can be attributed to the driver of the truck more particularly, the driver of truck was not present at the time of accident, is not well founded from the record. If we look at the F.I.R. and Panchnama, the accident is occurred due to careless approach of the driver of the vehicle who was gone to the other place when the vehicle was getting repaired. In fact, he should be in-charge of the vehicle, he should be remained present and should help the mechanic in repairing their vehicle. Therefore, If we consider the aspect of contributory negligence, the Tribunal has not committed any error in considering the negligence to the extent 50:50%. This aspect has been rightly discussed by the Tribunal in its judgment in Paras : 11 & 14. Therefore, the Tribunal has not committed any error in attributing negligence to the driver and the deceased to the extent 50:50%. Therefore, this contention is also not acceptable and required to be rejected. Except the abovementioned contention, no other contention is raised by the learned advocate for the appellant. Further, the reasoning given by the Tribunal is found just and proper and in accordance with law and in consonance with the pleadings and evidence available on record. Therefore, no interference is called for by exercising powers under Section 173 of the Motor Vehicles Act, 1988 and therefore, the present appeal is required to be dismissed.

6. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their

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families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.

7. With the above observations, the following order is passed:

7.1 The present First Appeal is dismissed, with no order as to costs.

7.2 The amount, deposited by the insurance company and lying in the FDR and/or with the Tribunal, shall be paid to the claimants, within a period six weeks from the receipt of the order, by following due procedure, by way of account payee cheque, after proper verification.

7.3 Record and Proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE