National Insurance Company Ltd vs Yogeshkumar Hathisinh Chavda
2022 Latest Caselaw 10085 Guj

      C/FA/479/2018                             JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 479 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

3     Whether their Lordships wish to see the fair copy                No
      of the judgment ?

4     Whether this case involves a substantial question                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                  NATIONAL INSURANCE COMPANY LTD.
                               Versus
               YOGESHKUMAR HATHISINH CHAVDA & 4 other(s)
================================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 4
UNSERVED EXPIRED (R) for the Defendant(s) No. 3
===============================================================
    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                            Date : 14/12/2022
                            ORAL JUDGMENT

[1] The insurance company is in appeal in connection with the judgment and award dated 24.07.2017 in M.A.C.P.No. 1082 of 2015 by Motor Accident Claim Tribunal (Aux.), Nadiad. The appeal is preferred on several grounds including the income assessed of the deceased and the dependency of the claimant on the deceased.

       C/FA/479/2018                          JUDGMENT DATED: 14/12/2022




[2]     However, during the course of argument, learned advocate for

the appellant has pointed out that the Tribunal has committed an error in exonerating the respondent Nos.4 and 5, who are shown to be the owner and insurer of the Trolley attached to the Tractor and involved in the accident. It is submitted that the Tractor and the Trolley is a composite part of the vehicle and cannot be segregated. He relied upon the decision of this Court in the case of United India Insurance Company Limited v/s. Manjulaben Pursshottamdas Patel & Ors, reported in 1994 (1) GLR 269 in this regard.

[3] Learned advocate appearing for the respondent-claimant has submitted that the award of the Tribunal need not to be interfered with as the correct parameters have been applied while assessing the claim of the respondent-claimant.

[4] The Court has heard learned advocates for the parties and perused the documents placed on record. As the short issue is involved in the matter regarding apportioning the liability of the vehicle and the insurance company, it is established that the incident has taken place, wherein the vehicle consisting of a Tractor bearing No.GJ-1-LQ-4836 and Trolley attached to it bearing No.GJ- 1-DX-8607 was being driven in a rash and negligent manner, causing an accident with a person walking and thereby causing death of Veenaben @ Meenaben. The reasoning adopted by the Tribunal in para-13 by accepting the arguments that the Tractor was being driven by opponent No.1 (since deleted) and owned by opponent No.2A and was insured with the appellant company and it was on account of the negligent driving of the Tractor that the accident took place and therefore, the owner and the insurance company of the Trolley are not held to be liable , In the opinion of the Court, is agai9nst the decision of the Apex Court in case of

C/FA/479/2018 JUDGMENT DATED: 14/12/2022

United India Insurance Company Limited v/s. Manjulaben Pursshottamdas Patel (Supra), where this Court has held as under:-

".....The insurer was bound to satisfy the award passed in favour of the claimant. The court also held that it could not be argued that though the trailer was attached to the tractor and only tractor was driven by driver, the accident could be said to have been caused by tractor and not by trailer which was accompanying it when both the tractor as well as trailer jointly dashed against coming Ambassador car which was occupied by the insured claimant at the relevant time. The insurance company, therefore, could not urge with any emphasis that it was not liable. The court concluded that it was the tractor which put the trailer in motion and it was as a result of the negligent driving of the tractor by its driver that the accompanying trailer got dashed with the Ambassador car. Consequently, it could not be said that only trailer was involved in the accident and not the tractor. In the instant case also two separate registration numbers have been given to tractor and to trailer and by combined policy both of them have been insured with the insurance company. In our opinion, therefore, the Tribunal was not right in making distinction between trailer and tractor and by holding insurance company liable on the basis that the deceased was a third party vis-a-vis tractor."

[5] Similarly, in case of Pravinchandra Jivraj Mehta v/s. Lalbhai Melabhai Vasava & Ors., reported in 1982(2) GLR 582, on the same issue the Court has held as under:-

" 69. So far as second contention, viz. that there is an over all limit of Rs. 50,000/qua each claimant, is concerned, we may mention here one submission of Mr. Chhatrapati. Mr. Chhatrapati's contention jg that even though respondent no. 4 insurance company had insured the tractor as well as the trailer by separate two policies exs. 6 and 97 wherein for accidental risk, pertaining to each of the two insured vehicles, liability to third parties as per .Provisions of sec. 95(1) and (2) of the Motor Vehicles Act would be confined to in all Rs. 50,000/-even though for each insured vehicle there was a separate policy. Mr. Chhatrapati submitted that the accident can be said top have been caused by driving of tractor and the trailer which was separately insured by ex. 97 was merely attached to the tractor and hence no liability would arise for the insurance company under the policy ex. 97.

In other words, according to him, policy ex. 97 would be completely

C/FA/479/2018 JUDGMENT DATED: 14/12/2022

otiose and inoperative and would foist no liability on the insurance company. It is difficult to accept the aforesaid highly technical submission of Mr, Chhatrapati. The fact remains that on charge of premium, the insurance company has separately insured the owner of the tractor as well as trainer by two separate policies, exs. 96 and 97 and under each of the policies, the insurance company has made itself liable so far as third party liabilities are concerned to make good the Act liability arising out of any accident wherein the insured tractor and trailer were involved, In the preset case, in the accident in question, insured tractor as well as trailer were both involved and the accidental injuries caused by the use of both of them in a public place to third party claimants are required to be compensated for and for these damages, the insurer is called upon to satisfy the awards passed in favour of the concerned injured claimants. It cannot be said that even though trailer was attached to the tractor and only tractor was being driven at the relevant time by the driver, the accident can be said to have been caused only by the tractor and not by the trailer which was accompanying it when both the tractor as well as the trailer jointly dashed against the oncoming Ambassador car which was occupied by the insured claimants at the relevant time. Thus, the accidental injuries to the third parties were caused by both the injured vehicles. The insurance company, therefore, cannot urge with any emphasis that the accidental injuries were caused to the third parties only by the tractor and not by the trailer which also was admittedly insured against third party risk and which also contributed its mite in causing the accidental injuries to third party claimants. Both the insured vehicles Jointly contributed their strength in causing of the accidental injuries to the injured claimants and hence, the insurance company which has separately insured both the vehicles by two separate policies will have to make good the Act liabilities arising out of the injuries caused to the injured third Party claimants on account of the accident caused by both these insured vehicles. It is interesting to note that Mr. Chhatrapati Company submitted in this behalf that the Ambassador car which was occupied by the injured claimants at the relevant time dashed with the trailer which was insured under policy, ex. 97. But so far as insured tractor insured under policy ex. 96 was concerned, it did not dash with the, car. That makes no difference to the resulting liability of the insurance company out of the accident : caused by both the vehicles. The trailer could not have moved by itself as it was attached to the tractor which was being driven by the driver of the tractor-trailer. Thus, it was the tractor which put the trailer in motion and it was as a result of the negligent driving of the tractor by its driver that the accompanying trailer got dashed with. the Ambassador car. Consequently, it cannot be said that only trailer was involved and not the tractor in the present accident. In fact, but for the tractor to which. the trailer was attached, the trailer would not have been at the place where it was at the time of accident. It is, therefore, obvious that the accident in question was

C/FA/479/2018 JUDGMENT DATED: 14/12/2022

Cause by the combined operation of both the tractor and the trailer which were separately insured by the insurance company under two different policies exs. 96 and 97, Mr. Chhatrapati then raised a futile argument that in any case the trailer was not a motor vehicle as covered by m provisions of the Motor Vehicles Act. A mere look at the definition of sec, 2(28) shows that "motor vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion a _ transmitted thereto from an external or internal source and includes a- chassis to which a body has not been attached and a trailer; but doc not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises, The aforesaid definition in terms includes a trailer to which power of propulsion may be transmitted from an external source like a tractor to which it is attached. It is, therefore, obvious that both the tractor and the trailer were motor vehicles as covered by the definition of the term of 'motor vehicle" under sec. 2(18) of the Motor Vehicles Act and both of them jointly caused the accidental injuries to third parties, viz. the injured claimants."

[6] In view of the aforesaid legal position, the Court is inclined to hold that the Tribunal has erred in exonerating the original opponent Nos.4 and 5-respondent Nos.4 and 5 herein of the liability of the accident. The Court is therefore, of the view that the respondent No.5-Insurance Company of the Trailer is also equally liable for paying the compensation as awarded by the Tribunal. In view of the aforesaid, the award of the Tribunal stands modified to the extent that respondent Nos.4 and 5 are held jointly and severally liable to the extent of 50% of the amount awarded toward the compensation. The remaining award remains unaltered.

[7] It is directed that upon due verification the amount of compensation may be disbursed to the claimant.. It is also directed it is open for the appellant to directly recover the 50% of the compensation being liability of the respondent no. 4 and 5 from these respondents. The appeal is partly allowed.

(A.Y. KOGJE, J) SIDDHARTH