Gujarat High Court
Maheshbhai Himmatbhai Solanki vs Khemaranbhai Muktarambhai ... on 23 December, 2022
Bench: Ashokkumar C. Joshi
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2124 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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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 ? Yes
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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MAHESHBHAI HIMMATBHAI SOLANKI
Versus
KHEMARANBHAI MUKTARAMBHAI CHOUDHRI
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
MR KIRIT R PATEL(2802) for the Defendant(s) No. 3
MR TANMAY B KARIA(6833) for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 23/12/2022
ORAL JUDGMENT
1. This First Appeal is filed by the appellant - original claimants
under Section 173(1) of the Motor Vehicles Act, 1988, (for short 'M V
Act') against the judgment and award dated 21.03.2018 passed in
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
Motor Accident Claim Petition No. 1935 of 2015 (old M.A.C.P.
No.1574 of 2004) by the Motor Accident Claims Tribunal (Aux.) & 5 th
Additional District Judge, Vadodara at Savli, which was preferred
under Section 166 of the MV Act, whereby, against a claim valued at
Rs.4,00,000/- for the injuries sustained in an accident that had
occurred on 07.07.2004, the Tribunal has awarded a sum of
Rs.71,500/- with interest at the rate of 9% per annum from the date
of claim petition till realization, holding liable the opponents therein
to pay the compensation to the appellant - original claimant.
Hence, grieved claimant has filed this appeal on the point of
quantum.
2. It was the case of the appellant - complainant that on
07.07.2004 the claimant proceeded towards Ahmedabad by way of
riding Tanker No. GTK-2296 for unloading the oil in a very moderate
speed on correct side of the N.H. No.8 and when he reached near
the Patia of Gohelnagar, Anand, District, at that time, the driver of
the Truck No. GJ-8-U-1106 came in rash and negligent manner with
an excessive speed and lost his control over the vehicle and came
on wrong side and dashed with the tanker. As a result, the claimant
sustained serious bodily injuries. Accordingly, the appellant -
complainant has filed this appeal for enhancement of compensation.
3. Though served none appears for the respondent No. 1. Heard,
learned advocate Mr. Mohsin M. Hakim for the appellant and learned
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
advocate Mr. Tanmay B. Karia for the respondent No. 2 - insurance
company, learned advocate Mr. Kirit Patel for the respondent No.3
and learned advocate Mr. G.C. Mazmudar for the respondent No.4 at
length.
4. The sole contention that has been raised by the learned
advocate Mr. Mohsin M. Hakim for the appellant - original claimant is
that the learned Tribunal has materially erred in assessing the
contributory negligent @ 50% of the injured - claimant and thereby
holding liable to pay the compensation to the respondent Nos. 1
and 2 only 50% of the total compensation. He submitted that the
learned Tribunal ought to have considered and appreciated the fact
that the owner of the tanker had paid extra premium covering risk
of the driver and accordingly, when extra premium is paid by the
owner of the vehicle, in that case, the insurance - company is liable
to indemnify the owner irrespective of the negligence of the driver
of the vehicle. In support of such submission, the learned advocate
for the appellant - applicant has heavily placed reliance on a
decision of the larger Bench of this Court in case of Valiben
Laxmanbhai Thakore (Koli) wd/o Late Laxmanbhai
Ramsingbhai Thakore (Koli) Vs. Kandla Dock Labour Board,
reported in 2021 (0) AIJEL-HC 243219. Learned advocate also
placed reliance upon a decision of the Hon'ble Apex Court in the
case of Syed Sadiq and Ors. vs. Divisional Manager, United
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
India Ins. Company, reported in (2014) 2scc 735. Thus, making
such submission, it is requested that this appeal may be allowed
and the compensation awarded by the learned Tribunal may be
enhanced suitably. It is also submitted by the learned advocate for
the appellant that under different heads also the learned Tribunal
has awarded trivial amount and accordingly, the same are required
to be enhanced suitably.
5. As against this, the learned advocate Mr. Tanmay Karia for the
respondent No. 2 - insurance company, while heavily opposing this
appeal and supporting the impugned judgment and award being just
and proper and therefore, no interference is required at the hands of
this Court. He has further submitted that after considering the
evidence on record, the learned Tribunal has come to the conclusion
that the driver of the tanker was equally negligent in driving the
vehicle and accordingly held liable him contributory negligent of
50%. He submitted that no error much less an error on the face of it
has been committed by the learned Tribunal in arriving at such a
conclusion and therefore, he has prayed for this appeal being bereft
of any merit deserves to be dismissed.
6. This Court has also heard learned advocates for the
respondent Nos 3 and 4 respectively, who are exonerated from the
liability to pay the compensation by the learned Tribunal, who have
supported the arguments advanced by the learned advocate for the
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
respondent No.2. Learned advocate for the respondent Nos. 3 and 4,
it is further submitted that as the fact of additional premium having
been paid qua the driver of the tanker is not proved by any
evidence, the learned Tribunal has rightly exonerated the
respondent Nos. 3 and 4.
7. Regard being had to the submissions canvassed and perusal
of the record reveals that after having considered the evidence on
record, the learned Tribunal has come to the conclusion that the
driver of the tanker was equally responsible for the unfortunate
accident and accordingly held him negligent to the extent of 50%
and awarded the compensation as such.
7.1 In this regard, if the decision in case of Valiben Laxmanbhai
Thakore (Koli) wd/o Late Laxmanbhai Ramsingbhai Thakore
(Koli) Vs. Kandla Dock Labour Board, (Supra), is referred to
the Court held as under:
"13. Thus, when the owner of a vehicle pay additional
premium and same is accepted by the Insurance
Company, liability of the Insurance Company gets
extended under the Motor Vehicles Act. Section 147 of
the Act clearly prescribes for statutory liability to cover
risk of paid Driver and Conductor under the Insurance
Policy, which is a matter of contract. On payment of
such additional premium by the owner, the liability of
the owner shifts upon the Insurance Company. Thus, the
risk of paid Driver and Conductor would be covered
under the Insurance Policy. Only when the additional
premium is not paid, liability would be as per the
Employees Compensation Act, 1923 and in such cases,
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
compensation would be computed as prescribed under
the Act which is limited to the extent provided under
provisions of the Act. However, when owner pays
additional premium to cover the legal liability of his paid
driver and conductor to the Insurance Company, as
such, the Insurance Company is enlarging the scope for
unlimited liability for payment of compensation, when
additional premium is accepted. The liability of the
Insurance Company gets extended and it has no
right to raise issue of self negligence or otherwise
of the such class of the driver of the Insured
vehicle. By accepting additional premium as per the
IMT 28, the Insurance Company expressed its
willingness to extend its liability under the Clause of
Legal Liability to the Paid driver and conductor as
envisaged under Section 147 of the Act. Thus, in our
opinion, Insurance Company has no legal right to avoid
its legal liability under the indemnity clause arising from
the contract of insurance towards the insured - owner of
such classes of vehicles.
14. The judgments relied upon by the learned counsel
for the Insurance Company would not be applicable in
the instant case and therefore, it is not necessary to be
dealt with. The other judgments which are cited by the
learned counsels for the respective parties, deal with
different facts & situations and are not relevant to the
question referred to this Bench and hence they are not
dealt with individually.
15. In our opinion, by accepting additional premium, the
Insurance Company indemnifies the owners for paid
Driver and / or Conductor and risk of Driver / Conductor
is covered under it. Upon death or injury caused to the
paid Driver and / or Conductor, the Insurance Company
would be liable to satisfy such claim irrespective of the
self negligence. Thus, the observations made by the
Division Bench in the case of Saberabibi Hisammiya
Umarvmiya & Anr (supra) lays down the correct law.
Reference is thus, answered accordingly. The respective
appeals be placed before the Division Bench taking up
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
such appeals for its final disposal in view of the
observations made by us."
7.2 Thus, as per the above pronouncement, the liability of the
Insurance - company gets extended, and it has no right to raise
issue of self negligence or otherwise of such class of the driver of
the insured vehicle.
7.3 The Court has also gone into the another decision as relied
upon by the learned advocate for the appellant - claimant, in the
case of Syed Sadiq and Ors. vs. Divisional Manager, United
India Ins. Company (Supra), wherein, it is observed that the
Tribunals and High Courts have erred in concluding that the
claimants also contributed to the accident without assigning any
logical reasons and accordingly contributory negligence of the
claimants in accident is not proved by the respondents by producing
evidence, the claimants were held to be entitled for enhancement of
quantum of compensation.
7.4 In the instant case, the owner of the tanker has paid
additional premium and accordingly liability of the Insurance -
company gets extended under the M.V. Act and therefore, as per
the aforesaid decision in case of Valiben Laxmanbhai Thakore
(Koli) wd/o Late Laxmanbhai Ramsingbhai Thakore (Koli) Vs.
Kandla Dock Labour Board, (Supra), the Insurance - company of
the tanker is liable to indemnify the insured i.e. owner of the tanker.
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
Thus, in the considered opinion of this Court, the learned Tribunal
has erred in exonerating the respondent Nos. 3 and 4 from the
liability to pay the compensation. Therefore, when the driver of the
tanker was equally responsible for the accident in question, and that
the owner of the tanker has paid additional premium covering the
risk of the driver, the respondent No. 4 is liable to indemnify, so far
as the contributory negligence of 50% of the driver of the tanker
and accordingly, the impugned judgment and award is required to
be modified.
7.5 The learned Tribunal as appeared to have erred in awarding
trivial amount under other different heads and accordingly in the
opinion of this Court, reasonable enhancement is required to be
made.
8. In the aforesaid backdrop, this appeal succeeds and is allowed
in part. The impugned judgment and award is modified to the
aforesaid extent and it is held that the appellant - claimant shall be
entitled for the following towards compensation:
Head Award of Tribunal Modified Amt. (Rs.)
(Rs.)
Pain, Shock & Suffering 10,000/- 50,000/-
Actual loss of income 9,000/- 9,000/-
Future loss of income 1,04,000/- 1,04,000/-
Special Diet, attendant 10,000/- 10,000/-
and Transportation
C/FA/2124/2019 JUDGMENT DATED: 23/12/2022
Medical Expenses 10,000/- 10,000/-
Loss of amenities & loss -- 50,000/-
of enjoyment of life
Total 1,43,000/- 2,33,000/-
(50% negligency)
71,500/-
Different Amt. 1,16,500/-
8.1 Thus, the appellant - original claimant is entitled to amount of
Rs.2,33,000/- towards compensation, out of the said amount, the
respondent Nos. 1 and 2 are liable to pay 50% i.e. Rs.1,16,500/-,
whereas, the respondent No.4 i.e. the Insurance - company of the
tanker is liable to indemnify the respondent No.3 i.e. owner of the
tanker has observed herein above, to the extent rest 50% i.e.
Rs.1,16,500/- shall be paid to appellant - claimant.
8.2 The difference amount shall be paid by the respective
Insurance - companies within a period of 08 (eight) weeks, for
which the claimant shall be entitled to interest @ 6% from the date
of claim petition till realization.
8.3 The rest of the impugned judgment and award is not
disturbed.
8.4 R&P, if received, be sent back forthwith.
(A. C. JOSHI,J)
prk
