Iffco - Tokio Gen. Ins. Co. Ltd vs Bhemjibhai Narsangbhai ...
2022 Latest Caselaw 1591 Guj

     C/FA/1035/2012                               JUDGMENT DATED: 11/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1035 of 2012

                      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 ?

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                   IFFCO - TOKIO GEN. INS. CO. LTD
                               Versus
            BHEMJIBHAI NARSANGBHAI CHAUDHARI & 4 other(s)
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Appearance:
MR CHIRAYU A MEHTA(3256) for the Appellant(s) No. 1
MR J G PANCHAL(2672) for the Defendant(s) No. 3
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2,5
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 11/02/2022

                             ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by appellant-Iffco Tokiyo General Insurance Co. Ltd. (Original Opponent No.4), being aggrieved and dissatisfied with the judgment and award dated 04.10.2011 passed by the Motor Accident Claims Tribunal (Main.), Banaskantha at Palanpur in

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Review Application No.16 of 2010 as well as judgment and award dated 26.04.2010 passed by Motor Accident Claims Tribunal (Main.), Banaskantha at Palanpur in Motor Accident Claim Petition No.38 of 2008, by which the Tribunal has awarded Rs.2,84,556/- with 6% per annum interest, to the extent of Rs.1,42,278/-, by holding-Opponent Nos.1 to 4 liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On the date of the accident, the deceased-Maheshbhai by driving the motorcycle bearing registration No.GJW-8-J-6904 was going from Gandhinagar to Randheja. At that point of time, one Tanker bearing registration No.GJ-18-T-9654 came with full speed and in rash and negligent manner and dashed with the motorcycle. As a result of which, deceased-Maheshbhai sustained grievous injuries and took the treatment in Ahmedabad Civil Hospital. Ultimately, he succumbed to the injuries. Thereafter, the claimant has filed a claim petition to get the compensation Rs.5,04,500/- under Section 163A of the Motor Vehicles Act, 1988.

2.2 The Tribunal has issued summons to the opponents. Opponent No.2-New India Assurance Co. Ltd. has filed its reply at Exh.32 contending inter alia that the claim or any part thereof is not admitted. It was further contended by denying that the said offending vehicle (Tanker) was involved in this accident and even other contention regarding age of the deceased is also disputed by the said Insurance Company. Opponent No.1 has filed his written statement at Exh.12 and Opponent No.3-owner of the said motorcycle has also

C/FA/1035/2012 JUDGMENT DATED: 11/02/2022

filed his reply at Exh.25 inter alia denying the averments made in the claim petition and has further denied the involvement of the said motor vehicle in the accident and further contended that if the applicant is awarded compensation then in that case, the opponent No.4-Iffco Tokiyo General Insurance Co. Ltd. is laiable to pay the amount of compensation. Opponent No.4, the present appeallant- Iffco Tokiyo General Insurance Co. Ltd. has filed its written statement at Exh.27 contending inter alia that the claim petition is not admitted and denied that the owner of the said motor vehicle was involved in the accident and also disputed the age and income of the deceased and also disputed date, time, place and manner where the said accident occurred and therefore, all of them have prayed to dismiss the claim petition.

2.3 The Tribunal has considered the provisions of Section 163A of Motor Vehicles Act, 1988 and has recorded the evidence and thereafter, has proceeded to decide the claim petition by awarding compensation to the tune of Rs.2,84,556/- with 6% p.a. interest to the applicants by holding Opponent Nos. 1 to 4 liable, jointly and/or severally.

2.4 Being aggrieved and dissatisfied with the above finding on the aspect of quantum as well as liability of the said Insurance Company, the present appellant-Iffco Tokiyo General Insurance Co. Ltd. (Original Opponent No.4) has filed Review Application No.16 of 2010. On 04.10.2011, the Tribunal has rejected the said review application. Hence, the present appeal is preferred by the appellant-

C/FA/1035/2012 JUDGMENT DATED: 11/02/2022

Iffco Tokiyo General Insurance Co. Ltd. under Section 173 of the Motor Vehicles Act, 1988.

3. I have heard learned advocate Mr. Chirayu A. Mehta for the appeallant-Iffco Tokiyo General Insurance Co. Ltd. He has contended that the Tribunal has erred in not appreciating the fact that when particular plea is raised and it is neither referred nor dealt with by the Tribunal, then review application was the only proper remedy. He has further contended that in view of the judgment of Hon'ble Apex Court rendered in the case of Ningamma and Another Vs. United India Ins. Co. Ltd. reported in 2009 ACJ 2020, under the provisions of Section 163A of the Motor Vehicles Act, 1988, no claim by the driver would be tenable. He has further contended that the Tribunal has erred by treating the driver of the motorcycle as third party in the facts and circumstances of the present case. He has further contended that under the provisions of Section 147 of the Motor Vehicles Act, 1988, which specifically requires coverage qua third party and also statutory coverage qua certain class of employees engaged in driving, conductors, cleaners or labourers and then, only the risk is considered as covered by the insurance policy. He has further contended that the Tribunal has erred in quantifying the award of Rs.3,10,000/- by holding appellant liable for the amount of compensation Rs.2,84,556/- with 6% p.a. interest. He has further contended that the Tribunal ought to have fastened the liability as the accident was caused due to sole negligence of the driver of the said Tanker and therefore, he has submitted that the Tribunal has committed gross error. He has

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submitted that in view of various judgments, more particularly the recent judgment of Hon'ble Apex Court reported in (2020) 2 SCC 550, rendered in the case of Ram Khiladi vs. United India Insurance Co., the present appeal deserves to be allowed.

4. Learned advocate Mr. Panchal, for Respondent No.3 has submitted that additional premium of Rs.50/- is paid to the insurance company and therefore insurance company is liable to pay to the extent of its liability. In support of his submissions he has relied upon the judgment reported in AIR 2017 SC 1734 in the case of Mata Ram v. National Insurance Co. Ltd., more particularly para 9 and 10, which are reproduced as under:

"9. After carefully perusing the records of the case and having regard to the fact that the insurance policy clearly shows that the Insurance Company has charged a premium from the insured for three persons excluding the driver, we are of the opinion that the Insurance Company cannot be absolved from its liability on the death of a person.

10. Therefore, in our considered view, the High Court has failed to take note of the said facts in question and modified the order passed by the Tribunal. Furthermore, the judgment of this Court which was cited before us is applicable to the matter in question."

In view of the above, the insurance company cannot absolve from its liability, more particularly, when the reply is filed by the Insurance Company. He has drawn the attention from the record that the Tribunal has rightly rejected review application as no case is made out by the appellant-Insurance Company.

C/FA/1035/2012 JUDGMENT DATED: 11/02/2022

5. Learned advocate for the Respondent No.4-New India Assurance Co. Ltd., who is original opponent No.2 Mr. Palak H. Thakkar has contended that appellant cannot escape from its liability as his liability occurred from the policy. He has also supported the submissions made by learned advocate for the claimants Mr. J.G.. Panchal. He has further contended that additional premium of Rs.50/- is paid towards IMT-16 to the appellant-Iffco Tokiyo General Insurance Co. Ltd. and therefore, the appellant-Iffco Tokiyo General Insurance Co. Ltd. is at least liable to the extent of Rs.1,00,000/-, as per the tariff, to be paid as pay the amount of compensation. He has fairly submitted that rest of the amount is required to be paid by rest of the opponents including insurance company-New India Assurance Co. Ltd.

6. I have heard learned counsel for the respective parties and have perused the judgment and award passed by the Tribunal as well as the order passed in review application and I have also gone through the FIR, Panchnama and other documentary evidence and oral deposition at Exh.23 of Shri Narsinhbhai. I have also perused the written statements filed by the respective parties. The short issue involved in the present appeal is as to whether under Section 163A of the Motor Vehicles Act, 1988, the insurance company can negate its liability to pay the amount of compensation. If we look at the insurance policy issued by present appellant-Iffco Tokiyo General Insurance Co. Ltd., I found that Iffco Tokiyo General Insurance Co. Ltd. has received Rs.50/- towards additional premium and if the amount is received by insurance company, in view of the judgment

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of Hon'ble Apex Court in the case of Mata Ram (supra), and also in view of the recent judgment of Hon'ble Apex Court reported in (2020) 7 SCC in the case of Chandrakanta Tiwari V/s New India Assurance Company Limited and another, without any justifiable reason, the liability of insurance company cannot be absolved. But I have found valid reason in submissions made by learned advocate Mr. Chirayu A. Mehta for the appellant that looking to Rs.50/- of premium received by insurance company as per tariff, the insurance company is liable to pay the amount to the extent of Rs.1,00,000/-. Therefore, this appeal is required to be allowed, which would meet the ends of justice.

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

7.1 The Appeal is partly allowed to the extent of Rs.1,00,000/- by modifying the impugned award.

7.2 The appeallant-Iffco Tokiyo General Insurance Co. Ltd. is liable to pay the amount to the extent of Rs.1,00,000/-, with 6% p.a. interest and rest of the award of Rs.1,84,556/- is recoverable from other opponents.

7.3 The appellant-Iffco Tokiyo General Insurance Co. Ltd. is accordingly entitled to recover Rs.42,278/- with 6% p.a. interest from Respondent Nos.3 to 5.

7.4 On depositing of such amount, the concerned Tribunal shall disburse the entire amount to claimant, as noted above, lying in FDR and/or lying with the Tribunal, by following due procedure, by

C/FA/1035/2012 JUDGMENT DATED: 11/02/2022

way of account payee cheque, after proper verification.

7.5 Any other amount pursuant to the impugned award of the Tribunal, if any, lying in FDR and/or with the Tribunal, shall also be disbursed to the claimants in addition of abovementioned amount, within a period of six weeks from copy of receipt of this order.

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

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA