Gujarat High Court

New India Assurance Company ... vs Vijaybhai Koyabhai Ninama on 16 February, 2022

Bench: Hemant M. Prachchhak

     C/FA/3949/2012                               JUDGMENT DATED: 16/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/FIRST APPEAL NO. 3949 of 2012
                               With
     CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2020
                                 In
                  R/FIRST APPEAL NO. 3949 of 2012

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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

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 ASSURANCE COMPANY LIMITED
                                  Versus
                   VIJAYBHAI KOYABHAI NINAMA & 2 other(s)
================================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
GOVERNMENT PLEADER for the Defendant(s) No. 1,2
MR MAHARSHI PATEL FOR HL PATEL ADVOCATES(2034) for the
Defendant(s) No. 3.1,3.2,3.3,3.4,3.5,3.6,3.7,3.8
RULE SERVED for the Defendant(s) No. 1,2,3.1,3.2,3.3,3.4,3.5,3.6,3.7,3.8
================================================================

    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 16/02/2022


                                  Page 1 of 9

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       C/FA/3949/2012                           JUDGMENT DATED: 16/02/2022




                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgment and

order dated 20.07.2012 passed by the Motor Accident

Claims Tribunal (Aux.), Panchmahal at Godhra (hereinafter

referred to as "the Tribunal") in M.A.C.P. No.1492 of 2007,

the appellant - Insurance Company has preferred this

appeal under Section 173 of the Motor Vehicles Act, 1988

(hereinafter referred to as "the Act").

2. Following facts emerge from the record of the appeal.

2.1 The deceased Jayeshkumar Amarsinh Parmar, who was

working as ASI Radio Operator Wireless in the office of the

Superintendent of Police, Navsari, was travelling in TATA

407 registered as GJ-15-G-0342 (P-56) to attend the

programme of the Hon'ble Chief Minister at Limkheda

from Navsari at about 6.00 a.m. The fact reveals that at

about 6.45 hours, when the said vehicle reached at

Village: Bedhiya, the driver of the said vehicle lost control

over the steering because of which the vehicle got turtle.

The deceased Jayeshkumar, who was travelling in the said

C/FA/3949/2012 JUDGMENT DATED: 16/02/2022

vehicle, sustained fatal injury and succumbed to the

same. The FIR being CR No.I - 162 of 2007 was lodged

before the Kalol Police Station and the claim petition was

filed under Section 166 of the Act claiming compensation

of Rs.32,57,500/-. It was the case of the claimants that the

deceased was 48 years old at the time of accident and

working as operator in the office of the Superintendent of

Police, Navsari and earning salary of Rs.20,000/- per

month. It was also the case of the claimants that the

deceased would have retired as Police Inspector by

getting promotion at different stages of his service. The

wife of the deceased Jayeshkumar was examined at

Exhibit 31 and one Omprakash Maneklal Ayatoda was also

examined at Exhibit 35.

2.2 The original claimants also relied upon the documentary

evidence, such as FIR at Exhibit 21, panchnama of the

scene of occurrence at Exhibit 22, the policy of the vehicle

involved in the accident at Exhibit 23, copy of the driving

licence of the driver at Exhibit 24, R.C. Book at Exhibit 25

and Postmortem Note at Exhibit 26.

C/FA/3949/2012 JUDGMENT DATED: 16/02/2022

3. The Tribunal, after appreciating the evidence on record,

came to the conclusion that the driver of the vehicle was

negligent. The Tribunal has also considered the

documentary evidence i.e. salary certificate at Exhibit 36,

service book at Exhibit 37 and Form - 16 at Exhibit 29 and

determined the income of the deceased after deduction of

income tax and professional tax at Rs.16074/- per month

and applying multiplier of 30 also gave benefit of

prospective income and also considered the compensation

under conventional, such as, loss of love and affection and

loss of estate and granted Rs.26,07,821/- as

compensation under the head of loss of dependency,

Rs.10,000/- as loss of consortium, Rs.5,000/- as loss of

love and affection, Rs.3,000/- as funeral expenses and

Rs.5,000/- as loss of estate. Thus, the Tribunal partly

allowing the claim petition awarded a sum of

Rs.26,30,821/- with 7.5% interest from the date of filing of

the claim petition till its realization and being aggrieved

and dissatisfied by the same, the Insurance Company has

preferred this appeal.

4. Heard Mr.Vibhuti Nanavati, learned counsel appearing for

C/FA/3949/2012 JUDGMENT DATED: 16/02/2022

the appellant - Insurance Company and Mr.Maharshi Patel,

learned counsel for HL Patel Advocates for the

respondents - claimants. Though served, nobody appears

on behalf of rest of the respondents. We have perused the

original record and proceedings of the case.

5. Mr.Nanavati, learned counsel appearing for the appellant

drew attention of this Court to the copy of the insurance

policy which is sought to be brought on record of this

appeal by way of additional evidence and contended that

the policy of the vehicle was only liability policy. He

contended that the deceased was occupant of the vehicle

and the policy being "commercial limited liability policy"

with risk is not covered and on the sole ground, the appeal

is pressed.

6. As against this, Mr.Patel, learned counsel for the

respondents - original claimants has supported the

impugned judgment and award rendered by the Tribunal.

He has contended that the Tribunal has awarded just and

adequate compensation and even on the aspect of the

liability, he has also contended that as it was commercial

C/FA/3949/2012 JUDGMENT DATED: 16/02/2022

vehicle even in the case of liability only policy i.e. act of

policy the risk of the occupant would be covered. Mr.Patel,

learned counsel has contended that the appeal deserves

to be dismissed.

7. No other or further submissions, grounds or contentions

have been raised by learned counsel appearing for the

respective parties.

8. Section 2 of Sub-Section (35) of the Act which also reads

thus:-

"Section 2(35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage;"

9. In order to examine the question which arises in this

appeal, it would be appropriate to refer to Section 147 of

the Act, as existed on the date of accident, which reads

thus:-

"147 Requirements of policies and limits of liability.

-- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--

(a) is issued by a person who is an authorised insurer;

and

(b) insures the person or classes of persons specified in

C/FA/3949/2012 JUDGMENT DATED: 16/02/2022

the policy to the extent specified in sub-section (2) --

(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required--

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--

       (a)         engaged in driving the vehicle, or

       (b)         if it is a public service vehicle engaged as conductor

of the vehicle or in examining tickets on the vehicle, or

(ii) to cover any contractual liability.

Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:--

(a) save as provided in clause (b), the amount of liability incurred;

C/FA/3949/2012 JUDGMENT DATED: 16/02/2022

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.

10. The vehicle involved in the accident was TATA made LP

407 FF control bus and it bears registration No.GJ-15-G-

0342. The policy which is sought to be brought on record

clearly suggests that the policy is "commercial vehicle

liability only policy". Considering the provision of Section

147(b)(ii) of the Act, even though it is a policy with

C/FA/3949/2012 JUDGMENT DATED: 16/02/2022

commercial limited liability i.e. public vehicle, the risk of

the occupant is well covered and, therefore, on the ground

that it was act only policy, the appellant - Insurance

Company cannot contend that the risk is not covered.

Accordingly, the sole contention raised in this appeal