New India Assurance Company ... vs Chanabhai Pithabhai Through ...
2022 Latest Caselaw 573 Guj

     C/FA/2170/2009                                   JUDGMENT DATED: 18/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2170 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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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               NEW INDIA ASSURANCE COMPANY LIMITED
                              Versus
            CHANABHAI PITHABHAI THROUGH HEIRS & 1 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR HASIT H JOSHI(2480) for the Defendant(s) No. 1.1,1.2
RULE SERVED(64) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 18/01/2022

                             ORAL JUDGMENT

1. The appellant - Insurance Company has filed the present

appeal against the impugned judgment and award passed by the

learned Motor Accident Claims Tribunal (Aux), Jamnagar

C/FA/2170/2009 JUDGMENT DATED: 18/01/2022

(hereinafter referred to as "the Tribunal") in Motor Accident

Claims Petition No. 289 of 2005, by which, the learned Tribunal

has held and directed original opponent no.2 - Insurance

Company to pay compensation to the original claimants.

2. Brief facts of the present case is that on 22.11.2003 at

about 13.30 hours deceased Chanabhai Pithabhai was going to

his house, at that time, driver - Jentibhai Virjibhai Rathod of

original opponent no.1 has driven the Tractor bearing

Registration No.GJ-10-E-9636 along with Trolley bearing

Registration No.GJ-10-U-1629 in rash and negligent manner with

excessive speed and lost control over the vehicle, the same

came to be overturned and due to which the trolley of the tractor

fallen on the deceased, as a result of which he sustained serious

injury and succumbed to the injury. Hence, the original claimants

have filed said claim petition before the Tribunal. The Tribunal,

after evaluating the pleadings and evidence tendered by the

parties, partly allowed the claim petition and awarded a sum of

Rs.2,71,000/- and directed the opponents to pay compensation

amount.

3. Being aggrieved and dissatisfied with the aforesaid

C/FA/2170/2009 JUDGMENT DATED: 18/01/2022

impugned judgment and award, the present appeal is filed by

the appellant - Insurance Company.

4. Heard Mr.Palak Thakkar, learned counsel appearing for the

appellant - Insurance Company and Mr.Hashit Joshi, learned

counsel appearing for the respondents - original claimants

through video conference.

5. Mr.Palak Thakkar, learned counsel appearing for the

appellant - Insurance Company has submitted that the Tribunal

has materially erred in facts and law in holding that the

appellant is jointly and severally liable for payment of

compensation to the claimants. He has submitted that the

Tribunal has committed an error in holding that though the

deceased was travelling as gratuitous passenger in

tractor/trolley, the claimants were entitled to compensation

under Section 163A of the Motor Vehicles Act. He has submitted

that the terms and conditions of the tractor/trolley cannot permit

the carriage of unauthorized passengers. He has submitted that

there is a breach of terms and conditions of the insurance policy

by permitting the deceased to be carried in tractor and,

therefore, the appellant is not liable to indemnify the insured or

to satisfy the award under Section 149 of the Motor Vehicles Act.

C/FA/2170/2009 JUDGMENT DATED: 18/01/2022

The main thrust of the arguments of the learned advocate for the

appellant is that the deceased was sitting as gratituous

passenger in tractor attached to the trolley and neither he was

labourer nor he was a third party and he was sitting as

passenger in the tractor and, therefore, the impugned judgment

and award passed by the Tribunal holding the Insurance

Company liable to pay is erroneous. He has referred to and relied

upon the contents of the FIR and the oral evidence of the

Nathiben Chanabhai. He has referred to and relied upon the oral

evidence of Nathben Chanabhai and submitted that Nathiben

Chanabhai has specifically admitted in her cross-examination

that her husband was sitting in trolley as he wanted to reach at

village: Sidsar for his work and, therefore, he requested the

driver of the offending vehicle to sit and at his request, he was

allowed to sit in trolley. He has submitted that the appeal may be

allowed. He has relied upon the decision in the case of Oriental

Insurance Company Limited Vs. Maniben Wd/o.

Chimanbhai Chaturbhai, 2013 (2) GCD 1267, Oriental

Insurance Company Limited Vs. Premlata Shukla and

others, (2007) 13 SCC 476 and United India Insurance

Company Limited Vs. Mohammed Haji Abdulla Decd.

C/FA/2170/2009 JUDGMENT DATED: 18/01/2022

Through the Lrs. dated 19.02.2016 rendered in First Appeal

No.3936 of 2009.

6. As against that, Mr.Hashit Joshi, learned counsel appearing

for the respondents - original claimants has supported the

impugned judgment and award passed by the Tribunal and

submitted that the Tribunal has not committed any error by

awarding compensation and holding the appellant liable for

payment of compensation to the claimants. He has submitted

that considering the principles laid down by the Apex Court in

the case of Shivraj Vs. Rajendra and another, (2018) 10

SCC 432, the order of pay and recover can be passed as he is a

third party to the accident and since liability towards third party

is covered under the policy. He has submitted that the present

appeal may be dismissed and no interference is called for. He

has relied upon the decision in the case of Manager, National

Insurance Company Limited Vs. Saju P. Paul and another,

(2013) 2 SCC 41.

7. In the case of Maniben Wd/o. Chimanbhai Chaturbhai

(supra), this Court has held and observed in paras-6 and 7 as

under:-

C/FA/2170/2009 JUDGMENT DATED: 18/01/2022

6. Heard learned counsel for the respective parties. In the FIR lodged by the driver of the offending vehicle, it has been categorically averred that the deceased was travelling in the Tractor at the relevant point of time. It is true that in the claim petition, it was averred that the Tractor dashed the deceased while the deceased was walking on the road-side. At this stage, it would be pertinent to rely upon the decision rendered in the case of Premlata Shukla (supra) wherein, it has been held that if objection is not raised and the document is allowed to be marked, one cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and thus, should not be relied upon. In this case, the FIR has been exhibited. Therefore, if the owner had any objection regarding its contents, then objection should have been raised at that time. Once the document is exhibited in evidence, it is not open to either party to raise a contention that its contents had not been proved at a later stage. In view of the same, it has to be accepted that the deceased was travelling in the Tractor at the relevant point of time.

7. Once it is concluded that the deceased was travelling in a Tractor, then the Insurance Company could not be made liable to satisfy the claim in view of Regulation 28 since the vehicle in question was a 'goods vehicle'. Hence, the Tribunal ought to have exonerated the Insurance Company from the liability of satisfying the claim.

8. In the case of Saju P. Paul (supra), the Hon'ble Apex

Court has held and observed in para-26 as under:-

26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, and Challa Upendra Rao should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 and the said

C/FA/2170/2009 JUDGMENT DATED: 18/01/2022

amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao."

9. This Court has considered the submissions made on behalf

of the parties and perused the documentary evidence led by the

parties. This Court also perused the policy at Exhibit 15 and the

written submissions filed on behalf of the Insurance Company

more particularly paragraphs no.11 and 12 wherein there was

specific dispute raised about the liability and the same was not

considered by the Tribunal in its true and prospective spirit.

Considering the facts and circumstances of the case and the

decisions cited at the Bar, this Court is of the considered opinion

that the appeal is required to be allowed and the impugned

award is required to be modified to the extent of liability of the

Insurance Company can be fastened and is exonerated from

liability to pay the compensation. However, it is open for the

original claimants to recover the amount from the driver and

owner of the offending vehicle. The amount which came to be

withdrawn by the original claimants can be recovered.

C/FA/2170/2009 JUDGMENT DATED: 18/01/2022

10. Under the circumstance, the impugned judgment and order

passed by the learned Tribunal holding the appellant - insurer

liable to pay the compensation or indemnify the award cannot be

sustained and same deserves to be quashed and set aside.

11. In view of the above and for the reasons stated above,

appeal succeeds. The impugned judgment and award in so far as

holding the appellant - insurer - original opponent no.2 liable to

pay the compensation to the original claimants for the death of

deceased is hereby quashed and set aside. On allowing the

present appeal and quashing and setting aside the impugned

judgment and award passed by the learned Tribunal so far as

appellant Insurance Company is concerned, the appellant

Insurance Company shall be entitled to get back the amount

which the appellant has deposited pursuant to the impugned

judgment and award passed by the learned Tribunal. However, it

is required to be noted that pursuant to the interim order passed

by this Court dated 13.05.2009 passed in Civil Application

No.5656 of 2009 the original claimants were permitted to

withdraw 30% of the amount and rest of the amount was

directed to be invested in the name of original claimants in any

C/FA/2170/2009 JUDGMENT DATED: 18/01/2022

Nationalized Bank but FDRs shall remain with Nazir of Claims

Tribunal, Jamnagar, which require periodical renewal till First

Appeal is decided by this Court and the original claimants were

allowed to receive the monthly interest from the said FDR. By

now more than 11 years have passed and original claimants

must have spent entire 30% which was permitted to withdraw

and even periodical interest for their maintenance, it is observed

that amount already withdrawn by the original claimants may

not be recovered from them by the Insurance Company,

however, interest shall be entitled to get back the said amount

from the owners of the vehicle involved in the accident.

However, the appellant - Insurance Company shall be entitled to

get back remaining amount from the Fixed Deposit Receipts

lying with the Nazir of the Tribunal which were directed to be

invested in the name of original claimants and which were

directed to be kept in the Nazir, Jamnagar without filing

Execution Petition and the Tribunal is directed to pay the said

amount to the appellant Insurance Company on production of

certified or simple copy of the present judgment and order.

Registry is directed to transmit back the amount to the Tribunal

which is deposited before this Court by the appellant - Insurance

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Company.

12. Record and proceedings be sent back to the concerned

Tribunal forthwith. Pending civil applications, if any, shall stand

disposed of accordingly.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL