Gujarat High Court
United India Insurance Company ... vs Lalji Bhikhabhai Pipaliya on 12 July, 2022
Bench: Gita Gopi
C/FA/1155/2020 JUDGMENT DATED: 12/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1155 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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UNITED INDIA INSURANCE COMPANY LTD
Versus
LALJI BHIKHABHAI PIPALIYA
================================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1,2
NOTICE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/07/2022
ORAL JUDGMENT
1. By way of this Appeal, the appellant - Insurance
Company has challenged the judgment and award dated
30.09.2019 passed by the learned Motor Accident Claims
Tribunal (Auxi.) at Gondal, in M.A.C.P. No.96 of 2010.
2. The brief facts of the case are that the claimant was on
his duty as a driver and was driving the Matador No.GJ-
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3U-4763 and going from Gondal to Kutch and when he
reached on Mitana Road, Haripar, at that time, the
driver of the Car bearing Registration No.MH-06AF-1847
came driving his vehicle with full speed, in rash and
negligent manner and dashed with the Matador. The
claimant sustained serious fracture injuries and grievous
body injuries and also sustained permanent disablement.
The claimant was taken to Civil Hospital, Rajkot and
thereafter was referred to Chaitanya Neuro Surgical
Hospital, Rajkot for further treatment where he remained
as an indoor patient and took medical treatment.
3. Learned Advocate for the appellant - Insurance Company
Mr. Maulik J. Shelat submitted that the judgment and
award passed has been challenged by the Insurance
Company on the ground that the injured claimant was
the driver of the Matador was found to be solely
negligent for causing the accident. So it was submitted
that the injured driver causing the accident cannot claim
compensation against the insured employer by filing a
Claim Petition under Section 166 of the Motor Vehicles
Act, 1988 (hereinafter referred to in short as 'the M.V.
Act') which in turn is against the Appellant - Insurance
Company. It is further submitted that in a claim
petition under the guise of fault liability for the own
fault / negligence, the person is not entitled for the
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compensation from the owner / insured / employer and
thus, in turn to be recovered from the Insurance
Company. It is also submitted that the learned Tribunal
has erred in not appreciating so and held the Insurance
Company liable to pay the compensation. It is further
submitted that the Tribunal ought to have first held the
insured liable to pay compensation under the M.V. Act.
It is also submitted that the Tribunal has erred in
awarding Rs.2,00,000/- to the claimant without
quantifying the loss caused to the claimant. It is also
submitted that Rs.2,00,000/- is under the Personal
Accident Policy given upon the death of the owner and
not to be paid to the driver. It is therefore, submitted
that the impugned judgment and award be quashed and
set aside.
4. Heard learned Advocate for the appellant and perused the
records of the case. Though served, no one appears for
the respondents No.1 and 2.
5. The learned Tribunal has perused the copy of the
Insurance Policy at Exhibit 31. As per the Policy,
Rs.100/- has been paid as an extra premium in
connection with the Matador bearing Registration No.GJ-
3U-4763 for the compulsory personal accident of the
owner-driver. Accordingly, the learned Tribunal has
come to the conclusion that the maximum amount to be
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paid under the treatment and dues of the owner and the
driver is Rs.2,00,000/- and accordingly, in consonance
with the terms and conditions of the Insurance Policy at
Exhibit 31, the Insurance Company is made liable to pay
the amount for the sole negligence of the driver of the
vehicle.
6. In the case of Valiben Laxmanbhai Thakore (Koli) Wd/o.
Late Laxmanbhai Ramsinghbhai Thakore (Koli) and Others
v. Kandla Dock Labour Board and Another reported in
2021 I GLR 440, wherein the Division Bench of this
Court while dealing with the issues urged, had framed
the following question to be examined and answered by
the Bench that :-
"Whether the Division Bench of this Court in the case
of Saberabibi Hisammiya Umarmiya (supra) laid down
correct law by holding that in view of insured paying
additional premium for the liability of the paid driver,
the Insurance Company is liable to pay compensation
under the Motor Vehicles Act computed upon the death
or injury caused to the driver out of an accident which
arises solely on account of driver's own negligence?"
7. Thereafter, in Paragraph 13 of the decision in the case of
Valiben (supra), the Division Bench 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
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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,
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."
8. In view of the answer of the Division Bench to the issue
framed, there remains no merits in this case. The facts of
this case gets covered by the answer of the Division
Bench in relation to the reference so made. When the
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
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compensation, it has no right to raise issue of self
negligence or otherwise of the such class of the driver of
the insured vehicle. Therefore, the present First Appeal
does not stand towards the proposition of law as laid
down in the case of Valiben (supra) and therefore, the
Appeal stands dismissed.
Sd/-
(GITA GOPI, J)
CAROLINE
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