Gujarat High Court
United India Insurance Co.Ltd vs Mahesh Mansukhbhai Chudasama on 21 July, 2022
Bench: Gita Gopi
C/FA/4022/2019 ORDER DATED: 21/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4022 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 4022 of 2019
With
R/FIRST APPEAL NO. 4567 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 4567 of 2019
With
R/FIRST APPEAL NO. 4568 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 4568 of 2019
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UNITED INDIA INSURANCE CO.LTD
Versus
MAHESH MANSUKHBHAI CHUDASAMA
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Appearance:
MR RATHIN P RAVAL (5013) for the Appellant(s) No. 1
MR NISHIT A BHALODI (9597) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 21/07/2022
ORAL ORDER
1. Learned advocate Mr. Rathin Raval submits that the
appellant-Insurance Company has challenged the
impugned judgment and awards passed in MACP
C/FA/4022/2019 ORDER DATED: 21/07/2022
No.724/2013, 725/2012 and 726/2013 mainly on the
ground that the observations made and the conclusion
arrived at by the Tribunal is contrary to the evidence on
record. Mr. Raval submits that in MACP No.724/2013, the
appellant-Insurance Company could not be saddled with
any liability since the Truck involved in the accident was
not holding a valid Permit on the date of accident. As per
the document produced vide Exhibit-40, the period of
permit was from 12.09.2007 to 11.09.2012; whereas, the
accident occurred on 08.06.2013. Mr. Raval states that
there is also a fundamental breach of the terms and
conditions of Insurance Policy as also of the provisions of
the Motor Vehicles Act and hence, the appellant-
Insurance Company is not liable to pay any amount as
compensation. In support of his arguments, reliance has
been placed on the judgment rendered in the case of
Amrit Paul Singh v. Tata AIG General Insurance Co. Ltd.,
2018 (7) SCC 558. Mr. Raval further submits that the
negligence on the part of the motor-cyclist was also
required to be considered since he was a minor on the
date of accident and was not authorized to drive the
C/FA/4022/2019 ORDER DATED: 21/07/2022
vehicle. Further, in all, three persons were travelling on
the motor-cycle at the relevant time and the other two
pillion riders were also minors and were not wearing
helmets. Thus, on this ground, Mr. Raval submits that
negligence ought to have been considered of the claimant
in equal proportion and accordingly, the owner of the
motor-cycle must be held liable to pay the amount of
compensation.
2. While countering the arguments, learned advocate
Mr. Nishit Bhalodi submits that the motor-cyclist was a
minor and hence, no negligence could be attributed to
him and the two pillion riders would have no
responsibility for the accident.
3. The facts of the case suggests that on 08.06.2013,
the claimant of MACP No.724/2013 was driving the
motor-cycle with two other persons as pillion riders.
When they reached the place on accident, the Truck
collided with the motor-cycle, as a result of which they
sustained injuries. In MACP No.724/2013, the Tribunal
C/FA/4022/2019 ORDER DATED: 21/07/2022
considered the driver of the Truck as sole negligent. The
undisputed fact is that the claimant minor was driving the
motor-cycle. As per the evidence, the motor cycle was of
the ownership of Mahesh Mansukhbhai Chudasama, who
is his father and has addressed him as 'kaka'. As per the
cause-title, the owner of the vehicle is Bipinbhai Ravi
Sharma; however, when the deposition was recorded, the
minor had turned major and as per his evidence, the
owner of the vehicle is his father, i.e. Mahesh
Mansukhbhai Chudasama. The evidence on record
suggests that the Truck had come from the rear side of
the motor-cycle; however, as per the deposition, he was
minor at that time and was not holding a valid driving
licence. Further, none of them were wearing any helmets.
Considering the fact that the motor-cyclist was not
competent to drive the vehicle at the relevant time as he
was a minor and two other persons were riding as pillion
on the said motor-cycle and that too without any helmets,
10% negligence is required to be attributed to the motor-
cyclist. Of course, the liability would be on the owner of
the motor-cycle, who had not taken any care before
C/FA/4022/2019 ORDER DATED: 21/07/2022
handing over the vehicle to the minor. Though Mr.
Bhalodi aruged that the amount is to be recovered from
the registered owner of the motor-cycle; however, as per
the evidence of the minor, his father is the owner of the
vehicle and thus, 10% liability is to be imposed upon the
father of the minor in MACP No.724/2013.
4. On the aspect of no valid permit for the offending
Truck, it appears that the Tribunal has failed to consider
Exhibit-40. Though the document is cited in the
judgment, the Tribunal has failed to consider the same.
The document has not been even appreciated. No
observation has been made and no finding has been
recorded on Exhibit-40. The Tribunal while discussing the
fact of liability has not even made mention about the
same. As per Exhibit-40, the validity of the Permit is from
12.09.2007 to 11.09.2012 while the accident occurred on
08.06.2013. Considering the fact that the offending Truck
had no Permit to ply on the road at the relevant time, the
appellant-Insurance Company could not be made liable to
pay the amount of compensation. Thus, the 90% liability
C/FA/4022/2019 ORDER DATED: 21/07/2022
that has been imposed upon the Truck is required to be
recovered from the owner of the Truck.
5. In the result, the appeals are partly allowed; and
(I) In First Appeal No.4022/2019 :
The impugned judgment and award dated
20.03.2019 passed by MACT (Special), Rajkot in
MACP No.724/2013 is modified only to the extent
that the drivers of the motor-cycle and the Truck are
held negligent for the accident in the ratio of 10 : 90.
Insofar as the amount of compensation is concerned,
the same is not interfered with. However, it is
clarified that 10% of the amount of compensation
shall be recovered by the claimant from his father as
the owner of the motor-cycle; and the Insurance
Company shall make good the remaining 90% of the
amount of compensation by deposited the same in
the Tribunal concerned and thereafter, to recover
the same from the owner of the Truck. The
impugned judgment and award stands modified to
C/FA/4022/2019 ORDER DATED: 21/07/2022
the above extent.
(II) In First Appeal Nos.4567/2019 & 4568/2019
:
The impugned common judgment and award
dated 19.01.2019 passed by MACT (Aux.), Rajkot in
MACP Nos.725/2013 & 726/2013 is modified only to
the extent that the drivers of the motor-cycle and the
Truck are held negligent for the accident in the ratio
of 10 : 90. Insofar as the compensation of
compensation is concerned, the same is not
interfered with. However, it is clarified that the
entire amount of compensation shall be made good
by the appellant-Insurance Company at the first
place and thereafter, the appellant-Insurance
Company shall be at liberty to recover 90% of
compensation from the owner of the Truck; and the
remaining 10% compensation from the father of the
claimant of MACP No.724/2013. The impugned
judgment and award stands modified to the above
extent.
C/FA/4022/2019 ORDER DATED: 21/07/2022
(III) Record and proceeding, if lying here, be sent to
the Tribunal concerned forthwith.
(GITA GOPI, J)
PRAVIN KARUNAN
