Gujarat High Court

Aminaben Natthubhai Chopda vs Ashwinkumar Utaumal Rajai on 27 July, 2022

Bench: Gita Gopi

     C/FA/664/2018                               JUDGMENT DATED: 27/07/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 664 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            No

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                 AMINABEN NATTHUBHAI CHOPDA & 4 other(s)
                                Versus
                  ASHWINKUMAR UTAUMAL RAJAI & 1 other(s)
==========================================================
Appearance:
for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 2,3,4,5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 27/07/2022

                            ORAL JUDGMENT

1. Mr. Mohsin Hakim, learned advocate for the appellant

submitted that the challenge has been given to the judgment

and award in case of Motor Accident Claim Petition (MACP) No.

C/FA/664/2018 JUDGMENT DATED: 27/07/2022

260/1996 passed by the Motor Accident Claims Tribunal (Auxi),

Ahmedabad (Rural) on 14.9.2017 whereby the learned Tribunal

had dismissed the petition under Section 163A of the Motor

Vehicles Act, 1988 (in brief 'M.V. Act').

2. Mr. Hakim submitted that as per the incident on 2.10.1995,

the deceased was driving a Truck bearing Registration No. GRX-

4079 and was returning from Nasik towards Ahmedabad after

loading tomatoes and when the deceased reached near Saputara

Road, Gujarat, he lost control over the vehicle and fell into gorge.

As a result thereof, the driver and cleaner both died on the spot

on the place of accident. Mr. Hakim submitted that there is an

admitted aspect that the deceased was a driver of the truck and

the learned tribunal erred in not considering the Insurance Policy,

which covered the risk of the driver of the vehicle. He further

submitted that now the Insurance Company cannot raise the

issue of self-negligence or otherwise of such class of driver of a

insured vehicle when the Insurance Company has accepted an

additional premium and thereby the Insurance Company is

enlarging the scope of unlimited liability for the payment of

compensation when additional payment is accepted. Mr. Hakim

submitted that the said issue is already covered by judgment of

C/FA/664/2018 JUDGMENT DATED: 27/07/2022

the Full Bench of this Court, which was under reference of

Division Bench and, therefore, now the claimant would be

entitled for compensation of money in accordance with the

structured schedule, which is attached to Section 163(A) of the

M.V. Act.

3. Mr. Majmudar, learned advocate for the Insurance Company

submitted that the claimants have not proved the income of the

deceased. Mere statement by the owner would not absolve him

of producing the evidence. At the same time, Mr. Majmudar

submitted that there cannot be any denial to the premium

acceptance in view of the Policy at Exh-33.

4. From the Policy at Exh-33, in the liability Section, an amount

of Rs.90/- is extracted as additional premium, collected for one

driver, one cleaner and four coolies.

5. In the case of Valiben Laxmanbhai Thakore (Koli) Wd/o.

Late Laxmanbhai Ramsingbhai Thakore (Koli) versus Kandla Dock

Labour Board, reported in 2021 (4) GLH 77, wherein Paras -13 and

15 read 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

C/FA/664/2018 JUDGMENT DATED: 27/07/2022

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 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.

15. In our opinion, by accepting additional premium, the Insurance Company indemnifies the owners for paid Driver and / or Conductor and risk of Driver / Conductor is covered under it. Upon death or injury caused to the paid Driver and / or Conductor, the Insurance Company would be liable to satisfy such claim irrespective of the self negligence. Thus, the observations made by the Division Bench in the case of Saberabibi Hisammiya Umarvmiya & Anr (supra) lays down the correct law. Reference is thus, answered accordingly".

C/FA/664/2018 JUDGMENT DATED: 27/07/2022

6. Considering the proposition laid down in Valiben's case

(Supra), the claimant would be entitled for the compensation as

per the structure formula even in case of self-negligence of the

driver when the Insurance Company has accepted additional

premium for the risk of driver. The income of the deceased was

assessed by the learned Tribunal as notional income of Rs.1500/-.

However, the admitted fact is that the deceased claimant was

driver on the Truck which was loaded with tomatoes. Considering

the year of date of accident as as 2.10.1995, this Court considers

it appropriate to grant Rs.2,000/- in absence of any documentary

evidence regarding income. Thus, going by the structure formula