New India Assurance Co. Ltd vs Siraz Fatehsinh Mansoori
2022 Latest Caselaw 2777 Guj

     C/FA/3577/2013                                  CAV JUDGMENT DATED: 11/03/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 3577 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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 ?

========================================================== NEW INDIA ASSURANCE CO. LTD.

Versus SIRAZ FATEHSINH MANSOORI & 2 other(s) ========================================================== Appearance:

MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1

MR.HIREN M MODI(3732) for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 11/03/2022

CAV JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by appellant-New India Assurance Co. Ltd. (Original Opponent No.3), being aggrieved and dissatisfied with the judgment and award

C/FA/3577/2013 CAV JUDGMENT DATED: 11/03/2022

dated 17.08.2013 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara in Motor Accident Claim Petition No.775 of 2007, by which the Tribunal has awarded Rs.4,20,000/- with 7.5% per annum interest to the claimant, by holding Opponent Nos.1 to 3 liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 06.05.2006 at about 2.45 p.m., the claimant was travelling in Truck bearing registration No.GJ-7-X-986 as a labourer for loading and unloading of sand and was proceeding towards Vadodara. The said Truck was driven by opponent No.1-Siraz Fatehsinh Mansoori in rash and negligent manner in excessive speed. While the Truck was passing through Kishan Nagar Bus Stand near village Kelanpur. At that point of time, one of the tyres of the Truck burst and therefore, Opponent No.1 lost his control over the vehicle and collided with tree and turned turtle. Due to that the claimant sustained severe injuries. As the accident occurred due to rash and negligent driving by Opponent No.1, the complaint was lodged at Varnama Police Station being C.R.I-51 of 2006. Accordingly, as the claimant has suffered physically, mentally as well as financially, the claimant has filed the claim petition under the provision of Section 166 of the Motor Vehicles Act, 1988 for getting the compensation of Rs.5,00,000/-.

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2.2 The Tribunal has issued summons to all the opponents. Opponent Nos.1 and 2 chose not to appear before the Tribunal. Opponent No.3-Insurance Company has appeared through advocate and filed its written statement at Exh.12, wherein the claim of the claimant is denied in toto and also denied the age, income, injuries & fracture and fact of the accident. Thereafter, he has prayed to dismiss the claim petition.

2.3 The Tribunal has framed the issues for its determination. Thereafter, the claimants has field his affidavit at Exh.20 and has also produced the documentary evidence; like certified copy of the Message Form, certified copy of the Panchnama, original discharge card of the claimant, original permanent disability certificate of the claimant issued by Dr. Nikesh Shah, copy of the R.C. Book of involved Truck, certified copy of charge-sheet, consent pursis, insurance policy of involved Truck, Xerox copy of plice statement of the claimant and xerox copy of police statement of the claimant's wife Minaben Baria, at Exh. 20 to 35.

2.4 The Tribunal, after considering the oral and documentary evidences, came to the conclusion that the claimant is entitled to get compensation of Rs.4,20,000/- with 7.5% per annum interest to the claimant, by holding Opponent Nos.1 to 3 liable, jointly and severally.

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2.5 Being aggrieved and dissatisfied with the above findings on the aspect of quantum as well as liability of the Insurance Company, the present First Appeal is preferred by the insurance Company.

3.1 Learned advocate Mr. Vibhuti Nanavati for the appellant-Insurance Company has submitted that the Tribunal had erred in passing the impugned judgment and award, by not considering the evidence available on record, which is against the law. Further, he has submitted that the Tribunal has failed to consider the contents of the F.I.R. at Exh.34, which was filed by the claimant-Balubhai Lallubhai Baria, wherein it has been recorded that the claimant was proceeding to the house of his in-laws at village Chapariya and he was walking towards village Chapariya and could not find any passenger carring vehicle except the said Truck, which was carrying sand. He occupied the Truck and also stated that other passengers has also occupied in the same Truck.

3.2 Further, he has submitted that the Tribunal ought to have held that the claimant-Balubhai Lallubhai Baria was occupied in the Truck as an unthorized passenger. Further, he has submitted that the Tribunal has erred in brushing aside the F.I.R. at Exh.34, as per the decisions of Hon'ble Apex Court in the case of Oriental Insurance Company Ltd. Vs. Premlata Shukla & Ors. reported in 2007 (7)

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Scale 725 and also as per the decision of Hon'ble Apex Court in the case of Amthiben, widow of Maganlala Pranlal Mistry Vs. O.N.G.C. reported in 1975 GLR 910.

3.3 Further, he has submitted that the Tribunal ought to have considered the claimant-as an unauthorized passenger in the goods carrying vehicle and thus, the insurance company ought to have been absolved from the liability as there is violation of the provisions of the Motor Vehicles Act, 1988. Further, he has submitted that the Tribunal has failed to appreciate that the insurance policy is 'Act only' and therefore, risk of unauthorized passenger is not covered under the insurance policy. Further, he has submitted that there were ten unauthorized passengers in the Truck.

3.4 Further, he has submitted that the Tribunal has erroneously relied upon the oral evidence of the claimant at Exh.20, as there were other sufficient documents on record to prove that the claimant was unauthorized passenger. Further, he has submitted that the claim application itself is contrary to the contents of the F.I.R., therefore, this appeal is required to be dismissed by exonerating the insurance company from the liability, as the Tribunal has committed gross error in awarding the amount of compensation by holding insurance company liable to pay the amount of compensation.

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3.5 Further, he has placed reliance upon the decision of this Court in the case of Hiraben Mangabhai & Ors. v. Maganbhai Somabhai & Ors., reported in 1997 (1) GLH 837 (para 11), this Court has observed the document made in the statement as per the provision of Sections 17 and 21 of the Indian Evidence Act, 1872, which would certainly be used against making documents in civil, to the extent it can be so done.

3.6 Further, he has drawn the attention of this Court that the statement given by the claimant as well as wife Minaben Baria before the police which is procured before the Tribunal at Exh.34 and 35 that they were travelling as an unauthorized passenger in the Truck.

3.7 Further, he has placed reliance as per the decision of this Court in the case of Oriental Insurance Company Ltd. Vs. Kaminiben Wd/O Ashokbhai Chandrashankar Vyas & Ors rendered in First Appeal No.913 of 2011 dated 23.12.2021, whereby this Court has observed that, in that case the deceased was travelling in Tempo, which is goods carriage vehicle and therefore, liability cannot be fastened on insurance company and the order of "Pay and Recover", not to be passed by the Tribunal.

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Therefore, he has relied upon para 15 of the said decision of this Court in the case of Kaminiben Wd/O Ashokbhai Chandrashankar Vyas & Ors (supra) and has submitted that in view of this, the present appeal is required to be, allowed by exonerating the insurance company from its liability to pay the amount of compensation to the claimant.

4.1 Per contra, learned advocate Mr. Hiren M. Modi appearing for the claimant-Respondent No.3 herein has submitted that the impugned judgment and award passed by the Tribunal is just and proper and no interference is required by this Court. Further, he has submitted that in the F.I.R., it may be possible that the claimant has given his own statement but police might have recorded the F.I.R. in its own way.

4.2 Further, he has pointed our from the Message Form that where, it is clearly mentioned that the claimant was coming in the Truck, which was loaded with the sand and the said Truck is turned turtle. Therefore, the claimant has received injury and it is found that the other persons found dead from the cabin and the claimant injured from the accident.

4.3 Further, he has submitted that merely some version given in the F.I.R. which does not be used against the claimant and claimant cannot be precluded for claiming the

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amount of compensation. Further, he has submitted that claimant has deposed before the Tribunal, who was also cross-examined by learned advocate for the insurance company and claimant in his deposition has categorically submitted that he was travelling in the said Truck as a labourer for loading and unloading the sand from the Truck. Therefore, his risk is covered under the insurance policy. Therefore, the Tribunal has rightly fastened the liability on the insurance company for payment of compensation.

4.4 In support of his submissions, he has place reliance on the decision of this Court in the case of Oriental Insurance Co. Ltd. Vs. Kantaben Rameshbhai Gohil & Ors. rendered in First Appeal No.2333 of 2007 dated 31.01.2022 and also relied upon the discussion made in para 3 of that judgment of this Court, by contending that in the face of specific averment in the claim petition that the persons were travelling along with their goods or as a labourer, the owners to disprove this averment rests upon the appellant-insurance company. If appeallant-insurance company had discharged its onus, it would have gone a long way in proving whether, or not, the deceased person was gratuitous passenger. Unfortunately, it has not been done and not even the driver of the offending bus was entered into witness box.

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Therefore, the burden to prove the breach of terms of contract rests squarely on the party, which complains of such breach and therefore, he submits that in the present appeal also, the said ratio of that judgment is squarely applicable.

4.5 Further, he has submitted that as per the recent decision of Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Chamundeswari & Ors. reported in 2021 ACJ 2558, more particularly para 8 which is very relevant. Further, he has submitted that when the evidence of the eye-witness, who was cross-examined and examined, is available on record, then there is no reason to give weightage to the contents of First Information Report or police statement and the evidence, which is recorded before the Tribunal. It has to be given weightage to the contents of First Information Report. Therefore, he has submitted that present appeal is required to be dismissed as the finding by the Tribunal regarding the liability, is just and proper and this Court may not interfere with the finding of the Tribunal as the impugned judgment and award is passed by considering the correct legal position. Therefore, he prays to dismiss this appeal.

5.1 I have considered the submissions of the respective parties. I have considered the averments made in the memo of appeal. I have considered the record and proceedings.

C/FA/3577/2013 CAV JUDGMENT DATED: 11/03/2022

It is found that the statement recorded by the police, which is produced by insurance company is at Exh.35 and 36, where the claimant and his wife have given different version about the accident and even in the F.I.R. The claimant has stated that he was waiting for the vehicle and since he has not found the vehicle, he has taken the seat in the vehicle, which was carrying sand. Therefore, that version is admittedly made by the claimant but thereafter, in the claim petition as well as during the deposition, the claimant has categorically stated that he was sitting in the Truck as a labourer and was going to unload the sand from the Truck. He was also cross examined by the learned advocate for the insurance company, where also he maintained that he was going to Sankheda to load the sand in the Truck.

5.2 Further, he has deposed that his left leg is required to be amputated due to the accident. Looking to the deposition and also cross-examination, nothing comes out from the evidence to believe that version, which is deposed before the Tribunal.

5.3 I have also considered the judgment of this Court which is cited by the insurance company but that is in the different facts which will be subsequently dealt with by this Court.

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The said issue has been decided by this Court in the case of Kantaben Rameshbhai Gohil & Ors. (supra) as well as in view of the decision of Hon'ble Apex Court in the case of Chamundeswari & Ors. (supra). Para 8 is relevant, which is reproduced as under;

"8. It is clear from the evidence on record of PW-1 as well as PW-3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW-1 & PW-3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW-1 herself travelled in the very car and PW-3, who has given statement before the police, was examined as eye-witness. In view of such evidence on record, there is no reason to give weightage [email protected] SLP(C) No.4705 of 2019 to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellant's counsel in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others1, this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and Others v. Oriental Insurance Company Limited2, this Court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, [email protected](C) No.4705 of 2019 framed under Motor

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Vehicles Act, 1988. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case."

Therefore, the Hon'ble Apex Court has also held that whatever deposition given before the Tribunal, should be given more weightage than, the contents of F.I.R. and other police records. When the insurance company has failed to examine the driver of the Truck, who was driving the Truck and who can be the best person to depose whether the claimant was travelling in the Truck as a gratuitous passenger or labourer, was not examined by the insurance company. Neither any other witness is examined by the insurance company, to prove the case that the claimant was travelling in the goods vehicle as an unauthorized passenger or occupied unauthorizedly. Therefore, I found that the contention of insurance company in the present appeal is not well founded in the view of the abovementioned discussions and in view of the facts and circumstances of the present case. Therefore, it requires to be rejected and the present appeal filed by the insurance company is meritless and is required to be dismissed, accordingly, which would meet the ends of justice.

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6. With the above observations, the following order is passed:

6.1 The present First Appeal No.3577 of 2013 is dismissed as meritless, with no order as to costs.

6.2 The concerned Tribunal shall disburse the entire amount to claimant lying in FDR and/or lying with the Tribunal, within a period of six weeks from today, by following due procedure, by way of account payee cheque, after proper verification.

6.3 Record and Proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA