Cholamandalam M S General ... vs Legal Heirs Of Deceased ...
2022 Latest Caselaw 9017 Guj

     C/FA/3784/2011                               JUDGMENT DATED: 12/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3784 of 2011


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.J.DESAI                     sd/-

and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-

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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 ?

==========================================================
  CHOLAMANDALAM M S GENERAL INSURANCE COMPANY LIMITED
                          Versus
LEGAL HEIRS OF DECEASED NATVERBHAI KANJIBHAI PATEL, PATEL &
                         8 other(s)
==========================================================
Appearance:
MR SANDIP C SHAH(792) for the Appellant(s) No. 1
MR KAMLESH S KOTAI(6150) for the Defendant(s) No. 2,3,4,5,6.
RULE NOT RECD BACK for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 7, 8,9
==========================================================

    CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 12/10/2022

                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

C/FA/3784/2011 JUDGMENT DATED: 12/10/2022

1. This appeal under Section 173 of the Motor Vehicles Act,

1988 ("the Act" for short) is filed by the appellant - insurance company

challenging the judgement and award dated 30/09/2010, passed by the

Motor Accident Claims Tribunal (Auxi.), Mehsana in Motor Accident

Claims Petition No.568 of 2006, wherein claim petition filed by the

original claimants came to be allowed in part and compensation of

Rs.5,58,000/- was awarded with interest at the rate of 7.5% per annum

from the date of filing of the claim petition till realization, with

proportionate costs.

2. Brief facts, arising from the record, are as under:

2.1 On 25/06/2006, Natvarbhai Kanjibhai Patel was travelling in

a Qualis car bearing registration No.GJ-2-R-5588. After 'Shiradi' darshan

while returning they were going from Ahmedabad to Mehsana. The said

Qualis car was owned by respondent No.8 (original opponent no.2) and

driven by respondent No.7 (original opponent no.1). It was case of the

original claimants that around 1:30 at night, when they reached near

Rajpur village, while overtaking one truck, driver lost control over

steering, because of which, the Qualis car turned turtle and resulted into

the accident. Because of the said accident, Natvarbhai Kanjibhai Patel

C/FA/3784/2011 JUDGMENT DATED: 12/10/2022

(hereinafter referred to as "the deceased") sustained serious injuries and

succumbed to the same. For the said accident, legal heirs of Natavarbhai,

as original claimants filed claim petition under section 166 of the Motor

Vehicles Act, seeking compensation of Rs.20,00,000/-. It is on record that

one of the original claimant-wife of the deceased, expired during

pendency of claim petition and therefore, legal heirs of the deceased were

arrayed in the claim petition as applicant Nos.1 to 6.

2.2 Upon filing of the claim petition, Notices were issued.

Respondents appeared. Opponent Nos.1 & 2 i.e. driver and owner of

Qualis car filed their written statements below Exh.12 whereas opponent

No.3- Insurance company filed its written statement below Exh.21. It was

case of the insurance company before the Tribunal that the deceased was

traveling in a car hired by him after payment of fare and policy of Qualis

car being not for hire and reward, the insurance company is not liable for

any payment. There is breach of terms and conditions of the policy by the

owner of vehicle and therefore, insurance company is not liable for

payment of compensation.

2.3 After hearing the parties and upon appreciation of oral and

documentary evidence on record, Tribunal decided the issues as under:

C/FA/3784/2011 JUDGMENT DATED: 12/10/2022

In relation to negligence, Tribunal held that accident

occurred on account of sole negligence of driver of Qualis car and

because of said negligence accident occurred and the deceased died.

In relation to compensation, the Tribunal held that as the

policy of insurance company was in existence for the period of accident

and extra premium, covering the risk of passenger, being paid by the

owner of Qualis car, legal heirs of the deceased are entitled for the

payment of compensation.

The Tribunal awarded total compensation of Rs.5,58,000/-

with interest at the rate of 7.5% per annum, from the date of filing of

claim petition till realisation, with proportionate costs. Tribunal held

respondent Nos.1, 2 & 3 i.e. driver, owner and insurance company of

Qualis car, liable for payment of compensation.

3. Aggrieved by liability fastened on the insurance company of

Qualis car, present appeal is filed by the appellant - insurance company

challenging the impugned judgement and award of the Tribunal.

4. Heard learned advocate Mr.Sandip Shah, for the appellant-

Insurance company and learned advocate Mr.Kamlesh Kotai, for

C/FA/3784/2011 JUDGMENT DATED: 12/10/2022

respondent Nos.2 to 6. Though served, respondent Nos. 7 and 8

(driver and owner of Quails car) chose not to appear. Issuance of policy

and its operation at the time of accident has not been denied. Record and

proceedings of the case have been secured and placed before this court

for perusal.

5. Mr. Sandip Shah, learned advocate for the appellant

submitted that judgement and award of the Tribunal is erroneous as

Tribunal has erred in not considering that, the owner of Qualis car had

used the car for hire purposes on payment of fare. The owner of the car

had violated the terms of policy and therefore the appellant is not liable

for payment of compensation as awarded. He further submitted that the

deceased was traveling in the Qualis car, which was registered as private

car and after paying fare to the owner of the Qualis car, he was traveling

as a passenger. As the deceased was traveling as a passenger on hire

charges, there is a breach of terms and conditions of insurance policy and

therefore, insurance company is not liable for the payment as awarded.

He further submitted that Tribunal has also erred in observing that once

the insurance company has accepted extra premium, they are liable to pay

the compensation.

C/FA/3784/2011 JUDGMENT DATED: 12/10/2022

In relation to other grounds raised in the memo of appeal for

quantum of compensation awarded, he fairly submitted that, in view of

the decisions of Hon'ble Supreme Court in the case of National

Insurance Company Limited vs. Pranay Sethi and Others reported in

(2017) 16 SCC 680 and Sarla Verma and others Vs. Delhi Transport

Corporation and another reported in (2009) 6 SCC 1211, he is not

pressing them.

6. Per contra, Mr.Kamlesh Kotai, learned advocate for the

respondents - original claimants supported the judgement and award of

the Tribunal dated 30.09.2010, and submitted that from the record it is

clear that the appellant -Insurance company has failed in establishing that

the deceased was travelling as a passenger by payment of fare on hire

basis. Further, the risk of passenger was covered as extra premium has

been paid and accepted by the insurance company and therefore the

Insurance Company is liable for the payment of compensation as awarded

by the Tribunal vide judgement and award dated 30/09/2010. He further

submitted that compensation awarded by the Tribunal being just

compensation, does not call for any interference and thus, submitted to

dismiss the appeal.

C/FA/3784/2011 JUDGMENT DATED: 12/10/2022

7. Heard learned advocates for the respective parties and

perused the record and proceedings of the case.

8. Upon re-appreciation of the evidence on record, it is noticed

that policy of insurance company is on record at Exh-36. The said policy

covers period of accident. This fact is also supported in the written

statement filed by owner of Qualis car at Exh.12. In the affidavit filed by

the owner of Qualis car, he had stated that, at the time of accident, policy

was in existence and therefore, insurance company of Qualis car was

liable for payment of compensation. From the affidavit filed, nothing

came on record which suggest that the car was given on hire and the

deceased was traveling as a passenger. Moreover, though heavy reliance

has been placed on charge sheet at Exh-38 by the insurance company,

perusal of the same does not referred that, the deceased was traveling as a

passenger on hire basis. Further, in the cross-examination at Exh-39,

nothing contrary came on record that the deceased was traveling by hiring

the car as passenger. Further, the finding of the Tribunal that, extra

premium was paid which covers the risk of passenger cannot be ignored.

In view of the above factual findings, we are not in agreement with the

submission of learned advocate for the appellant that the deceased was

traveling as a passenger in the car after payment of fare on hire basis.

C/FA/3784/2011 JUDGMENT DATED: 12/10/2022

Therefore, the findings of the Tribunal are upheld that the accident

occurred on account of sole negligence of driver of Qualis car and the

deceased died in the accident occurred on 25/06/2006. As the submission

on behalf of insurance company, that deceased was travelling as

passenger on hire basis on payment of fare could not be established and

accepted for the reasons stated herein above, we deemed it appropriate

not to go in the aspect of extra premium being paid by the owner of the

Qualis car.

In relation to the grounds of compensation raised in the

memo of appeal, we appreciate the fairness shown by learned advocate

Mr.Sandip Shah and upheld the quantum of compensation awarded by the

Tribunal. In view of the above, the appeal filed by the appellant -

insurance company, does not call for any interference of this Court. For

the reasons aforesaid, the appeal of the Insurance Company being

meritless, is hereby dismissed.

9. The original claimants are therefore, entitled for the

compensation awarded by the Tribunal. The amount of compensation

deposited by the appellant - Insurance company and lying in the Fixed

Deposit with interest, shall be disbursed to the respondents- original

C/FA/3784/2011 JUDGMENT DATED: 12/10/2022

claimants through RTGS, after due verification, within a period of four

weeks from the date of receipt of copy of this order.

10. Registry is directed to transmit back the Record and

Proceedings of the case to the concerned Tribunal forthwith. However,

there shall be no order as to costs.

sd/-

(A.J.DESAI, J)

sd/-

(MAUNA M. BHATT,J)

DIPTI PATEL