Gujarat High Court
National Insurance Company vs Rajeshbhai Bansibhai Dantani on 15 September, 2022
Bench: Hemant M. Prachchhak
C/FA/1951/2011 JUDGMENT DATED: 15/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1951 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NATIONAL INSURANCE COMPANY
Versus
RAJESHBHAI BANSIBHAI DANTANI & 3 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
MR.KARNA H DHOMSE(6684) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,4
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 15/09/2022
ORAL JUDGMENT
1. The present appeal is filed by the appellant -
C/FA/1951/2011 JUDGMENT DATED: 15/09/2022
National Insurance Company - original respondent No.4
feeling aggrieved and dissatisfied with the judgment and
award dated 24.2.2011 passed by learned Motor Accident
Claims Tribunal (Aux.), Ahmedabad City in Motor Accident
Claims Petition No.57 of 2004 whereby learned Tribunal has
partly allowed the claim petition by awarding Rs.1,25,620/-.
2. The present appeal is filed mainly contending
that the injured was travelling in the goods carriage vehicle
and therefore, the appellant insurance company is not liable
to indemnify to the insurer and therefore, they are not liable
to pay the amount of compensation. The appeal is also filed
on the other grounds enumerated in the memo of the
appeal.
3. I have heard Mr.Mazmudar, learned advocate for
the appellant - insurance company, Mr.Rathin Raval,
learned advocate for respondent No.3 - insurance company
and Mr.Hiren Modi, learned advocate with Mr.Karan
Dhomse, learned advocate for respondent No.1 - original
claimant.
C/FA/1951/2011 JUDGMENT DATED: 15/09/2022
4. Mr.Mazmudar, learned advocate for the appellant
- insurance company mainly contended that since the
claimant was travelling in the goods carriage vehicle and
therefore, the appellant - insurance company is not liable to
indemnify are their liability is not to be fastened. He further
contended that the vehicle involved in the alleged accident is
used as "hire and reward" and therefore also, it is not
covered under the policy. In support of his submissions,
Mr.Mazmudar, learned advocate for the appellant has relied
upon the decision of this Court rendered in First Appeal
No.913 of 2011 dated 23.12.2021. Learned advocate for
the appellant has also relied upon the judgment of the
Honourable Apex Court in the case of National Insurance
Company Limited Vs Rattani and others, reported in
(2009) 1 TAC 420 SC and it is contended that the present
appeal is required to be allowed and the appellant insurance
company is to be exonerated from the liabilty to indemnify
the insurer.
5. Per contra, Mr.Rathin Raval, learned advocate
C/FA/1951/2011 JUDGMENT DATED: 15/09/2022
appearing for respondent No.3 - insurance company has not
controverted the facts, however, learned advocate for
respondent No.3 has objected that since the appellant
insurance company is rightly held responsible by the
learned Tribunal after evaluating the evidence on record and
therefore, the impugned judgment and award may not be
disturbed and no interference is required to be called for in
the present appeal.
6. Mr.Hiren Modi, learned advocate Mr.Karan
Dhomse, learned advocate have contended that since it is
the dispute between two insurance companies, they are not
affected since they are the third party and therefore, either
the appellant - insurance company or respondent No.3 -
insurance company be held responsible to pay the amount
of compensation and they will recover the same accordingly.
7. Heard learned advocates for the respective
parties. I have also gone through the Record and
Proceedings and the material i.e. policy of the vehicle in
question made available to this Court.
C/FA/1951/2011 JUDGMENT DATED: 15/09/2022
8. In the insurace policy of the vehicle involved in
the accused, it is clearly mentioned that it is the policy for
goods carriage vehicle and risk is covered to that extent
only. No additional amount of premium is paid for other
heads. Considering the earlier decision of this Court, this
Court is of the considered opinion that present appeal is
required to be allowed by modifying the finding recorded
and conclusion arrived at by learned Tribunal to the extent
that present appellant insurance company is exonerated
from liability to indemnify the insurer.
9. So far as the findings recorded by learned
Tribunal about negligence and quantum of compensation
are concerned, the original claimant has not filed the cross
appeal to enhance the amount of compensation. Therefore,
the impugned judgment and award remains unaltered
except the finding recorded qua the liability of the appellant
insurance company.
10. In view of the aforesaid discussion, the appeal is
C/FA/1951/2011 JUDGMENT DATED: 15/09/2022
allowed in part. The impugned judgment and award remains
unaltered except the finding recorded qua the liability of the
appellant insurance company. The appellant - insurance
company is exonerated from its liability. The respondent
No.3 - insurance company to satisfy the impugned
judgment and award by depositing the awarded amount
before the learned Tribunal as per the order. The amount
deposited by the appellant insurance company be refunded
to the appellant insurance company with proportionate
costs and interest. If any amount is deposited before this
Court during pendency of this appeal, the same is also to be
transmitted to the concerned Tribunal and the same is also
to be refunded to the appellant insurance company after
verifying the bank details through RTGS. Respondent No.3
insurance company to deposit the amount of compensation
in termsof the award passed by learned Tribunal within a
period of six weeks from the date of receipt of this order and
respondent No.3 is entitled to recover the said amount from
the driver and owner of Matador involved in the accident in
question by way of filing appropriate proceedings. The
C/FA/1951/2011 JUDGMENT DATED: 15/09/2022
amount of compensation is tobe disbursed to the original
claimant after verifying the bank details of the original
claimant through RTGS. Record and Proceedings be sent
back to the concerned Tribunal forthwith. No order as to
costs.
(HEMANT M. PRACHCHHAK,J)
H.M. PATHAN
