United India Insurance Company ... vs Raghuvirsinh Bhimsang Jadeja
2023 Latest Caselaw 5679 Guj

                                                                                       NEUTRAL CITATION




     C/FA/3350/2018                                   JUDGMENT DATED: 04/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3350 of 2018


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE S.V. PINTO
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1     Whether Reporters of Local Papers may be allowed to                  YES
      see the judgment ?

2     To be referred to the Reporter or not ?                               NO

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

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

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        UNITED INDIA INSURANCE COMPANY LIMITED, JAMNAGAR
                              Versus
                  RAGHUVIRSINH BHIMSANG JADEJA
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR PREMAL S RACHH(3297) for the Defendant(s) No. 4,5
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
NOTICE NOT RECD BACK for the Defendant(s) No. 1
S M KIKANI(7596) for the Defendant(s) No. 3
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    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
                      Date : 04/08/2023
                      ORAL JUDGMENT

1] This first appeal has been filed by the appellant-original

opponent No.4 - Insurance Company against the respondent Nos.

1-3 original opponents No. 1 to 3 and the respondent nos.4 & 5

original claimants under Section 173 of the Motor Vehicles Act,

( 'The Act', for short) against the judgment and award passed by

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learned M.A.C.Tribunal (Main.), Jamnagar, in Motor Accident

Claim Petition No. 461 of 2013 on 26 th April, 2013. The parties are

hereinafter referred to as the claimants and the opponents as they

stood in the original petition for the sake of convenience, clarity

and brevity.

2] The brief facts that emerge from the record of the case are

as under:-

2.1] That on 3rd November, 2012, Kirit Ashwinbhai Matthar,

son of the claimants was going from village Jogwad to Reliance,

driving jeep No. GJ-10-Y-3344 and when they reached near the

GSFC gate, the opponent No.1, who was driving tanker No. GJ-

21-T-6531, which was going ahead of the jeep, suddenly applied

the brakes , as a result of which, the Jeep dashed into the behind

the portion of the tanker and the driver of Jeep Kirit Matthar

sustained fatal injuries and succumbed to the injuries on the spot.

The offence. The complaint was lodged with Meghpar Police

Station, Jamnagar vide I-C.R.No.63/2012.

2.2] The claimants, who are the parents of the deceased

Kirit Ashwinbhai Matthar have filed the claim petition, mainly

stating that the deceased was hale and hearty and hard working

and able bodied and was maintaining the whole family. That the

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deceased was working as a Supervisor with Mamta Constructions

and was earning Rs.14,500/- pm and the claimants have lost their

own son. That the claimants claimed an amount of Rs.15,00,000/-

jointly and severally from all opponents under all available heads.

2.3] The opponents were duly served with the notices and

the opponents No. 2, 3 and 4 appeared through their advocates

whereas the opponent No. 1 owner of the tanker did not appear.

The opponents No. 2 and 4 are the Insurance Companies of

Tanker No. GJ-21-T-6531 and Jeep No. GJ-10-Y-3344

respectively and have filed the written statement at Exh:26 and

Exh: 29 respectively and have denied any liability to pay the

amount of compensation and sought for dismissal of the claim

petition. The opponent No.3 owner of Jeep No. GJ-10-Y-3344 has

denied any negligence on the part of the deceased and has

submitted that the accident has occurred to the sole negligence of

the tanker driver.

2.4] Learned Tribunal, after considering the income of

Rs.9,000/- pm, deducted ½ amount for personal expenditure and

considering the loss of dependency and loss of estate and funeral

expenses, awarded an amount of Rs.10,02.000/- from the

opponents No. 3 and 4 and exonerated the Tanker No. GJ-21-T-

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6531 from paying any amount of compensation.

3] The Tribunal held that the accident has occurred to the sole

negligence of the deceased himself and has observed that the

opponent No.4 has insured Jeep No. GJ-10-Y-3344 by Public

carriers Package Policy, which is produced at Exh: 46 and covers

the date of accident and as per the policy, the Insurance Company

has taken an amount of Rs.250/- towards the workmen

compensation to employee 5 hence even if 100 % negligence of

the deceased is found applied the Schedule-IV of the Workmen

Compensation Act and accordingly held the opponents No. 3 and

4 liable for payment of compensation.

4] Being aggrieved and dissatisfied with the judgment and

award, the appellant-original opponent No. 4-Insurance Company

of Jeep No. GJ-10-Y-3344 has filed the present appeal mainly

contending that the deceased was employed as Supervisor i.e.

Employer Mamta Construction Company and the learned Tribunal

ought not to have believed the evidence of the proprietor of Mamta

Constructions that the deceased was serving as a driver from

June-2012 and that he was paid salary of Rs.6,000/- per month.

That the learned Tribunal has no jurisdiction to direct the Insurance

Company to satisfy the award when there is findings of sole

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negligence against the deceased, and hence, the appeal must be

allowed and the Insurance Company must be exonerated from

paying the amount of compensation.

5] Heard learned advocate Mr. Vibhuti Nanavati appearing for

the appellant- Insurance Company and learned advocate Mr.

Ranthin Raval appearing for the respondent No. 2 and learned

advocate Mr. Premal Rachh appearing for the respondents No. 4 &

5. Though served, the other respondents have not appeared.

6] Learned advocate Mr. Vibhuti Nanavati appearing for the

appellant-Insurance Company has reiterated the contents of the

appeal memo and has urged this Court to allow the appeal and

exonerate the Insurance Company from paying any amount of

compensation and has stated that the judgment and award passed

by the learned Tribunal must be modified to that extent.

7] Learned advocate Mr. Premal Rachh, appearing for the

respondents No. 4 and 5-original claimants and learned advocate

Mr. Ranthin Raval appearing for the respondent No. 2-Insurance

Company of Tanker No. GJ-21-T-6531 have submitted that the

judgment passed by the learned Tribunal is just and proper and no

interference is required in the judgment and award passed by the

learned Tribunal.

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8] On perusal of the records and proceedings of M.A.C.P.

No.461 of 2013, the claimant No. 1 has been examined at Exh: 37

and has narrated all ingredients of the claim petition and during the

course of cross examination had admitted that in the incident, his

son-deceased Kirit Matthar was driving jeep No. GJ-10-Y-3344

and the said vehicle dashed into the behind portion of the Tanker,

the claimant has stated that his son was unmarried and was

working as as driver and earning an amount of Rs.14,500/-. The

claimants have produced a copy of the FIR at Exh:39, panchnama

of place of offence at Exh:40, R.C.Book of Tanker No. GJ-21-T-

6531 at Exh: 42, Insurance Policy of Tanker No. GJ-21-T-6531 at

Exh:43 , Driving License of deceased at Exh:44, R.C.Book of Jeep

No. GJ-10-Y-3344 at Exh:45, Insurance Policy of Jeep No. GJ-10-

Y-3344, at Exh: 46, postmortem note of the deceased at Exh: 47,

goods carriage permit of Tanker No. GJ-21-T-6531 at Exh: 48 and

final report abated summary of the offence in question at Exh: 49.

So far as the documents are concerned, it transpire that the

offence was registered at Meghpar Police Station, Jamnagar

police station at I-C.R.No. 63 of 2012 against the deceased Kirit

Matthar and an abated summary was filed after due the

investigation by Investigating Officer. On perusal of the Insurance

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Policy produced at Exh 46, it appears that an amount of Rs.100/-

has been paid as compulsory pay to owner-driver, an amount of

Rs. 2,00,000/- and Workmen Compensation to Employee-IV of

Rs.250/- has been paid as additional premium and the learned

Tribunal has discussed this aspect in the judgment in para 23 at

length.

9] In Valiben Laxmanbhai Thakore v. Kandla Dock Labour

Board, reported in 2022 (1) GLR 440, this Court has observed in

para 13 are as under:-

13. The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy whereunder the entire liability in respect of the death of or bodily injury to any such employee as is described in sub-Cl. (a) or (b) or (c) of proviso

(i) to Sec. 147(1)(b) may be fastened upon the insurance company and insurance company may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance company in case of death of or bodily injury to the aforesaid kind of employees is not restricted to that provided under the Workmen's Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy.

10] In view of the above discussion, the judgment and award

passed by the learned Tribunal is just and proper and the appeal

of the appellant deserves to be dismissed and the same is hereby

dismissed with no order as to costs.

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11] Record and proceedings be sent back to the

concerned Tribunal forthwith.

(S. V. PINTO,J) VVM