Gujarat High Court
United India Insurance Co.Ltd vs Vikramsinh Jitsinh Jadav on 7 August, 2023
Bench: S.V. Pinto
NEUTRAL CITATION
C/FA/3622/2007 JUDGMENT DATED: 07/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3622 of 2007
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 CO.LTD.
Versus
VIKRAMSINH JITSINH JADAV & 1 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 1.3
MR YM THAKKAR(902) for the Defendant(s) No. 1.1
RULE SERVED for the Defendant(s) No. 1.2,1.4,1.5
SERVED BY AFFIX. (R) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/08/2023
ORAL JUDGMENT
1] This first appeal has been filed by the appellant-original
opponent No.2 - Insurance Company against the respondent Nos.
1 -5 original claimants and the respondent no. 6- original opponent
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No. 1, under Section 173 of the Motor Vehicles Act, ( 'The Act', for
short) against the judgment and award passed by learned
M.A.C.Tribunal (Aux.), Presiding Officer, 3 rd Fast Track Court,
Panchmahals at Godhara in Motor Accident Claim Petition No. 197
of 1999 on 31.01.2007. 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 11/01/1999 at about 08.30 am, Vikramsinh
Jitsinh Jadav was going on Tractor No. GTM-7864 and Trolly No.
GTG-7859 to the Petrol Pump to bring fuel and when they reached
near Meshry river bridge, Satpur in Godhara Town, the Tractor
driver was driving the tractor in a rash and negligent manner and
lost control over the Tractor and the Tractor turned turtle in a ditch.
The complaint was lodged with Godhara Town Police Station vide
I-C.R.No.19/1999. The claimants, who are the widow and children
of deceased Vikramsinh Jitsinh Jadav have filed the claim petition
mainly stating that the deceased was 28 years of age the the time
of accident and was earning Rs.2,800/- from doing agriculture
work as well as from the service. The claimants have lost their sole
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earning member. That the deceased had no vices and suffered
pain and agony after the accident till he succumbed to the injuries
and the widow and the children have lost the love and affection of
the deceased and hence have claimed an amount of Rs.6,00,000/-
under all available heads from all opponents jointly and severally
with interest at the rate of 21% from the date of accident till
realization.
2.2] The notices were duly served to the opponents but the
opponent No. 1, who is the owner of a tractor No. GTM-7864 and
the trolley No. GTG-7859 did not submit any written statement but
the opponent No.2 Insurance Company appeared and filed the
written statement at Exh:39. The Insurance Company denied all
their allegations made in the claim petition and have stated that
vehicle was insured with the Insurance Company in the category of
commercial vehicle policy and only the risk of driver is covered and
the premium of Rs.15/- for the purpose of Workmen Compensation
Act is paid and the driver has filed his Workmen Compensation
Application No. 18 of 1999 in the Labour Court at Godhara but the
risk of the deceased is not covered and has urged the Tribunal to
exonerate the Insurance Company.
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2.3] Learned Tribunal, after considering the oral and the
documentary evidence and the arguments of the learned
advocates for the respective parties and the judgment submitted
by the learned advocates, held the opponents jointly and severally
liable to pay an amount of the compensation and award an amount
of Rs.4,20,000/- with interest at the rate of 9% from the date of
petition upto 31st December, 2000, and thereafter at 7.5% till
realization.
3] Being aggrieved and dissatisfied with the said
judgment and award, the appellant-Insurance Company has filed
the present appeal mainly contending that the risk of the deceased
was not covered under the policy in question and no additional risk
qua conductor/cleaner was covered and hence there was no
question of the claim being tenable under the provisions of Motor
Vehicles Act.
3.1] That learned Tribunal ought to have appreciated that
as the claim was not tenable, there was no question of awarding
compensation to the claimants and the Insurance company was
not liable to satisfy the award. That the learned Tribunal has also
ordered the Insurance Company to recover the amount of
compensation from the owner of the vehicle, who is opponent No.
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1, but the Insurance Company cannot be held liable as the risk is
not covered. That the award is grossly exaggerated and hence has
urged this Court to exonerate insurance company from paying the
amount of compensation.
4] Heard learned advocate Mr. Maulik J Shelat and learned
advocate Mr. Y.M.Thakkar for the opponent No. 1.1. Though
served, the other respondent have not appeared.
5] Learned advocate Mr. Maulik J. Shelat has reiterated the
contents of the claim petition and has submitted that there is no
seating capacity in the tractor and admittedly the deceased was
traveling in the tractor and his risk is not covered that the tractor
and trolley was going to fill diesel at the petrol pump. It is not the
case of the claimants that the tractor was going for agricultural
work or for loading any goods. That no statutory cover is available
for passengers traveling in a tractor and trolley as per settled
principles of law and the learned advocate has relied on the
following judgments, in support of his case:
1. AIR 2007 SC 1971
Oriental Insurance CO. Ltd Vs.Brij Mohan & Ors
2. (2004) 8 SCC 697
National Insurance Co. Ltd. V Chinnamma & Ors.
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3. 2022 Law Suit (SC) 1542
Balu Krishna Chavan V The Reliance General Ins.
Com. Ltd. & Ors.
4. 3 (2011) ACC 190
Thakor Taraben v. Thakor Domalji Movtaji & Ors.
5. First Appeal No. 282 of 2008 Order dated
23/11/2015
United India Insurance Company Ltd. Vs. Kashiben
Gamansinh Chauhan & Ors.
6] Learned advocate Mr. Y.M.Thakkar for the opponent
No. 1.1 has vehemently argued that the deceased was a third
party to the vehicle and the Policy of the Insurance Company
includes the risk of a third party and hence the order of the learned
Trial Court directing the Insurance Company to pay the amount of
award and recover the same from the Insurance Company is just
and proper and no interference is required in the judgment and
award passed by the learned Tribunal.
6.1] Learned advocate for the respondent No. 1.1 has relied
on in the case of Manuara Khatun V. Rajesh Kr. Singh with
Mamoni Saikia Mohanty & Ors V. Rajesh Kr. Singh, reported in
AIR (2017) SC 1204.
7] From the records and proceedings of M.A.C.P. No.197
of 1999, the claimant No. 1 has filed her Examination-in-Chief at
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Exh. 24 and has been cross examined by the learned advocate for
the opponent No. 2 Insurance Company. Admittedly, the claimant
No. 1 is not an eye witness to the accident and no evidence
regarding the income of the deceased has been produced on
record. The claimants have produced a copy of the complaint at
Exh: 27 and the complaint has been filed by the opponent No. 1 on
11th January, 1999, and he has stated that tractor No. GTM-7864
belonged to him and his driver Bhalsinh Prabhatsinh, one another
person of Bhathina Ghoda village of Godhra Taluka and another
person went with the tractor to Patel Petrol Pump to fill diesel and
at around 08:30, when they reached the end of Satpul bridge at
the turning, the tractor turned turtle and went down from the road
and the tractor driver and another person died on the spot. The
claimants have produced the panchnama of place of the offence at
Exh: 28, inquest panchnama at Exh; 29, the postmortem note at
Exh:30, the policy at Exh: 131 and the R.C.Book at Exh: 32. It is
not in dispute that the driver Bhalsinh Prabhatsinh was driving the
tractor with the deceased and another person and the accident
occurred as the tractor turned turtle and the driver and the
deceased succumbed to their injuries on the spot. As per the
complaint, the tractor was going to fill diesel and it is not the case
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of the claimants that they were going to bring any goods.
8] In Oriental Insurance CO. Ltd Vs. Brij Mohan (supra),
the Hon'ble Apex Court has observed as under: -
8. The Tribunal in its award has, inter alia, noticed that the appellant
herein had raised a specific defence, namely, the trolley was not insured. It
does not appear that the said contention of the appellant had been gone into.
There is nothing on records to show that the owner of the tractor had
produced any insurance cover in respect of the trolley. It is furthermore not
disputed that the tractor was insured only for the purpose of carrying out
agricultural works. The representative of the Insurance Company Mr. Hari
Singh Meena on cross-examination merely accepted the suggestion that
cutting the earth and levelling the field with earth would be an agricultural
work but respondent no.1 himself categorically stated in his claim petition
before the Tribunal stating that the earth had been dug and was being carried
in the trolley to the brick-klin. Evidently the earth was meant to be used only
for the purpose of manufacturing bricks. Digging of earth for the purpose of
manufacture of brick-klin indisputably cannot amount to carrying out of the
agricultural work.
10. Furthermore, respondent was not the owner of the tractor. He was
also not the driver thereof. He was merely a passenger travelling on the
trolley attached to the tractor. His claim petition, therefore, could not have
been allowed in view of the decision of this Court in New India Assurance Co.
Ltd. v. Asha Rani & Ors. [(2003) 2 SCC 223] wherein the earlier decision of
this Court in New India Assurance Co. v. Satpal Singh [(2000) 1 SCC 237]
was overruled. In Asha Rani (supra) it was, inter alia, held :- "25. Section 147
of the 1988 Act, inter alia, prescribes compulsory coverage against the death
of or bodily injury to any passenger of "public service vehicle". Proviso
appended thereto categorically states that compulsory coverage in respect of
drivers and conductors of public service vehicle and employees carried in a
goods vehicle would be limited to the liability under the Workmen
Compensation Act. It does not speak of any passenger in a "goods carriage".
26. In view of the changes in the relevant provisions in the 1988
Act vis-`-vis the 1939 Act, we are of the opinion that the meaning
of the words "any person" must also be attributed having regard
to the context in which they have been used i.e. "a third party".
Keeping in view the provisions of the 1988 Act, we are of the
opinion that as the provisions thereof do not enjoin any statutory
liability on the owner of a vehicle to get his vehicle insured for
any passenger travelling in a goods vehicle, the insurers would
not be liable therefor.
27. Furthermore, sub-clause (i) of clause (b) of sub- section (1)
of Section 147 speaks of liability which may be incurred by the
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owner of a vehicle in respect of death of or bodily injury to any
person or damage to any property of a third party caused by or
arising out of the use of the vehicle in a public place, whereas
sub-clause (ii) thereof deals with liability which may be incurred
by the owner of a vehicle against the death of or bodily injury to
any passenger of a public service vehicle caused by or arising
out of the use of the vehicle in a public place."
9] In view of the above, as the deceased was a
passenger traveling in the trolley attached to the tractor and the
provision of the Act did not enjoin any statutory liability on the
owner of the vehicle to get the vehicle insured for any passengers
traveling in a goods vehicle and hence the Insurance Company
would not be liable thereof. The learned advocate for the claimants
has argued that the deceased would be a third party, and hence,
the liability of the Insurance Company would be maintained but as
per the complaint produced at Exh:27 and the deposition of the
claimant no. 1 that the deceased was traveling in the tractor, while
the tractor and trolley was going for filling diesel and as he was
traveling in the tractor he cannot be said to be a third party to the
accident, and hence, the Insurance Company is not liable to pay
the amount of the compensation.
10] The learned Tribunal has passed the order of pay and
recover and has ordered that the Insurance Company shall be
liable to recover the amount of compensation from the opponent
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No. 1- owner of the vehicle involved in the accident and the
learned advocate for the claimants has relied on the case
Manuara Khatun (supra).
11] In the case of Balu Krishna Chavan (supra) , the
Hon'ble Supreme Court has on 3 rd November, 2022 observed as
under;
8. Hence, the only aspect for our consideration herein, is as to
whether in the facts and circumstances of the present case, an order to
direct the Insurance Company to "pay and recover", is required to be
made. On this aspect, the law is well settled that if the liability of the
Insurance Company is decided and they are held not to be liable,
ordinarily, there shall be no direction to "pay and recover". However, in
the facts and circumstances arising in each case, appropriate orders
are required to be made by this Court to meet the ends of justice.
10. Therefore, on the legal aspect, it is clear that in all cases such
order of "pay and recover" would not arise when the Insurance
Company is not liable but would, in the facts and circumstances, be
considered by this Court to meet the ends of justice."
12] In view of the above and also the decision of this Court
in First Appeal No. 282 of 2008 in the case of Kashiben Chauhan
(Supra), the vehicle being a tractor and the appeal is allowed. The
Insurance Company is hereby exonerated from paying the amount
of compensation to the claimants. It is clarified that if any amount
is disbursed to the claimants, the same may not be recovered by
the Insurance Company but the the amount lying in Fixed Deposit
with the learned Tribunal be disbursed to the Insurance Company
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by NEFT / RTGS, after proper verification.
16] Record and proceedings be sent back to the
concerned Tribunal forthwith.
(S. V. PINTO,J)
VVM
