Gujarat High Court

Tahirbhai Ismailbhai Ansari vs Valjibhai Lakhabhai Rathod on 25 August, 2023

Bench: Bhargav D. Karia

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     C/FA/2639/2012                                   JUDGMENT DATED: 25/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 2639 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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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                      TAHIRBHAI ISMAILBHAI ANSARI & 1 other(s)
                                      Versus
                      VALJIBHAI LAKHABHAI RATHOD & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2
MR NIKUNT K RAVAL(5558) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                  Date : 25/08/2023

                                 ORAL JUDGMENT

1. Heard Learned advocate Mr. Mohsin Hakim for

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learned advocate Mr. MTM Hakim for the

appellants and learned advocate Mr.Rudram

Trivedi for learned advocate Mr. Nikunt Raval

for respondent no.3.

2. The appellant-claimant has preferred this

appeal under section 173 of the Motor

Vehicles Act, 1988 (for short "the Act")

challenging the Judgment and Award dated

11.06.2012 rendered in MACP No.45/2008 passed

by the Motor Accident Claims Tribunal (Main)

Bharuch (for short "the Tribunal") whereby

the Tribunal awarded Rs.4,26,900/- towards

compensation with interest at the rate of 9%

per annum from the date of claim petition

till realisation and proportionate cost of

the petition to be realised from the

respondent nos. 1 and 2 jointly and

severally.

3. Brief facts of the case are that on

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04.12.2007 at about 6:00 pm, while the

deceased was working on JCB machine bearing

registration no. GJ.16.AA-4944 near Vankhadi

Bridge, Umarvada village as cleaner and was

showing the side to the driver of JCB machine

on completion of digging work, the driver of

the JCB machine lost the control over the

said JCB and the JCB turned turtle over the

deceased as a result of which the deceased

died on the spot.

3.1) The claimants therefore, filed claim

petition being Motor Accident Claims Petition

No. 45 of 2008 under section 163-A of the

Motor Vehicles Act, 1988 (For short "the

Act") before Motor Accident Claims Tribunal

(Main) Bharuch (For short "the Tribunal")

claiming compensation of Rs.4,57,500/- from

the driver, owner and insurance company of

the offending vehicle.

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3.2) On service of summons, respondent

no.1 appeared before the Tribunal through his

lawyer but did not file any written

statement. Respondent no.2 though served with

the notice, chose not to appear before the

Tribunal to contest the claim petition.

3.3) Respondent no.3 - insurance company

appeared and filed its written statement at

Exh.30 before the Tribunal denying the

contentions raised by the claimants in the

claim petition, more particularly, occurrence

of the accident, rash and negligent driving

of the driver of of JCB, resultant accident

and death of the deceased and the income of

the deceased. It was also contended that

respondent no.1 was not having valid and

effective driving license at the time of

accident and therefore, the respondent no.3

insurance company was not liable to pay any

compensation. It was further contended that

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though notice was issued to the insured and

driver of JCB for production of driving

license, same had not been produced and

therefore, adverse inference was required to

be drawn against the insured. It was

contended that the policy of the said vehicle

was miscellaneous package policy and no

additional premium was paid to cover the risk

of cleaner. It was contended that JCB is a

special type of vehicle and cannot be used

for any other purpose and sitting capacity of

JCB is one only and therefore, the insurance

company is not liable to pay any compensation

to the deceased cleaner as deceased being a

conductor, his risk was not covered.

3.4) The Tribunal framed issues at Exh.41

as under:

"1) Whether the applicants prove that the deceased sustained serious injuries and died in the accident

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which occurred out of the use of the motor vehicle involved in the accident? If Yes, which driver was negligent and to what extent?

2) Whether the Insurance Company proves that the insured had committed breach of terms and conditions of the policy and therefore, insurance company is not liable to pay compensation?

3) Whether the applicants proves that they are entitled to get the compensation from opponents? If yes, what amount?

                 5)    What order ?"


  3.5)           The    Tribunal          after        taking             into

consideration oral and documentary evidence

on record, more particularly, examination-in-

chief of father of the deceased at Exh.6, FIR

at Exh. 24 and Panchnama at Exh.25 held that

the deceased sustained serious injuries and

died in the accident which occurred due to

use of JCB involved in the accident and the

accident occurred due to negligence on part

of the driver of the JCB i.e. respondent

no.1.

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3.6) With regard to the compensation, the

Tribunal considered the affidavit of

examination-in-chief of father of the

deceased at Exh.6 wherein it was stated that

that at the time of accident deceased was

aged 22 years and was earning Rs.3300/- per

month while serving as a conductor on the JCB

machine. The Tribunal considering the income

of the deceased to be Rs.3300/-, deducted

1/3rd towards his personal expenditure

relying upon the judgment in case of Sarala

Verma (Smt.) and others Vs. Delhi Transport

Corporation and another reported in (2009) 6

SCC 121 and awarded Rs. 2200/- per month

[Rs.3300-Rs.1100( 1/3rd of RS.3300)] and

Rs.26,400/- (Rs.2200x12) towards loss of

dependency to the claimants.

3.7) The Tribunal thereafter, relying

upon the decision in case of Sarala Verma

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(Smt.) and others (supra), adopted multiplier

of 16 and awarded Rs.4,22,400/- towards loss

of dependency benefits of the claimants. To

this amount, the Tribunal awarded further sum

of Rs. 4500/- towards conventional heads of

funeral expenses and loss to estate. The

Tribunal thus awarded total compensation of

Rs.4,26,900/- to the claimants.

3.8) With regard to liability to pay the

compensation, the Tribunal held that the

Insurance company proved that the insured had

committed breach of terms and conditions of

the policy and though the cleaner was not

authorised to sit over the JCB machine,

deceased was traveling in the JCB machine in

which sitting capacity is only one and

therefore, deceased can be said to be a

gratuitous passenger and therefore, cannot

be said to be a third party and the Tribunal

therefore, held that insurance company is not

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liable to pay any compensation. The Tribunal

thereafter, directed that the claimants are

entitled to recover the compensation from

respondent nos. 1 and 2 with proportionate

cost and interest at the rate of 9% per annum

from the date of petition till the payment.

4. Learned advocate Mr. Mohsin Hakim for the

appellants claimants submitted that the

Tribunal erred in drawing unjustified and

unwarranted inferences from the evidence on

record as the Tribunal ought to have drawn

just and fair inferences. It as submitted

that though the claimants had claimed Rs.

4,57,500/-, the Tribunal awarded only Rs.

4,26,900/- towards compensation.

4.1) It was submitted that Tribunal erred

in attributing liability upon respondent

nos.1 and 2 by exonerating respondent no.3

insurance company from satisfying the claim

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amount. It was submitted that as per the

insurance policy on record, owner of the

vehicle had paid extra premium to cover the

risk of driver and person employed on the

vehicle as cleaner or conductor and

therefore, Tribunal committed an error in

allowing the claim of the respondent no.3

insurance company on the ground that sitting

capacity of the vehicle was only one i.e.

driver of the vehicle and risk of person

engaged in connection with the vehicle is

not covered under the policy.

4.2) It was further submitted that the

Tribunal committed an error in holding that

the deceased was travelling as a gratuitous

passenger on the vehicle though it clearly

transpires from the evidence on record that

deceased was employed as a cleaner on the

vehicle on the date of accident and was

giving directions to the driver when the

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accident occurred.

4.3) Learned advocate Mr. Mohsin

submitted that the Tribunal erred in adopting

the multiplier of 16 while quantifying the

amount of compensation awardable under the

head of loss of dependency benefits as the

deceased was aged 22 years on the date of

accident and as per decision in case of

Sarala Verma (Smt.) and others (supra),

Tribunal ought to have adopted the multiplier

of 18.

4.4) In the alternative, it was submitted

that the Tribunal ought to have awarded

compensation for the death of deceased as per

the provisions of Workmen's Compensation Act,

1923 in view of decision of this Court in

case of 1999 (1) GLR 2172.

4.5) It was further submitted that the

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Tribunal erred in awarding interest at the

rate of 9% only.

5. On the other hand, learned advocate Mr.

Rudram Trivedi for learned advocate Mr.

Nikunt Raval for the respondent no.3

insurance company submitted that the policy

of the JCB vehicle involved in the accident

was a miscellaneous package policy and no

additional premium was paid to cover the risk

of cleaner or conductor. It was submitted

that JCB machine is a special type of vehicle

and therefore, cannot be used for any other

purpose and sitting capacity of JCB is one

only and therefore, respondent no.3 insurance

company was not liable to pay any

compensation to the conductor as his risk

was not covered.

6. Considering the submissions made on behalf of

the respective parties and the evidence on

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record, insofar as question of negligence of

drivers as well as vehicles involved in the

accident, took into consideration affidavit

of father of the deceased - appellant herein

at Exh.6, FIR at Exh.24, Panchnama at Exh.25

and held that at the time of the accident,

deceased Asifbhai was not showing the side to

the driver but was sitting over JCB machine

along with the driver and land being wet, JCB

being heavy vehcile turned turtle due to

which deceased sustained serious injuries and

died. The Tribunal therefore, on the basis of

evidence on record, has rightly held that

accident occurred due to negligence on part

of the driver of the JCB, which requires no

interference.

7. Insofar as compensation is concerned, the

case of the appellant-claimant before the

Tribunal in examination in chief at Exh.6 was

that the deceased was serving as a conductor

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on the said JCB machine and earning Rs.3300/-

per month. Since respondent no.2 owner of the

JCB did not appear, the Tribunal believed the

say of the claimant and considered the

monthly income of the deceased to be Rs.

3300/- per month. The tribunal deducted 1/3rd

i.e. Rs.1100/- towards the personal

expenditure of the deceased and awarded

Rs.2200/- per month and Rs. 26400/- per year

towards loss of dependency benefits to the

claimants. The Tribunal thereafter

considering the age of the deceased to be 22

years at the time of accident, relying upon

the judgment in case of Sarla Verma(supra)

adopted multiplier of 16 and thereafter

awarded Rs. 4,22,400/- towards compensation

and further awarded Rs. 4500/- towards the

funeral expenses and loss of estate. The

Tribunal thus on the basis of evidence

available on record awarded total

compensation of Rs.4,26,900/- which is just

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and proper and requires no interference by

this Court.

8. The Tribunal however, while deciding the

liability amongst the respondents to satisfy

the award, considered the insurance policy

produced at Exh.39 and held that the

Insurance Company has proved that the insured

has committed the breach of terms and

conditions of the policy and though the

cleaner was not authorised to sit over the

JCB machine, he was travelling in the said

JCB machine in which sitting capacity was

only one and therefore, deceased was a

gratuitous passenger. The Tribunal therefore,

exonerated the respondent no.3 insurance

company from the liability to pay the

compensation.

9. Thus the Tribunal has correctly exonerated

the respondent no.3 insurance company from

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the liability to pay the compensation as the

insured has committed breach of terms of

insurance policy.

10. The next question therefore, arises for

consideration is once having held that the

insurance company is entitled to avoid its

liability under the insurance policy, whether

any direction to pay and recover is required

to be issued or not ?

11. The Hon'ble Apex Court in the decision

in case of Khenyei v. New India Assurance

Company Limited and others reported in (2015)

9 Supreme Court Cases 273 has held as under :

"20. This Court in Challa Upendra Rao[(2004) 8 SCC 517] & Nanjappan [(2004) 13 SCC 224] has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of

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determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law."

12. In view of the above decision of the

Apex Court, respondent no.3 - insurance

company is liable to first satisfy the

award and then recover the same from the

owners and drivers of the offending vehicles.

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13. The impugned order dated 11.06.2012

passed by the Tribunal is partly modified to

the aforesaid extent.

14. Respondent no.3 insurance company is