Gujarat High Court
The United India Insurance ... vs Kantibhai Gordhanbhai Siddhpura on 28 August, 2023
Bench: Mauna M. Bhatt
NEUTRAL CITATION
C/FA/1716/2011 JUDGMENT DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1716 of 2011
With
R/FIRST APPEAL NO. 1717 of 2011
With
R/FIRST APPEAL NO. 1718 of 2011
With
R/FIRST APPEAL NO. 1719 of 2011
With
R/FIRST APPEAL NO. 1722 of 2011
FOR APPROVAL AND SIGNATURE:
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 ?
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THE UNITED INDIA INSURANCE COMPANY LTD., RAJKOT
Versus
KANTIBHAI GORDHANBHAI SIDDHPURA & 1 other(s)
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Appearance:
MS MASUMI NANAVATY, LD.ADVOCATE FOR MR VIBHUTI NANAVATI(513)
for the Appellant(s) No. 1
NOTICE ISSUED BY GOVT. GAZETTE for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 28/08/2023
ORAL JUDGMENT
NEUTRAL CITATION
C/FA/1716/2011 JUDGMENT DATED: 28/08/2023
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1. Insurance Company as Appellant has filed these appeals
under Section 173 of the Motor Vehicles Act, 1988 ("the Act"
for short), challenging the judgment and award dated
22.02.2011, passed by the Motor Accidents Claims Tribunal
(Aux.), Gondal at Jetpur, details of which are as under:
First Appeal MACP No. Date of Amount of Amount of
No. Judgement compensation compensation
and Award claimed awarded
(Rs.) (Rs.)
1716/2011 159/2000 22.02.2022 3,00,000/- 2,01,300/-
1717/2011 160/2000 22.02.2022 3,00,000/- 2,46,200/-
1718/2011 161/2000 22.02.2022 3,00,000/- 1,62,600/-
1719/2011 163/2000 22.02.2022 10,00,000/- 2,92,500/-
1722/2011 177/2000 22.02.2022 10,00,000/- 3,10,500/-
2. In each claim petitions, the tribunal awarded
compensation as referred in the table above, with interest @
9%, from date of filing of claim petition till realisation. The
Tribunal further directed the Insurance Company to pay the
compensation as awarded in each claim petitions and then
permitted to recover from the owner of the vehicle.
3. Since all these appeals are arising out of same accident,
and decided by the Tribunal on the same day, with the
consent of the learned advocates for respective parties, they
are heard and decided together.
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C/FA/1716/2011 JUDGMENT DATED: 28/08/2023
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4. The facts, in brief, are as under:
For the accident, which took place on 17.01.2000 with
Chakdo rickshaw, separate claim petitions were filed by each
claimants, under section 166 of the Motor Vehicles Act ("The
Act" for short), seeking compensation as referred in the table
above. It was the claimants' case before the Tribunal that
they were travelling in chakdo rickshaw on 17.01.2000
carrying goods. They met with the accident, because rickshaw
turned turtle. For the said accident, all the claimants sustained
injuries as referred in their respective claim petitions.
Upon filing of claim petitions notices were issued, the
appellant Insurance Company and owner of chakdo rickshaw
(original opponent no.1) appeared and filed their written
statement. The Tribunal after hearing the parties and upon
appreciation of evidences allowed the claim petitions in part,
directing the Insurance Company to pay the compensation as
directed in each claim petitions, and permitted recovery
thereafter from owner of the vehicle. Aggrieved by the
liability fasten on the insurance Company, these appeals are
filed.
5. Heard Ms.Masumi Nanavaty , learned advocate for the
appellant - The United India Insurance Company Limited.
Despite service of Notice, none appeared for the respondents
(original claimants and owner of the vehicle).
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C/FA/1716/2011 JUDGMENT DATED: 28/08/2023
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6. Learned advocate for the appellant- insurance company
submitted that the vehicle insured with the appellant-
insurance company was goods vehicle and all the claimants
were travelling in the chakdo rickshaw as unauthorized
passengers, which is evident from FIR at Exh-32 and
Panchnama at Exh-33. In FIR and Panchnama, it is recorded
that goods was neither found in any parts of the vehicle nor at
the place of incident. Moreover, in the cross-examination, all
the claimants have stated that they sustained injuries as the
rickshaw turned turtle when they were travelling at night after
attending one religious ceremony and therefore, the findings
recorded by the Tribunal that all the passengers are
unauthorised, is correct. However, the Tribunal fasten the
liability on the appellant- Insurance Company, by directing to
pay first and thereafter, permitted to recover from the owner
of the vehicle. The directions to pay and recover are
erroneous. The tribunal erred in fastening the liability on the
insurance company. She submitted that none of the claimants
have appeared, despite service of Notice. Further, since all the
claimants were travelling as unauthorised passenger, they are
not entitled for any compensation, as awarded.
In support of her submissions, she relied upon the
decision of the Hon'ble Supreme Court in the case of Balu
Krishna Chavan Versus Reliance General Insurance Company
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C/FA/1716/2011 JUDGMENT DATED: 28/08/2023
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Ltd. & Ors., that when the insurance company is not liable to
pay the compensation, the directions of pay and recovery are
erroneous. Further, the Tribunal is not empowered to direct
pay and recovery. She relied upon the decision dated
15.07.2022 of this Court in the case of National Insurance
Company Vs. Laxmiben Ramanbhai Patel & others in First
Appeal No.1278 of 2010.
7. Considered the submissions. It is noticed that the
Tribunal upon appreciation of evidence, particularly FIR at
Exh-32 and Panchnama at Exh-33 had observed that goods
were not found from the vehicle or from the place of accident.
Moreover, in the cross-examination, the claimants had
admitted that while returning after attending one religious
ceremony, the chakdo rickshaw, turned turtle resulted into an
accident. The claimants were not travelling with any goods.
Therefore, the finding recorded by the Tribunal that the
passengers were travelling in the goods vehicle as unauthorised
passengers, is correct. In the case of Balu Krishna Chavan
Versus Reliance General Insurance Company Ltd. & Ors., the
Hon'ble Supreme Court has held 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
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C/FA/1716/2011 JUDGMENT DATED: 28/08/2023
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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.
[9] In the instant case, the appellant has relied on
the judgment dated 21.02.2017 passed by this Court
in Civil Appeal No(s).3047 of 2017 titled as
"Manuara Khatun & Ors. Vs. Rajesh Kr. Singh &
Ors". In the said case also, a Bench of this Court,
having referred to the earlier decisions in Para-15
and 16 of that Judgment, has concluded that
normally, there would be no order to "pay and
recover". However, in the said facts, this Court, to
meet the ends of justice, had taken into
consideration the fact situation though, the claimant
therein, was a 'gratuitous passenger' and had kept in
view that the benevolent object of the Act and had
directed the payment by the Insurance Company
and to recover the amount.
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[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."
8. Moreover, in the decision dated 15.07.2022 of this Court
in the case of National Insurance Company Vs. Laxmiben
Ramanbhai Patel & others in First Appeal No.1278 of 2010,
particularly in para-10, this Court has held as under:
"10. Hence, considering the aforesaid proposition of
law laid down by this Court, the Insurance
Company cannot be statutorily held responsible for
liability which arose pursuant to the accident and as
such, a case is made out by the appellant -
Insurance Company. Hence, on consideration of the
entire material on record, the award under
challenge deserves to be modified. At this stage, it
is also worth to be taken note of the principle of
'pay and recover' which is tried to be insisted upon
by the learned advocate representing the opponents,
but it appears that the Hon'ble Apex Court in
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exercise of jurisdiction under Article 142 of the
Constitution of India has passed such order which
discretion is not available to this Court and as such,
the said submission made by learned advocate
appearing for the opponents is not possible to be
considered by this Court. Yet another observations
of co-ordinate Bench of this Court is also not
possible to be unnoticed which is contained in order
dated 20.01.2012 rendered in First Appeal 543 of
1992 and the Court deems it proper to reproduce
the said observation since the same is also passed
upon the decision delivered by the Hon'ble Supreme
Court. Hence, the Court deems it proper to quote
hereunder: -
"Going through those two decisions, I find
that the Supreme Court, in those two cases,
passed the direction for payment in exercise of
powers conferred on it under Article 142 of
the Constitution of India. Therefore, in my
opinion, the discretion exercised by the
Supreme Court by taking aid of Article 142 of
the Constitution of India not being available to
this Court, the learned Single Judge was not
justified in passing such direction and the said
decision of the learned Single Judge cannot be
held to be a good law."
9. When all the original claimants were travelling as
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C/FA/1716/2011 JUDGMENT DATED: 28/08/2023
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unauthorised passengers in goods vehicle, in opinion of this
court, the liability fasten on the insurance company is
erroneous. Therefore, the consequent directions by the Tribunal
in the award dated 22.02.2011, in all the claim petitions to
pay the amount of compensation as directed, to the original
claimants and then to recover from owner of the vehicle is
also erroneous and deserves to be quashed and set aside.
Moreover, this Court cannot ignore the fact that though
served, the owner as well as the claimants have chosen not to
appear before this Court. Therefore, considering the decisions
of the Hon'ble Supreme Court as well as facts of these cases,
this Court deems it appropriate to quash and set aside the
directions issued by the Tribunal under judgement and award
dated 22.02.2011, directing the appellant - insurance company
to pay to the claimants and thereafter to recover from the
owner of the vehicle.
10. Considering the fact as submitted by learned advocate for
the appellant that the compensation awarded by the Tribunal
under judgement and award dated 22.02.2011 is deposited
before the Tribunal and pursuant to the directions, it has been
put in Fixed Deposit, following order is passed:
(i) All these appeals (First Appeal Nos.1716, 1717,
1718, 1719 and 1722 of 2011) filed by the
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Appellant - insurance company are allowed.
(ii) The judgment and award dated 22.02.2011, passed
by the Motor Accidents Claims Tribunal (Aux.),
Gondal at Jetpur in MACP Nos. 159/2000,
160/2000, 161/2000, 163/2000 and 177/2000 are
quashed and set aside.
(iii) The amount, which has been lying with the
Tribunal in Fixed Deposit, is directed to be refunded
to the appellant- Insurance Company within a
period of eight weeks from the date of receipt of
the order.
(iv) In the interest of justice, it would be open for the
original claimants to recover the amount from
owner of the vehicle.
(v) 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/-
(MAUNA M. BHATT,J)
DIPTI PATEL.
