Gujarat High Court
Oriental Insurance Company Ltd vs Bhailalbhai Mangalbhai Khant on 1 December, 2023
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C/FA/3691/2011 JUDGMENT DATED: 01/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3691 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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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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ORIENTAL INSURANCE COMPANY LTD
Versus
BHAILALBHAI MANGALBHAI KHANT & 5 other(s)
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MR PARESH M DARJI(3700) for the Defendant(s) No. 1,2,3,4
RULE NOT RECD BACK for the Defendant(s) No. 5,6
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 01/12/2023
ORAL JUDGMENT
1. This appeal is filed under Section 173 of the Motor Vehicles
Act (for short "the Act") by the Insurance Co., challenging the
judgment and award dated 23.06.2011 passed by the Motor
Accident Claims Tribunal (Main), Kheda at Nadiad, in MACP
No.1725 of 1997, directing the appellant - Insurance Co. to pay
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the to the claimants the amount of Rs.4,19,000/- as compensation
with running interest @ 7.5% p.a. from the date of filing of the said
petition till deposit with the Tribunal with proportionate cost
thereon. Apart from the issue of negligence and computation of the
compensation, the Tribunal has while examining the issue of
liability qua the Insurance Co., has examined the certificate of
insurance policy produced by the original claimants vide Exhibit 42
to hold the Insurance Co. liable along with the opponents; driver
and the owner of the offending vehicle jointly and severally to pay
the compensation to the claimants.
2. From the perusal of the impugned judgment and award, the
facts as narrated about occurrence of the accident goes to suggest
that the accident occurred on 02.09.1997 when the deceased
Fuliben Jayantilal Khant was travelling in trolley bearing
registration No.GRQ-8751, which was attached with the tractor
bearing registration No.GRM-7978.The deceased was coming
back to Ranjitpura and when had reached village Samantpur,
because of excessive speed of the tractor, she fell down from the
trolley and wheel of the tractor had crushed over head causing
death of Fuliben on the spot.
3. It transpires from the record that the claimants are heirs and
legal representatives of the deceased, who was aged around 30
years at the time of accident. The claim petition was preferred by
the said heirs under Section 166 of the Act on 29.09.1997 before
the learned Motor Accident Claims Tribunal, District Court Kheda
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at Nadiad, seeking compensation of the amount of Rs.5 Lakhs.
The claim petition was registered as MACP No.1725 of 1997.
Though the summons were served, the opponent No.1, who was
driver of the vehicle and the opponent No.2, who was owner of the
offending vehicle, have chosen not to appear before the Tribunal
and have neither filed their written statement. The opponent No.3
Insurance Co. had contested the claim petition by filing written
statement vide Exhibit 21. It was specifically contended by the
Insurance Co. that there was no sitting capacity in trolley and in
fact, the tractor trolley was required to be treated as goods
carrying vehicle and thus, the deceased was travelling in the said
vehicle as gratuitous passenger. By raising aforesaid contention, it
was submitted by the Insurance Co. that there was breach of
terms and conditions of the policy and the risk of person travelling
in the tractor was not covered by the policy. However, the Tribunal
while examining the aforesaid contention of the Insurance Co.,
upon appreciation of insurance policy arrived at finding that having
accepted the liability of the passengers, the Insurance Co. cannot
be permitted to contend that the tractor was goods vehicle. Since
the trolley was also insured with the tractor, the Insurance Co. was
jointly and severally held liable to pay the compensation to the
claimants.
4. Being aggrieved and dissatisfied with the aforesaid judgment
and award passed by the Tribunal, the Insurance Co. has
approached by filing this appeal under Section 173 of the Act. This
Court by order dated 25.01.2012 has admitted the appeal. Record
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and proceedings though called for have not been received by this
Court.
5. Learned advocate for the respective parties have assisted
this Court by placing on record copy of the insurance policy and
has concluded their arguments.
6. Learned advocate Mr. R.G. Dwivedi has appeared on behalf
of the appellant - Insurance Co. and has mainly disputed the
observations of the learned Tribunal, while holding the appellant
Insurance Co. jointly and severally liable. According to him, the
learned Tribunal committed serious error in holding the Insurance
Co. liable without appreciating the basic contention raised by the
appellant - Insurance Co. that the tractor trailer did not have sitting
capacity except for the driver. The attention of this Court was
invited to the copy of the policy, which is placed on record before
this Court. Learned advocate has also referred to the grounds
raised in the appeal. He contended that the cogent evidence has
been brought on record by the Insurance Co. Reference was made
to evidence of Babubhai Ambalal Parmar (Exhibit 55), who is
officer attached with the RTO office, Nadiad, wherein it has
specifically emerged on record that the tractor trailer did not have
sitting capacity except for driver. The reliance was also placed on
the evidence of Bhailalbhai M. Khant (Exhibit 63), who is Assistant
Manager of Nadiad Divisional Office of the the appellant -
Insurance Co. to contend that the policy issued by the appellant
Insurance Co. was "Act Policy" and the risk of the passenger was
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not covered by the policy. By referring to the aforesaid evidence,
learned advocate contended that the aforesaid issue has been
ignored by the Tribunal and without assigning any reason, the
learned Tribunal has erroneously proceeded to hold the appellant
- Insurance Co. liable to pay the compensation.
7. On the other hand, Mr. Paresh Darji, learned advocate for
the original claimants has objected the aforesaid submissions
made by the learned advocate on record for the appellant -
Insurance Co. Copy of the policy which is placed on record for
consideration, was referred to and relied upon by the learned
advocate for the original claimants to submit that the schedule of
premium goes to indicate that the liability of paid driver / workman
was covered and therefore, submitted that the Tribunal having
appreciated the evidence of the officer attached with the Insurance
Co. has rightly arrived at the conclusion that the Insurance Co.
was wrong in contending that the tractor was goods vehicle.
According to him, the trolley was also insured along with tractor
and the date of accident being covered, the Insurance co. has
rightly been held liable to pay the compensation.
8. In support of his submission, learned advocate has relied
upon the decision of the Coordinate Bench in First Appeal No.
2668 of 2019 dated 29.09.2023, while reversing the judgment of
the Tribunal exonerated the Insurance Co. This Court by referring
to Rule 122 of the Motor Vehicles Rules, 1989 held that the sitting
capacity would have no bearing to the policy, which otherwise
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permits the person to drive any goods vehicle. He therefore, urged
this Court that no ground is made out calling for any interference of
this Court in the present appeal and prayed for dismissal of the
present appeal.
9. Learned advocates appearing for the respective parties have
mainly canvassed their arguments on the limited issue of liability of
the Insurance Co. to pay the compensation to the claimants. No
further grounds have been urged in respect of impugned judgment
and award passed by the Tribunal.
10. I have heard learned advocates for the appellant Insurance
Co. and original claimants and have perused the material
documents i.e. policy Exhibit 42, which is made available on record
by the learned advocate for the original claimants. Record goes to
indicate that in Civil Application seeking stay filed by the appellant
- Insurance Co. in present First Appeal, this Court by order dated
25.01.2012 had issued Rule and ad interim relief was granted in
terms of para 6(i) on condition that the appellant - Insurance was
directed to deposit the entire decretal amount before the Tribunal
which was to be followed by the order of disbursement. Later on by
order dated 12.03.2012, entire award amount was directed to be
deposited in Fixed Deposit Receipt in the name of Nazir of the
Tribunal with Nationalized Bank for a period of one year and was
further directed to be renewed till disposal of the appeal. At the
same time, the Court had permitted withdrawal of interest accrued
on such deposit to be paid to the claimants. In view of limited
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arguments canvassed by the learned advocates appearing for the
respective parties, this Court is called upon in present appeal to
examine as to whether learned Tribunal committed any error while
deciding the issue of liability qua the appellant - Insurance Co.
ANALYSIS:
11. At the outset, it would be germane to mention that there is no
necessity to deal with the quantum of compensation, particularly,
when the owner of vehicle has chosen not to appear before this
Court neither the original claimants have approached in appeal
against the quantum of compensation awarded by the Tribunal.
Learned advocates for the respective parties have mainly
addressed on the issue of liability of the appellant - Insurance Co.
Indisputably, the deceased was sitting in trolley attached with the
tractor. The Insurance Co. has taken specific stand before the
Tribunal that the policy was "Act Policy" only and as per the policy,
the deceased being not driver of the vehicle at the time of accident
and there being no sitting capacity, except for the driver in the said
offending vehicle, the appellant Insurance Co. could not be
fastened with the liability. This Court is called upon to re-
appreciate the evidence, more particularly, the terms and
conditions of the insurance policy Exhibit 42.
12. At this stage, it would be germane to revisit the observations
of the learned Tribunal, while examining the aforesaid issue of
liability. The same reads thus:
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"12. The insurance policy is silent as to whether the trolly
was permitted to carry the passengers or not? However, on
the short facts and on the short deposition, the insurance
company officer himself has stated that the premium for the
vehicle i.e. the tractor included the risk of the driver /
workman. In this case, in column of legal liability, the liability
of passenger is also accepted. Therefore, as per policy
produced, the Insurance company cannot plead that the
tractor was goods vehicle. Further as the trolly is also
insured along with it, the liability of the owner / driver is
there. The driver has not led any claim. The deceased was
non tort-feasor and the insurance company cannot escape
from liability. Therefore, the opponent No.1 being driver,
opponent No.2 being owner and the opponent No.3 being
insurance company are jointly and severally liable to pay
compensation to the claimants. Hence, answer issue No.2
accordingly in the affirmative."
13. The Tribunal upon appreciation of deposition of the officer of
the Insurance Co., who had deposed that the premium of vehicle
i.e. the tractor included risk of driver / workman, arrived at
conclusion that the Insurance Co. could not plead that the tractor
was goods vehicle, having accepted the premium as reflected in
column of legal liability of the aforesaid policy. The Tribunal further
noticed that the trolley was also insured and hence, the deceased
being non tort-feasor, the Insurance Co. cannot escape from the
liability. On perusal of the column of legal liability under the head of
schedule of premium reflected in certificate-cum-policy Exhibit 42,
the additional premium is accepted by the Insurance Co. towards
the liability for paid driver / workmen No.1 whereas against
separate head of legal liability to passenger, no premium has been
accepted. In the opinion of this Court, there was no acceptance of
additional premium towards liability to passenger is concerned.
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Thus, the findings of the Tribunal to the extent of liability of
passenger being accepted is erroneous. Thus, the policy does not
cover risk of passenger.
14. The neat question arises for consideration is whether the
Insurance Co. has proved that the tractor trolley was a goods
carrying vehicle and the deceased was gratuitous passenger to
avoid their liability to pay compensation. Having considered the
terms and conditions of the policy as reflected from the schedule of
premium, the policy in question cannot be termed as "Act Policy",
having noticed the payment of additional premium by the owner of
vehicle. In such circumstances, the issue arises for consideration
of this Court is whether the said policy intends to cover the risk to
life or damage to the property of the third party and would cover for
that the injury to the gratuitous passenger carried in the said
vehicle.
15. Learned advocate for the respondents - claimants has
placed reliance upon the decision of the Coordinate Bench in the
case of Kalavatiben Motisinh Divera Vs. Kamal Singh Chandrasinh
Parmar (First Appeal No.2668 of 2019 order dated 29.09.2023).
According to the claimants, the deceased was travelling and was
sitting in the trolley attached along with tractor. Thus, the vehicle
was used for travelling purpose, the limitation prescribed under the
policy specifically mentions that the vehicle can be used only
under a public carrying permit within the Motor Vehicles Act, 1988.
It further clarifies that the policy does not cover use of vehicle for
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hire or reward organized racing speed testing. The aforesaid
limitations endorsed in the certificate cum policy schedule (Exhibit
42), mentions that the owner of the vehicle could not permit other
person except one workman / paid driver to sit in the said vehicle.
In the judgment relied upon by the learned advocate for the
respondents claimants, this Court has taken into consideration
Rule 122 of the Motor Vehicle Rules, 1989, which deals with
capacity of carrying persons in goods carriage. It would be
germane to refer to the aforesaid Rule 122, which is produced as
under:
"122. Carriage of persons in goods carriages.-
(1) Subject to the provisions of this rule, no person shall
be carried in a goods carriage:
"Provided that the owner or the hirer or a bonafide
employee of the owner or the hirer of the vehicle carried
free of charge, or a police officer in uniform, traveling on
duty, may be carried in a goods carriage:
Provided further that the total number of persons so
carried shall not be more than -
(i) one, in case of a light motor vehicle having gross
vehicle weight less than 900 kilograms;
(ii) three, in case of any other light motor vehicle;
(iii) five, in case of any medium goods vehicle;
(iv) seven, in case of any heavy goods vehicle.
Provided further that the provision of second proviso to
this sub-rule shall not apply in case where integral seating
arrangements providing a reasonably comfortable seating
space for each person has been made in the goods
carriage for more than the number specified in the second
proviso.
(2) ....
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(3) ....
(4) ....
(5) ....
(6) No person shall travel in a goods carriage in
contravention of the provisions of this rule."
The Coordinate Bench upon appreciation of the aforesaid
Rule has observed as under:
"16. The above Rule specifies that no person can be carried
in the goods carriage, provided the owner or hirer or
bonafide employee of the owner or hirer of the vehicle,
carried free of charge. Even the Rule permits the police
officer in uniform travelling on duty to be carried in goods
vehicle. Thus, the Rule permits a bonafide employee of the
owner to travel on the goods carriage. The 1 st proviso to
sub-Rule (1) therefore, does not deal with any seating
capacity. The 2nd proviso deals with permissibly of total
number of persons to be carried in the vehicles as noted.
Further, the proviso to the sub-Rule shows that it would not
be applicable in case where integral seating arrangements
providing a reasonable comfortable seating space for each
person has been made in the goods carriage for more than
the number specified in the second proviso. In view of the
proviso made in Rule 122, the sitting capacity would have
no bearing to the Policy placed on record as the Rules
permits the persons to travel in a good vehicle. As noted,
the deceased was a bonafide employee of the owner and
he was sitting beside the driver in the tractor.
17. In view of the same and to the reasons given above,
the observations of the learned Tribunal exonerating the
Insurance Company would become erroneous on the face
of the record in light of provisions of Rule 122 of the Gujarat
Motor Vehicle Rules, 1989. Thus, this Court is of the view
that the Insurance Company would be liable to pay the
compensation amount."
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16. In light of aforesaid observations, the proviso under Rule 122
goes to indicate that the eventualities whereby it permits the
person to travel in the goods vehicle. It is in case of such
eventualities only the aforesaid provisions would come into play.
However, in the facts of the present case, no evidence has been
led on record by the original claimants to prove the fact that the
deceased was engaged as labourer or bona fide employee of the
owner or hirer of the vehicle. In the judgment relied upon by the
learned advocate for the original claimants, the facts of the said
case indicates that the deceased was bona fide employee of the
owner and he was sitting besides the driver in tractor whereas in
the present case, indisputably, the deceased had boarded the
trolley attached with the tractor as passenger. That being the case,
the Tribunal committed error in awarding compensation by holding
the appellant Insurance Co. liable for payment of the same.
However, the deceased being third party, in the opinion of this
Court, the appellant Insurance Co. is statutorily liable to pay
compensation to the respondents - claimants.
17. The Hon'ble Supreme court in the case of Manuara Khatun
Vs. Rajesh Kr. Singh reported in (2017) 4 SCC 96, while
considering the case of gratuitous passenger held that the
claimants are entitled for an order against the Insurer of the
offending vehicle, i.e., (respondent No. 3) to pay the awarded sum
to the claimants and then to recover the said amount from the
insured in the same proceedings. The relevant observations are as
under:
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"16. This question also fell for consideration recently in
Manager, National Insurance Company Limited vs. Saju
P. Paul & Anr., (supra) wherein this Court took note of
entire previous case law on the subject mentioned above
and examined the question in the context of Section 147
of the Act. While allowing the appeal filed by the
Insurance Company by reversing the judgment of the
High Court, it was held on facts that since the victim was
travelling in offending vehicle as "gratuitous passenger"
and hence, the Insurance Company cannot be held liable
to suffer the liability arising out of accident on the strength
of the insurance policy. However, this Court keeping in
view the benevolent object of the Act and other relevant
factors arising in the case, issued the directions against
the Insurance Company to pay the awarded sum to the
claimants and then to recover the said sum from the
insured in the same proceedings by applying the principle
of "pay and recover".
18. Having held so, I am of the view that the Insurance Co. as
per the terms and conditions of policy was bound to indemnify the
insurer against the liability incurred towards the third person or in
respect of damages to the property as well as towards liability of
paid driver / workmen in view of additional premium paid by the
owner of the vehicle. The deceased had travelled as passenger
and does not fall in either of these categories of paid driver /
workmen. However, the deceased being third party and
considering the benevolent Legislative to cover the risk of third
parties, the Insurance Co. is directed to pay the compensation to
the original claimants with a liberty to prefer Execution Petition for
recovery of the aforesaid amount from the owner of the vehicle.
The documentary evidence clearly indicates that the driver of the
tractor has violated the terms and conditions of the policy by
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unauthorizedly permitting the deceased to travel on trailer as
passenger.
19. The amount, which is lying in the Fixed Deposit Receipt in
the name of Nazir of the concerned Tribunal is hereby directed to
be released in the name of the original claimants, which may be
paid after due verification as per guidelines of the Hon'ble
Supreme Court. The interest as accrued upon the aforesaid Fixed
Deposit Receipts is also permitted to be withdrawn by the original
claimants. The impugned judgment and award passed by the
learned Tribunal stands modified accordingly. The First Appeal is
allowed in aforesaid terms.
(NISHA M. THAKORE,J)
Y.N. VYAS
