The New India Assurance ... vs Sitaben Kehrabhai Angari
2023 Latest Caselaw 4938 Guj

     C/FA/1573/2007                               JUDGMENT DATED: 27/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1573 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 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 ?

==========================================================
    THE NEW INDIA ASSURANCE CO.LTDPALANPUR, THROUGH LEGAL
                             CELL
                             Versus
               SITABEN KEHRABHAI ANGARI & 4 other(s)
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3,4,5
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                              Date : 27/06/2023

                             ORAL JUDGMENT

1. The appellant - original opponent No.2 has

preferred this appeal under section 173 of the Motor

C/FA/1573/2007 JUDGMENT DATED: 27/06/2023

Vehicles Act 1988 (hereinafter referred to as "the Act") being

aggrieved and dissatisfied by the judgment and award dated

13.10.2006 passed by learned Motor Accident Claims

Tribunal (Aux.), Banaskantha @ Palanpur in Motor Accident

Claims Petition No.219 of 1997.

2. The brief facts of the case that emerge from the

record of the appeal are as under.

2.1 That on 15.10.1996 deceased Ditabhai Kehrabhai

Angari was travelling in Jeep bearing registration No.GUZ

6975 along with his son from Danta to Hadad. At that time,

as the driver - original opponent No.1 suddenly applied the

brakes, deceased Ditabhai Kehtabhai Angari fell down on

the road and sustained serious injuries and died on the

spot. The offence was registered at Panchkoshi "B" Division

Police Station, Jamnagar being CR No. I - 161 of 2000.

3. The claimants i.e. wife, children and mother of

deceased Ditabhai preferred the claim petition mainly

contending that they had lost their bread earner and the

C/FA/1573/2007 JUDGMENT DATED: 27/06/2023

deceased was doing agricultural work and was earning

Rs.10,000/- per month. That the claimants have spent a

huge amount for funeral and last rites of the deceased but

due to his sad demise, they have lost their source of income

and hence, the claimants have claimed compensation of

Rs.4,00,000/- jointly and severally from the opponents.

4. The appellant - insurance company appeared

before the learned Tribunal and after the evidence was

recorded, the learned Tribunal was pleased to award an

amount of Rs.3,65,100/- to the claimants as compensation

by a judgment and award dated 13.10.2006.

5. Being aggrieved and dissatisfied with the said

judgment and award, the appellant - original opponent No.2

has preferred the present appeal mainly contending that the

learned Tribunal has failed to appreciate the evidence

produced at Exh.58 - policy of insurance and its terms and

conditions. That the learned Tribunal has failed to

appreciate that the owner of the jeep - insured has not paid

any additional premium towards coverage of passengers

C/FA/1573/2007 JUDGMENT DATED: 27/06/2023

travelling in the insured jeep. That the insurance policy

covering the risk of the jeep which was to be used as private

car and the insurance company has issued "Act Only" policy

and under the "Act Only) policy, the risk cover to the

passengers is not automatic.

6. I have heard Mr.Vibhuti Nanavati, learned

advocate for the appellant. Though served, none appears

for the respondents.

7. Mr.Nanavati, learned advocate for the appellant

has submitted that the insurance policy at Exh.58 is only

"Act Only Policy" and therefore, the same would not cover

the risk of the occupants. Relying upon the judgment of the

learned Single Judge of this Court in First Appeal No.505 of

2015 as well as the judgment of the Division Bench in First

Appeal No.3735 of 2009 dated 9.12.2021 and common

judgment of the Division Bench rendered in First Appeal

No.2209 of 2010 dated 16.2.2022, Mr. Nanavati contended

that as it is an "Act Only Policy", the appellant - insurance

C/FA/1573/2007 JUDGMENT DATED: 27/06/2023

Company deserves to be exonerated and the claim as

granted by this Court is required to be refunded to the

appellant insurance company. Referring to Section 147 of

the Act as it existed on the date of the accident, Mr.

Nanavati contended that the Motor Vehicles Act, 1988 came

into force from 22.5.1989 and the accident occurred on

15.10.1996, wherein Section 147 provides for "requirements

of policies and limits of liability". Referring to the policy at

Exh.58, Mr. Nanavati contended that as it is an "Act Only

Policy", the liability of the appellant insurer is only limited

to third parties. It was further contended that as per the

registration of the jeep involved in the accident bearing

registration No. GUZ 6975, the same was not a public

service vehicle, but was registered as private vehicle and in

such event, as per the provisions of Section 147 of the Act,

the risk of the occupants as per the policy at Exh.58 is not

covered. On the aforesaid grounds, Mr. Nanavati therefore

contended that the appellant - insurance Company deserves

to be exonerated qua its liability as determined by the

Tribunal. In support of his submissions, Mr.Nanavati has

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relied upon the decision of this Court rendered in First

Appeal No.4971 of 1999 and First Appeal No.4973 of 1999

dated 27.4.2022.

8. In the aforesaid facts therefore, the question

which now requires to be dealt with in this appeal is

whether the policy at Exh.58 is an "Act Only Policy" and

whether the same would not cover the risk of the deceased

as well as the insured and the liability of the appellant is

only limited to third party i.e. "Act Only Policy". Upon

reappreciation of the evidence at Exh.58 is concerned, the

said document was admitted in evidence by consent and is

the policy issued for a private car. It is also crystal clear that

the vehicle in question is not a public utility vehicle, but it is

a private vehicle.

9. At this juncture, it would be appropriate to refer

to the judgment relied upon by Mr.Nanavati in First Appeal

No.4971 of 1999 and First Appeal No.4973 of 1999 dated

27.4.2022, wherein this Court has considered the ratio laid

C/FA/1573/2007 JUDGMENT DATED: 27/06/2023

down by the Hon'ble Apex Court in the case of the Oriental

Insurance Company Limited Vs. Sudhakaran K.V., reported

in (2008) 7 SCC 428 wherein the Honourable Apex Court

has considered the aspect of "Act Only Policy". In view of the

matter, applying the ratio laid down in the judgment as

referred to above to case on hand also, as it is an "Act Only

Policy", the appellant - insurance Company cannot be

saddled with the liability as if it is a comprehensive policy,

hence the appellant - insurance Company is not liable to

indemnify the award as awarded by the Tribunal

10. Under the circumstances, the appeal

succeeds and the same is allowed. The appellant -

insurance Company is held not to be liable to indemnify the

award. The amount of compensation deposited by the

appellant - Insurance Company with the learned Tribunal

be refunded to the appellant - Insurance Company forthwith

by RTGS / NEFT. It is clarified that if any amount is

disbursed in favour of the claimants, the same shall not be

recovered from the claimants. However, there shall be no

C/FA/1573/2007 JUDGMENT DATED: 27/06/2023

order as to costs.

R & P be sent back forthwith.

(S. V. PINTO,J) H.M. PATHAN