New India Assurance Co. Ltd vs Mahmadbhai Umarbhai Kaliya Since ...
2023 Latest Caselaw 2027 Guj

     C/FA/3934/2007                               JUDGMENT DATED: 03/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3934 of 2007


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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                 NEW INDIA ASSURANCE CO. LTD.
                             Versus
     MAHMADBHAI UMARBHAI KALIYA SINCE DECD. THRO' HEIRS & 3
                            other(s)
==========================================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR PANKAJ R DESAI(3120) for the Defendant(s) No. 1.2,1.3
NOTICE ISSUED BY GOVT. GAZETTE for the Defendant(s) No. 1.1,2,3,4
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    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                              Date : 03/03/2023

                             ORAL JUDGMENT

1. The Insurance company as appellant has filed this captioned appeal under section 173 of the Motor Vehicles Act 1988 ("the Act" for short), challenging the judgement and award dated 14.05.2007, passed by learned Joint District Judge

C/FA/3934/2007 JUDGMENT DATED: 03/03/2023

and Motor Accident Claims Tribunal (Auxiliary), 2nd Fast Track Court, Amreli in Motor Accident Claim Petition No.10 of 2006, whereby a sum of Rs.3,11,000/- has been awarded with running interest at the rate of 7.5% per annum from the date of the claim petition till realisation, with proportionate costs. The Tribunal held Opponent No.1 (driver of rickshaw), Opponent No.3 (Insurance company) and Opponent No.4- (owner as per RC book) jointly and severally liable for payment of aforesaid compensation and also directed insurance company to pay and recover.

2. Following facts emerge from the record of the appeal:

That the parents and wife of the deceased filed a claim petition seeking compensation of Rs.5,00,000/- with running interest at the rate of 15% per annum from the date of accident till its realisation, for untimately death of Mahmadbhai Umarbhai Kaliya (the deceased ) in the vehicular accident, occurred on 02.09.2005 on Dhari-Sarasiya Road, Near Khokhara Mahadev Temple, District: Amreli. It was case of the original claimants that the deceased was travelling in the goods rickshaw possessed by opponent No.2. For bringing the raw materials of grocery the deceased hired the services of the said rickshaw. It was further the case that original opponent No.1- driver was driving the vehicle in a rash and negligent manner and on account of his sole negligence, accident occurred. For

C/FA/3934/2007 JUDGMENT DATED: 03/03/2023

the said accident, FIR was lodged. The deceased was 32 years of age at the time of accident and if he would have survived he would have earned much higher. Original claimants therefore filed claim petition under section 166 of the Act before Motor Accident Claims Tribunal, Amreli being Motor Accident Claim Petition No.10 of 2006, seeking compensation of Rs.5,00,000/- with running interest at the rate of 15% per annum from the date of accident till its realisation. The Tribunal after hearing parties and upon appreciating oral and documentary evidence, allowed the claim petition of the original claimants in part and awarded compensation of Rs.3,11,000/- with interest at the rate of 7.5% p.a. from the date of claim petition till its realisation. In relation to negligence the tribunal held the driver of rickshow as sole negligent for occurrence of the accident.

3. Against the said judgement and award dated 14.05.2007, insurance company as appellant has preferred present appeal questioning the liability fastened on it.

4. Heard learned advocate Mr.H.G.Mazmudar for the appellant - Insurance company and Mr.P.R.Desai for the respondents - original claimants. The record and proceedings have been secured and placed before this court for perusal.

C/FA/3934/2007 JUDGMENT DATED: 03/03/2023

5. Mr.H.G.Mazmudar, learned advocate for the appellant referring to the judgement and award dated 14.05.2007, submitted that as contended before the tribunal the deceased, on the date of accident was travelling as unauthorised passenger and therefore, insurance company is not liable for any compensation as awarded. Referring to written submissions at Exh-22, he submitted that before the Tribunal it was case of the insurance company that the deceased was travelling as unauthorised passenger and therefore no liability ought to have been fastened on the appellant. He submitted that the tribunal erred in not considering the said issue and no findings were recorded by the tribunal in relation to the status or capacity of the deceased. Further, the tribunal also erred in directing the appellant insurance company to pay and permitting to recover and therefore, judgement and award being erroneous, deserves to be quashed and set aside.

6. On the other hand, Mr.P.R.Desai, learned advocate for the respondents - original claimants supported the judgement and award of the tribunal and submitted that there being no error in judgement and award dated 14.05.2007, no interference is called for . However, he could not dispute the fact that no findings were recorded by the tribunal in relation

C/FA/3934/2007 JUDGMENT DATED: 03/03/2023

to the status of deceased or his capacity while he was travelling in a goods rickshow.

7. Having heard learned advocates appearing for the respective parties and upon perusal of record and proceedings, it is noticed that before the Tribunal, appellant - insurance company had filed written submissions questioning its liability on the ground that the deceased being unauthorised passenger travelling in the goods rickshaw, was not entitled for the compensation as claimed. Exh-22 is the written submissions filed by the appellant - insurance company, wherein, it was submitted that the vehicle involved in the accident was goods delivery vehicle and in that vehicle, no passenger is allowed to sit and in the present case, the deceased being unauthorised passenger, was not entitled for compensation, as claimed. Reference of RC book was made by insurance company to support the case.

8. Upon perusal of the judgement and award dated 14.05.2007, it is noticed that no findings are recorded by the tribunal in relation to status or capacity of the deceased as passenger. Therefore, in my opinion it would be appropriate to remand the claim petition before tribunal for findings on the status of the deceased as passenger.

C/FA/3934/2007 JUDGMENT DATED: 03/03/2023

9. In view of the above, the matter is remanded to the Tribunal for giving finding on the status or capacity of the deceased as passenger. Therefore, following order is passed:

(i) The appeal of the appellant is disposed of as remanded, only on the issue to decide the status of the deceased.

(ii) Both the parties are at liberty to lead evidence, if any, before the Tribunal to decide the above issue;

(ii) Amount, if any, disbursed to the original claimants, shall not be recovered;

(iii) It is needless to say that final liability shall be decided upon adjudication;

(iv) The amount, which is already deposited, shall remain with the registry, as directed earlier;

No order as to costs.

sd/-

(MAUNA M. BHATT,J)

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