Gujarat High Court

Oriental Insurance Co Ltd., Regd. ... vs Sureshbhai Shankarbhai Valand on 10 March, 2023

Bench: Ashutosh Shastri

     C/FA/2917/2010                               CAV JUDGMENT DATED: 10/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2917 of 2010


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
=============================================

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 ?

============================================= ORIENTAL INSURANCE CO LTD., REGD. OFFICE AT ORIENTAL HOUSE, Versus SURESHBHAI SHANKARBHAI VALAND & 2 other(s) ============================================= Appearance:

MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1

RULE SERVED for the Defendant(s) No. 2,3 =============================================

CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

Date : 10/03/2023

CAV JUDGMENT

1. By way of present appeal under Section 173 of the Motor

Vehicles Act, 1988, original opponent no. 3 i.e. present

appellant - The Oriental Insurance Co. Ltd., has challenged the

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legality and validity of the award passed by the Motor Accident

Claims Tribunal (Assistant) 2nd Additional Court at Modasa

dated 27.01.2010 in M.A.C.P. No. 1583 of 1997.

2. The background of the facts which has given rise to the

present appeal is that on 13.03.1997 the original claimant i.e.

opponent no. 1 herein was travelling in tractor thresher for

harvesting wheat from the agricultural field and the said tractor

was driven by opponent no. 3 herein. At about 9:00 pm in the

night, opponent no. 3 in a rash and careless manner drove the

tractor on account of which the original claimant who was

sitting beside the driver on mudguard, due to bad surface of the

road, fell down from the tractor and the wheel of the tractor has

ran over his leg and damaged the left leg of the claimant.

Initially the injured claimant was first brought to Mehgraj and

thereafter at Modasa and admitted in the clinic of Dr. Rakesh

Shah. On account of serious injuries, an operation was done and

his leg was amputated and later on after operation having been

completed, a complaint was lodged before the jurisdictional

police station on 28.03.1997. The claimant i.e. opponent no. 1

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herein since sustained serious injuries, under the multiple

heads, a claim petition was brought before the Motor Accident

Claims Tribunal (Assistant) 2nd Additional District Court, Modasa

(hereinafter referred to as the "Tribunal") under Section 166 of

the Motor Vehicles Act for claiming compensation to the extent

of Rs.4,50,000/-. The said claim was registered as MACP No.

1583 of 1997 which after due adjudication came to be disposed

of by the learned Tribunal vide judgment and award dated

27.01.2010 and directed the opponents jointly and severally to

pay Rs.1,61,800/- towards compensation with interest at the

rate of 6% and proportionate costs etc., which can be seen from

the operative part of the award. It is this judgment and award

passed by the learned Tribunal is made the subject matter of

present First Appeal by the Insurance Company, mainly on the

ground that the Insurance Company in a situation like this is not

responsible for claim of compensation. From the record, it

appears that this Court vide order dated 22.12.2010 has

admitted the First Appeal. The said order dated 22.12.2010

reads as under :

"Appeal is admitted.

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Civil Application No.11512 of 2010

Though served, none is appeared. Interim relief is granted in terms of paragraph 5 (a) on the same terms and conditions. Out of the deposited amount, 60 % shall be invested in the name of the Nazir of the Tribunal with a nationalized Bank initially for a period of three years and on maturity shall be renewed by one year at a time without any further orders in this regard till the disposal of the appeal. The Fixed Deposit Receipt shall be kept with the Nazir of the Tribunal. Whereas 40 % of the awarded amount is permitted to be withdrawn by the claimant, which will be adjusted at the time of outcome of the appeal. The periodical interest that may be accrued on the said deposit shall be paid to the original claimants. Application stands disposed of accordingly."

3. Later on, it appears that before the co-ordinate Bench, on

21.03.2016 it was observed that the present appeal be placed

after disposal of First Appeal Nos. 4601 of 2007 and 4602 of

2007 to be decided by the Division Bench of this Court and it

transpires that after disposal of the said First Appeals by the

Division Bench, present First Appeal has come up for

consideration before this Court and learned advocate Ms.

Karuna Rahevar has represented the appellant Insurance

Company whereas, Mr. B.K. Oza, has appeared on behalf of Mr.

U.M. Shastri, learned advocate appearing for the original

claimant i.e., opponent no. 1 herein.

C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023

4. Ms. Rahevar, learned advocate appearing for the appellant

- Insurance Company has vehemently contended that the

learned Tribunal while passing the order impugned has

committed serious error in law by holding liability of Insurance

Company to pay the compensation. The learned Tribunal has

failed to appreciate that the vehicle involved is a tractor which

is a goods vehicle as defined under the Act and admittedly, the

claimant was travelling undisputedly in goods vehicle and

sitting beside the driver on mudguard of the tractor which is

impermissible. It is further contended that the registration book

of the tractor indicates sitting capacity of tractor as one only

and as such, travelling in a tractor which was driven in breach

of rules and in violation of the terms and conditions of policy

itself, the Insurance Company cannot be saddled with the

liability. It has further been contended that the tractor can be

used only for the purpose of agriculture and not for allowing the

same to be driven for gratuitous passenger and here

undisputedly, in addition to the driver, the claimant was sitting

on mudguard and was travelling as gratuitous passenger.

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Learned advocate appearing for the appellant has also placed

reliance on the decision of this Court rendered in First Appeal

No. 913 of 2011 dated 23.12.20221 and has submitted that the

claimant was travelling as gratuitous passenger. Hence, the

liability of Insurance Company does not arise at all and that fact

having not been appreciated by the learned Tribunal, a gross

error is committed, which deserves to be corrected.

4.1. Learned advocate appearing for the appellant has further

contended that there is no quarrel with regard to quantum of

compensation being raised in present appeal and as such, has

not offered any submissions insofar it relates to compensation

part. Learned advocate appearing for the appellant has further

submitted that during the pendency of the present appeal, in the

month of March, 2016 it was recorded that the question of

liability of a person travelling in a tractor was being dealt with

by the Division Bench at the relevant point of time and as such,

the hearing was deferred, but then, learned advocate appearing

for the appellant has contended that the said appeals which are

referred to in previous order dated 21.03.2016 were disposed of

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by order dated 15.06.2017 in which, it was clearly held that the

Insurance Company cannot be made responsible for payment of

compensation in a situation where any passenger is travelling in

a tractor. Hence, referring to the said decision, learned

advocate appearing for the appellant has requested to allow the

present appeal. No further submissions have been made.

5. As against this, Mr. B.K. Oza, learned advocate on behalf

of Mr. U.M. Shastri, learned advocate appearing for the

contesting opponent has submitted that the learned Tribunal

while dealing with the question of compensation has not only

determined the quantum to be payable, but also specifically

gone into the aspect of liability of Insurance Company and the

record which has been examined by the learned Tribunal has

clearly indicated that the additional premium has also been

recovered by the Insurance Company and as such, by projecting

a hyper technical plea, the Insurance Company cannot evade

the liability which has been crystallized after proper

adjudication. To substantiate the stand that Insurance Company

is liable to make the payment of compensation, learned

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advocate appearing for the opponent has specifically referred to

finding with regard to the said issue referred in paragraphs 17

and 18 of the award under challenge and thereby has contended

that when third party premium has also been accepted by the

Insurance Company by raising such plea, the Insurance

Company cannot deviate itself from the liability. Hence, no case

is made out. It has further been contended that the decision of

Division Bench which has been tried to be pressed into service

is also not of any assistance to the appellant in view of the fact

that the facts are quite distinct from the said decision and as

such, if one additional fact is reflecting on the record, the ratio

laid down cannot be applied as straight-jacket formula when

facts have been examined. Hence, has submitted that the

reliance placed by the Insurance Company on the aforesaid

decision is of no assistance and appeal being meritless deserves

to be dismissed. Mr. Oza, has also relied upon the following

decisions :-

(1) In the case of S. Iyyapan v. United India Insurance

Comapny Ltd., & Anr., reported in (2013) 7 SCC 62.

(2) In the case of Chandrakant Tiwari v. New India

C/FA/2917/2010 CAV JUDGMENT DATED: 10/03/2023

Assurance Co. Ltd., & Anr., reported in (2020) 7 SCC 386.

(3) In the case of Ranjana Prakash & Ors., v. Divisional

Manager & Anr., reported in (2011) 14 SCC 639.

(4) In the case of Shivawwa & Anr., v. Branch Manager,

National Insurance Co. Ltd., & Anr., reported in 2018 ACJ

1288.

(5) In the case of New India Assurance Co. Ltd., v. Somwati

& Ors., reported in (2020) 9 SCC 644.

6. Having heard the learned advocates appearing for the

respective parties and having gone through the material on

record, few circumstance prevailing on record are not possible

to be unnoticed.

6.1. The assertion in the claim petition was to the effect that on

13.03.1997 for the purpose of harvesting wheat crop in

agricultural filed, the claimant went with a driver i.e. original

opponent no. 2 and the said tractor - thresher vehicle

belonged to opponent no. 1. At about 9:00 pm in the night, on

account of rough surface of road when break was applied, the

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claimant fell down from the tractor and the wheel of the tractor

ran over the leg of the claimant which resulted into serious

injuries to the extent of amputation of leg and as such, claim

petition was put-forth before the learned Tribunal. In between

there was a request for payment of Rs.25,000/- about no fault

liability by virtue of Section 140 of the Act which application at

Exhibit-4, came to be allowed vide order dated 08.05.2002.

6.2. On perusal of the record, it indicates that the main

defence which has been put-forth by the Insurance Company in

its written statement at Exhibit-17 reflecting on page 32 of the

record is that tractor is a goods vehicle and the same is to be

plied in consonance with the rules well as conditions contained

in the policy. No gratuitous passenger is allowed since the

registration book of the tractor indicates capacity of 1 person

only and the claimant being in addition to driver of the tractor

inside the vehicle was in conflict with the said permit which

tantamounts to be clear violation by the Insurance Company.

Hence, liability of payment of compensation cannot be fastened

upon and this submission is contained in paragraph 11 of the

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written statement as can be noticed from page 34 of the record.

The said written statement was submitted on 15.07.2000. It

further transpires from the record that on 19.08.2000 purshis

was submitted before the learned Tribunal at Exhibit-18

indicating that Insurance Company wants to amend the written

statement by raising further contention that the owner of the

tractor allowed the same on rent for the purpose of commercial

use i.e. for allowing the claimant for using the same for

harvesting wheat crop in the field and as such, also there is

violation of policy and on that count also, the Insurance

Company cannot be saddled with the liability and by order dated

18.12.2007, the said amendment is permitted to be carried out

in the written statement. This fact can be seen from page 38 of

the records and proceedings. It further appears from the

deposition of claimant - Sureshbhai Shankerbhai Valand that in

chief examination it has submitted that since there was work of

harvesting of wheat crop in the field, the same was required to

be removed by way thresher and for that purpose, since original

opponent no. 1 Somabhai Nanabhai Patel was giving on rent

the said use of the tractor and thresher, the claimant went to

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the house of said Somabhai and then after informing, the tractor

with thresher was being taken at the field of claimant and the

same was driven by the original opponent no. 2 and at that time,

the claimant was sitting in the tractor on mudguard and on

account of applying the breaks suddenly, he fell down which has

caused serious injuries as indicated above. Since the Court is

concerned with the question of liability of appellant Insurance

Company without adverting the quantum aspect, a further

perusal of the record indicates that in cross examination,

Sureshbhai Shankarbhai Valand - claimant has admitted that

the tractor was taken on rent for the purpose of harvesting

wheat from his filed. So, the said tractor was taken on rent,

driven by original opponent no. 2 and the claimant was sitting in

the tractor as additional person. It is further noticed from the

deposition of Kanjibhai Punjabhai Pandya at Exhibit-45

reflecting on page 50 as witness no. 1 of original opponent no. 3

i.e., present appellant, that amount of premium has been

collected by the Insurance Company and has clearly conveyed

that the occupiers insurance is not taken nor has taken any

additional premium and in the tractor there is no facility of

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sitting, except the driver who is plying the tractor. Of course, in

the cross examination, he admitted that there is sitting

arrangement on both the sides. Except this, nothing further is

revealed from the record. But nonetheless the fact emerging

from the record indicates that insurance policy is not permitting

any gratuitous passenger nor can be given on rent nor the

permit indicates additional capacity of sitting arrangement. In

the context of aforementioned background of fact, almost in

similar circumstance, the matter came up before the co-ordinate

Bench at the relevant point of time in the year 2016 in First

Appeal No. 4601 of 2007 with First Appeal 4602 of 2007,

wherein, in view of the conflicting decision, the matters were

referred to Division bench by formulating the question of law

and since this appeal also was kept in abeyance till the Division

Bench decides the said issue. Hence, the Court deems it proper

to quote hereunder the said reference being made vide order

dated 04.01.2016.

" Whether in the case where the initial entry in a vehicle as a passenger is in violation of the terms of the agreement, the moment such a passenger had been thrown out of the said vehicle and thereafter some portion of the vehicle itself had fallen upon the body of the

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passenger, the position of such passenger can be treated that of "third party" with reference to that vehicle and in such a case on the death of such passenger whether his heirs and legal representatives are entitled to compensation and the Insurer of the vehicle can be held liable to pay the compensation."

7. While considering the said aspect, when the decision

dated 15.06.2017 delivered by the Division Bench of this Court

in aforementioned appeals is perused, a critical analysis of the

said question in the context of terms of the policy and the

relevant law has been discussed and the Division Bench in

terms held that the liability of paying compensation by the

Insurance Company does not arise and while answering the

reference of said question of law, Insurance Company was

exonerated from liability. Since the Court has considered and is

bound by it, the Court deems it fit to reproduce the relevant

extract of the said decision hereunder :

"13. In a similar case set of facts in the case of New India Assurance Co. Ltd. v. Heirs and Lrs of deceased Pravinsinh Ranubha Zala, reported in 2013(2)GLR 1580, this Court has taken a similar view, exonerating the Insurance Company and as per the facts of this case, the victim took the tractor on rental basis and while travelling on the tractor, she fell down and died. It was held by this court that the Insurance Company would not be liable under the third party insurance policy, as the position of

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the victim was as a gratuitous passenger. The amount of award was held recoverable from the owner of the tractor only and appeal preferred by the Insurance Company was allowed.

14. Considering the facts of this case, the present appeal is hereby allowed. Award passed by the learned Motor Accident Claims Tribunal (Aux.), 4th Fast Track Court, Sabarkantha at Himatnagar in M.A.C.P. No. 1596 of 1997 is hereby modified to the extent of exonerating the appellant-Insurance Company from the liability for paying compensation to the claimants. This court, in another First Appeal No. 2194 of 2007, was pleased to held the liability of the appellant Company, considering the peculiar facts and circumstances of the case. In this case, it was found by this Court that there was clear admission on the part of the claimant that vehicle jeep was taken on hire, however, it was a private jeep. This Court of course held that there was a definite violation of terms and conditions of the Insurance, so far the Injury caused to the passengers of the vehicles were concerned. In this case, out of all passengers only the victim was died. However, both in the FIR and in the affidavit-in-chief , it was specifically stated that as a vehicle turned turtle, the victim sitting in the vehicle was thrown out of the same and she came under the rear part of the vehicle and sustained fatal injuries. In the cross-examination, no suggestion was put to the said witness that the deceased was not thrown out of the jeep, but was very much within the jeep in such situation. It was found by this Court that factually it was well established, when the jeep was fallen into ditch, out of all passengers, the victim was thrown out of the jeep and had fallen on the road and over her body, the rear portion of the jeep had struck, resulting in her death. Therefore, this Court was of the view that though the initial entry in the jeep as a passenger was in violation of the terms of agreement, the moment such a passenger, due to negligence on the part of the driver of the jeep, had been thrown out of the jeep and thereafter, the rear portion of the jeep itself had fallen upon her body, the position of the said passenger

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must be treated to be that of "a third party" with reference to the jeep. Considering the peculiar facts, the First Appeal No. 2194 of 2007 was dismissed holding the liability of the Insurance company to pay the compensation to the claimants. Here, in the present case, this is not the position as both the passengers were sitting on the tractor, and therefore, the liability of paying compensation by the appellant-Insurance Company does not arise.

15. The appellant/Insurance Company is exonerated from the liability of paying compensation to the claimants. As agreed by both the parties, the amount deposited by the appellant/Insurance Company to the tune of Rs. 30,000/- and already recovered by the claimant shall not be recovered by the appellant. Appeal stands allowed to the aforesaid extent."

8. In light of the aforesaid proposition which has been made

by the Division Bench of this Court, it would not be possible for

this Court to accept the stand of the opponents herein that

learned Tribunal has rightly fixed the liability of the Insurance

Company. On the contrary, this question has been examined and

as such, no different view is possible more particularly, here

also almost similar circumstance is reflecting. Hence, case is

made out by the appellant Insurance Company.

9. At this stage, the request of opponents with regard to

applying principle of doctrine of pay and recovery and for

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which, the decisions have been brought to the notice of this