Gujarat High Court
Oriental Insurance Company ... vs Lh Of Decd Vitthalbhai Poojabhai ... on 13 March, 2023
Bench: Gita Gopi
C/FA/902/2023 JUDGMENT DATED: 13/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 902 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 902 of 2023
With
R/FIRST APPEAL NO. 5010 of 2018
With
CIVIL APPLICATION (FOR SUBSTITUTE SERVICE) NO. 3 of
2018
In R/FIRST APPEAL NO. 5010 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/FIRST APPEAL NO. 5010 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
=======================================
Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
=======================================
ORIENTAL INSURANCE COMPANY LIMITED
Versus
LH OF DECD VITTHALBHAI POOJABHAI GOHIL
======================================
Appearance:
MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3,4
MR.HIREN M MODI(3732) for the Defendant(s) No. 1.1,1.2,1.3,1.4
======================================
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C/FA/902/2023 JUDGMENT DATED: 13/03/2023
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/03/2023
ORAL JUDGMENT
1. Appellants - Oriental Insurance Co. Ltd. and the State Bank
of India (SBI), have challenged the judgment and award dated
18.07.2016 passed in Motor Accident Claim Petition No. 817 of
1996 (claim petition) by learned Motor Accident Claims Tribunal
(Special), Vadodara (the Tribunal).
2. The appeal (First Appeal No. 5010 of 2018) of SBI is of the
year 2018, which is filed on the ground that while passing the
impugned judgment and award, the Tribunal has failed to
consider the fact that the SBI is the creditor and not the
insurance provider and hence, the liability of the SBI is only till
the time the vehicle gets insured and is out on the road.
3. While the insurance company (Oriental Insurance Co. Ltd.)
has challenged the impugned judgment and award on the ground
that that Tribunal ought to have considered the fact that Tractor
bearing registration No. GJ-6-A-9067 was insured with the
appellant - insurance company from 01.12.1994 to 13.11.1995
and the accident has occurred on 13.11.1994 i.e. prior to the date
C/FA/902/2023 JUDGMENT DATED: 13/03/2023
of insurance coverage and hence, the insurance company ought
to have been exonerated as no insurance was there on the date
of accident. The insurance company has preferred to rely upon a
copy of insurance policy, produced on record at Annexure 'B'.
4. Learned advocate Mr. Hiren Modi for the original claimants
drew the attention of the Court to the observations made in
paragraph 3 of the impugned judgment and award and submitted
that during the course of trial, all the opponents were served with
notice, however, the opponent Nos. 1, 2 and 3 did not remain
present and an ex parte order came to be passed against them.
It is submitted that opponent No. 3 is the Oriental insurance Co.
Ltd. Learned advocate Mr. Modi further submitted that the
insurance company had not preferred to remain present before
the Tribunal and had not filed any Written Statement to raise any
contention about the insurance policy and thus, it is stated that
for the very first time, after such a long period, this issue has
been raised to avoid the payment of money, which has been
jointly and severally laid down against all the opponents and the
awarded amount is merely Rs.42,760/- with interest at the rate of
9% per annum and thus, stated that even considering the
smallness of amount, the present appeals are required to be
dismissed as the claimants have yet not received any
C/FA/902/2023 JUDGMENT DATED: 13/03/2023
compensation money.
4.1 It is further stated that as per the observations made by the
Tribunal in the judgment and award, SBI was also served and had
filed the appearance but failed to file any Written Statement and
hence, their right came to be closed. Learned advocate Mr. Modi
for the claimants further submitted that the petition was filed in
the year 1996 and the award is of the year 2016 and during this
period also, none of the opponents had appeared before the
Court to get their rights reopened and to file their Written
Statement. The claimants are third parties and they would have
no knowledge about inter se agreements between the insurance
company and the SBI. While the fact was brought on record that
the involved vehicle was hypothecated with the bank.
5. Learned advocate Mr. Dhruvik K. Patel for the appellant -
SBI submitted that though award was drawn and joint and several
liability was laid down against all the opponents, the claimants
have not preferred to file any execution petition against the
insurance company and there would not have any liability of the
Bank to pay the claimants and hence, the execution of the award
was stayed by this Court by an order dated 05.12.2018, which
again was reaffirmed by an order dated 07.12.2018. It is further
C/FA/902/2023 JUDGMENT DATED: 13/03/2023
stated that it is not the liability of the Bank to pay the claimants
of the vehicle that was insured by the Oriental Insurance Co. Ltd.
5.1 Learned advocate Mr. Patel for the appellant - SBI, relied
upon a decision of the Apex Court in HDFC Bank Ltd. v.
Kumari Reshma, (2015) 3 SCC 679 = MANU/SC/1094/2014
to submit that financed owner for the purchase of vehicle had
entered into Hypothecation Agreement and when the vehicle is
insured, then it is the liability of the insurance company to satisfy
the award.
5.2 It is further submitted by learned advocate Mr. Patel that
the Bank had financed the owner for purchase of vehicle and the
owner had entered into the Hypothecation Agreement with the
Bank and hence, the liability of owner cannot be saddled upon
the hypothecator for the negligence or any liability and submitted
that the owner of the vehicle would be the person who has actual
possession and control over the vehicle and the Bank was loan
granter and was not in actual possession of the vehicle in
question. It is also stated that the liability cannot be fastened on
the Bank.
6. Learned advocate Ms. Rahevar for the insurance company
C/FA/902/2023 JUDGMENT DATED: 13/03/2023
submitted that it is an explicit case of insurance company that on
the date of accident, the vehicle in question was not insured and
since there being no coverage, no liability can be laid down upon
the insurance company.
6.1 Referring to a copy of the insurance policy, learned
advocate Ms. Rahevar submitted that as per record, the Tractor
bearing registration No. GJ-6-A-9067 was insured for the period
between 01.12.1994 to 30.11.1995 and hence, on the date of
accident, it was hypothecated with SBI and hence, the involved
vehicle was not insured with the insurance company on the date
of accident and it would be the absolute liability of SBI to pay the
amount.
7. The operative part of the impugned judgment and award
shows that the claimant was made entitled to recover the
amount of Rs.42,760/- as compensation from all the opponents,
jointly and/or severally, together with running interest at the rate
of 9% per annum from the date of petition till payment along with
proportionate costs of petition. The liability of all the opponents
has been held joint and several.
7.1 Paragraph 3 of the impugned judgment and award notes as
C/FA/902/2023 JUDGMENT DATED: 13/03/2023
under:
"In response to the notice is served opponents no. 1
to 3 not remain present and ex-party order passed
against the opponent no. 1 to 3 and opponent no.4
duly served with the notice he has appeared but reply
W.S. not filed hence right closed."
7.2 The appellant - Oriental Insurance Co. Ltd. was the
opponent No. 3 in the claim petition and though served, had
preferred not to remain present before the Tribunal and an ex
parte order was passed against the opponent Nos. 1 to 3. The
SBI was brought on record as opponent No. 4 by way of
Amendment Application, Exh. 14 and though served, had failed to
appear and no reply was filed and hence, their right came to be
closed.
7.3 The grounds which have been raised in the appeal, were
never agitated before the Tribunal. The claimants, by way of
Amendment Application, by Exh. 14, brought SBI on record. The
Bank had enough opportunity to raise their case and even the
insurance company was granted opportunity to prove the facts
on record, however, none preferred to remain present before the
C/FA/902/2023 JUDGMENT DATED: 13/03/2023
Tribunal and now, after a long period, when the claimants had
initiated the proceedings for recovery of the money, both the
opponents have preferred the appeal.
8. This Court does not find any reason to entertain the
grounds raised in the appeals as the same were not agitated
before the Tribunal. The inter se dispute between the Oriental
Insurance Co. Ltd. and the SBI are to be resolved on their own
level. The claimants are made entitled to recover the amount,
jointly and severally from all the opponents and the execution
proceedings, thus, cannot be struck at this stage where no case,
by way of any averments or pleadings, was raised by the
opponents for the Tribunal to decide inter se liability of the
opponents. Hence, on this ground too, both the appeals are
required to be rejected.
8.1 Further, considering the smallness of amount, the appeals
are not even required to be entertained. Hence also, stand
rejected.
8.2 The amount can be recovered from the opponents.
8.3 In view of main appeals are disposed of as rejected, Civil
C/FA/902/2023 JUDGMENT DATED: 13/03/2023
applications, if any, shall also stand disposed of accordingly.
R&P, if received, be transmitted back to the Tribunal concerned
forthwith.
[ Gita Gopi, J. ]
hiren/14
