Gujarat High Court
New India Assurance Co. Ltd vs Heirs Of Decd. Chandulal ... on 9 November, 2023
Bench: S.V. Pinto
NEUTRAL CITATION
C/FA/3183/2011 JUDGMENT DATED: 09/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3183 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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NEW INDIA ASSURANCE CO. LTD
Versus
HEIRS OF DECD. CHANDULAL LAKHMANBHAI- LAKHMANBHAI
NAGJIBHAI & 2 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 09/11/2023
ORAL JUDGMENT
1. This first appeal has been filed by the appellant-original
opponent No.2 - Insurance Company against the respondent No.
1 & 2- original claimants and the respondent no.3 - original
opponent No. 1 under Section 173 of the Motor Vehicles Act,
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( 'The Act', for short) against the judgment and award passed by
learned M.A.C.Tribunal (Main), Junagadh in Motor Accident Claim
Petition No. 247 of 1998 on 23.06.2011. The parties are
hereinafter referred to as the claimants and the opponents as they
stood in the original petition for the sake of convenience, clarity
and brevity.
2. The brief facts that emerge from the record of the case are
as under:-
2.1] That on 10th January, 1997, Chandulal Lakhmanbhai, son of
the claimants had gone for his work as a diamond polisher and
was to return with one Maund of wheat in the evening and sat in
rickshaw No. GJ-11-5517 with wheat and paid a fare of Rs.30/- for
the same. That the rickshaw was driven by the opponent No. 1 in
full speed and in a negligent manner and when the rickshaw
reached at Bagasra public road near Sobha Vadla village, the
opponent No. 1 lost control over rickshaw and it turned turtle on
the side and Chandulal Lakhmanbhai was crushed under the
goods and the rickshaw and sustained serious injuries and
succumbed to the injuries on the spot. The offence was registered
at Visavadar Police Station I-C.R.No.-2 of 1997.
2.2] The claimants who are the parents of the deceased
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Chandulal Lakhmanbhai have filed the claim petition mainly stating
that the deceased was 20 years at the time of accident and was
hale and hearty and he was a skilled worker and doing diamond
polishing and was earning Rs.3,000/- p.m.. That he was the sole
bread earner of the family and the claimants have suffered a huge
loss and have claimed an amount of Rs.5,22,000/- from all
opponents jointly and severally under all available heads. The
opponent No. 2 is the Insurance Company of the vehicle involved
in the accident.
3. The notices were duly served to the opponents and the
opponent No. 1 appeared but did not file any written statement and
the opponent No. 2 appeared and filed its written statement at
Exh:21 mainly denying all the allegations made in the claim
petition and have stated that that the accident has occurred due to
the negligence of the opponent No. 1 and hence the opponent-
Insurance Company cannot be held liable to compensate the
claimants.
4. The learned Tribunal, after considering the evidence on
record found the opponent No. 1 negligent for the occurrence of
the accident and considering the other evidence submitted by the
claimants ordered the opponent to pay an amount of Rs.2,31,000/-
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to the claimants jointly and severally with interest at the rate of
7.5% from the date of filing of the application till realization.
5. Being aggrieved and dissatisfied with the judgment and
award passed by the learned Tribunal, the opponent No.2-
Insurance Company has filed the present first appeal mainly
stating that, on the day of the accident, the deceased Chadulal
Lakhmanbhai was traveling in carrier rickshaw No. GJ-11-5517,
which is a delivery van and a commercial vehicle and the
deceased was traveling as a unauthorized gratuitous passenger
and there is a breach of terms and conditions of the policy of the
Insurance Company and therefore the Insurance Company is not
liable to pay any amount of compensation. That wheat did not fall
within the definition of goods and was a personal belonging and
the learned Tribunal has ignored the objections received by the
Insurance Company. That the Insurance Company is not liable to
indemnify the owner of the vehicle as there is a breach of terms
and conditions and the appeal must be allowed and the Insurance
Company must be exonerated from paying the amount of
compensation.
6. I have heard learned advocate Mr. Palak Thakkar appearing
for the appellant- original opponent No.2-Insurance Company and
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learned advocate Mr. Hiren Modi appearing for the opponent
Nos.1 & 2. Though served, the respondent No. 3 has not
appeared.
7. Learned advocate Mr. Thakkar, appearing for the appellant-
Insurance Company has relied upon the judgment of the Hon'ble
Supreme Court of India in Balu Krishna Chavan V The Reliance
General Ins. Com. Ltd. & Ors. reported in 2022 Law Suit (SC) 1542
and has submitted that as the deceased was gratuitous passenger and
traveling in a carrier rickshaw, which is a commercial vehicle, the
Insurance Company cannot be liable and the order of pay and recover
would not arise when the Insurance Company is not liable to pay
amount of compensation.
8. Learned advocate Mr. Hiren M. Modi appearing on behalf of
respondent Nos.1 and 2 has stated that the learned Tribunal has
considered all the evidence on record and the claimants have
specifically deposed that the deceased was carrying one Maund of
wheat and had hired the rickshaw to carry the wheat and had paid
fare of Rs.30/-. The claimants have also examined witness
Vitthalbhai Dungarbhai, who has stated that he had taken the sack
of wheat and the tiffin of the deceased from the place of accident
and given then to the house of the deceased. The learned Tribunal
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has rightly believed the aspect and found that the deceased was
not a gratuitous passenger but was sitting in the rickshaw as
owner of the goods.
9. From the records and proceeding of the M.A.C.P. No. 247 of
1998, the claimants have filed the claimant petition mainly
contending that the deceased had gone for his work as a diamond
polisher on 10.01.1997 and was to return with one Maund of
wheat and he had paid a fare of Rs.30/- for the wheat and was
sitting in a carrier rickshaw No. GJ-11-5517 as the owner of the
wheat. The claimant no. 1 has filed his examination-in-chief at
Exh33 and has reiterated the contents of the claim petition and
during the cross examination has stated that he has no personal
knowledge about the accident as he was not present at that time..
The claimants have examined Vitthalbhai Dungarbhai at Exh; 34
and the witness has stated that he had gone to the place of the
accident along with Bharatbhai Laljibhai of his village and at that
time the injured were being taken to the Hospital of Visavadar and
he had taken the items and given them to the house of the
deceased. That he had later learnt that the deceased succumbed
to his injuries. During the cross-examination by the learned
advocate for the Insurance company, he has stated that he is not
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related to the deceased. The claimants have produced the F.I.R. at
Exh: 25, the panchnama of place of offence at Exh:26, postmortem
note at Exh: 27, R.C.Book of the rickshaw at Exh: 28 and the
premium receipt at Exh: 29.
10. The learned advocate for the claimants has submitted that
the claimants have succeeded in proving that the deceased was
sitting in rickshaw as an owner of the goods and he had paid an
amount of Rs.30/- for the sack of wheat that he was carrying and
the witness Vitthalbhai Dungarbhai, who has been examined at
Exh:34 has categorically stated that, he had taken sack of wheat
and had given the same at the house of the deceased. That the
Insurance Company has not examined the driver of the vehicle to
rebut the evidence produced by the claimants and the learned
Tribunal has properly appreciated all the evidence produced by the
claimants on record.
11. The claimants have produced the FIR at Exh: 25 and the
complaint has been filed by one Mohanbhai Govindbhai Dobariya,
aged: 28 years, residing at Soma Vadla and he has stated that on
10th January, 1997 in the evening at around 23:47 pm, he was
standing on the road to go from Manakvada to Soma Vadla and at
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that time the diesel rickshaw came and he halted the rickshaw and
sat in the rickshaw to go to his village and at that time, Sanjay @
Hudi Gulabhai Pipaliya, Rameshbhai and Chandubhai Madhubhai
Vashrambhai and others, in all seven persons sat in the rickshaw,
and the rickshaw was going towards Soma Vadla and when it was
near Soma Vadla, the driver was driving the rickshaw in a rash and
negligent manner in full speed and the rickshaw turned turtle on
the left side and they all were thrown out from the rickshaw and
one person was crushed under the rickshaw. That, they all lifted
the rickshaw and found that Chandubhai Lakhmanbhai Patel was
crushed under the rickshaw and he had expired. That the rickshaw
was bearing GJ-11-U-5517 and the driver left the rickshaw and ran
away from the place of incident. That others sustained injuries and
he had sustained injuries on the left leg above knee and on the left
hand and Chandubhai had died on the spot and the injured were
taken to Hospital in Rajkot and he had filed the complaint against
the driver of rickshaw bearing No. GJ-11-U-5517. The complaint
has been produced on record by the claimants and the claimants
have relied upon this complaint to prove their case. On perusal of
the complaint, it clearly transpires that the deceased and others
were sitting in the rickshaw as gratuitous passengers in the
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rickshaw, which is a goods vehicle, and in all, they were around
seven persons, who were sitting in the rickshaw. There is no
whisper about any goods that were placed in the rickshaw and if
any of the passengers had any goods with them, the same would
have been mentioned by the complainant in the complaint.
12. The claimants have produced the copy of the panchnama at
Exh; 26 and on perusal of the panchnama, which is the
panchnama of the place of offence, it appears that at the place of
offence, the rickshaw No. GJ-11-U-5517 was lying in a damaged
condition and there were bloodstains near the front wheel of the
rickshaw and the dead body of the deceased was lying there and
the dead body was identified by one person to be that of
Chandubhai Lakhmanbhai Patel. That in the entire panchnama, no
wheat has been found at the place of incident. The claimants have
come with the case that the deceased had taken a sack of wheat
and was sitting in the rickshaw as owner of the goods, after fixing
the fare of the goods at Rs.30/- but in the complaint of the
panchnama produced by the claimants and fully relied upon by the
claimants, there is no iota of evidence to show that there was any
wheat that was being carried out by the deceased at the time of
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the accident.
13. The claimants have examined witness Vitthalbhai
Dungarbhai Pansuriya who has stated that he had gone to the
place of incident and taken the sack of the wheat and tiffin of the
deceased and given to his home but during the cross examination,
the witness has stated that his statement was not recorded by the
police and he had narrated the facts for the first time before the
learned Tribunal. The witness has also stated that they were 8 to
10 persons in the rickshaw and admittedly the witness was not an
eye witness to the accident and and the witness was not present at
the time when the fare was fixed or an eye witness to the incident
as occurred and hence, it appears that the claimants have not
produced any proof that the deceased was sitting in the vehicle as
the owner of the goods but from the documents relied upon by the
claimants mainly meanwhile the complaint at Exh; 25 and the
panchnama at Exh: 26, it is proved that the deceased was sitting
as a gratuitous passenger along 7 to 8 other people in the goods
vehicle.
14. Learned advocate for the appellant Mr. Palak Thakkar has
relied upon the judgment of M/s National Insurance Co. Ltd. Vs.
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Baljit Kaur and Ors. in Appeal (civil) No. 16 of 2004;,wherein, the
Hon'ble Apex Court has observed as under:-
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It is pertinent to note that a statutory liability enjoined
upon an owner of the vehicle to compulsorily insure it
so as to cover the liability in respect of a person who
was travelling in a vehicle pursuant to a contract of
employment in terms of proviso (ii) appended to
Section 95 of the 1939 Act does not occur in Section
147 of the 1988 Act. The changes effected in the 1988
Act vis-`-vis the 1939 Act as regard definitions of
'goods vehicle', 'public service vehicle' and 'stage
carriage' have also a bearing on the subject inasmuch
as the concept of any goods carriage carrying any
passenger or any other person was not contemplated.
In a situation of this nature, the doctrine of suppression of
mischief rule as adumbrated in Heydon's case [3 Co Rep 7a,
76 ER 637] shall apply. Such an amendment was made by
the Parliament consciously. Having regard to the definition of
'goods carriage' vis-`-vis 'public service vehicle', it is clear that
whereas the goods carriage carrying any passenger is not
contemplated under the 1988 Act as the same must be used
solely for carrying the goods.
In Halsbury's Laws of England, Volume 44(1), fourth reissue,
para 1474, pp 906-07, it is stated :
"Parliament intends that an enactment shall remedy a
particular mischief and it is therefore presumed that
Parliament intends that the court, when considering, in
relation to the facts of the instant case, which of the opposing
constructions of the enactment corresponds to its legal
meaning, should find a construction which applies the remedy
provided by it in such a way as to suppress that mischief. The
doctrine originates in Heydon's case where the Barons of the
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Exchequer resolved that for the sure and true interpretation of
all statutes in general (be they penal or beneficial, restrictive
or enlarging of the common law), four things are to be
discerned and considered :
(1) what was the common law before the making of the Act;
(2) what was the mischief and defect for which the common
law did not provide;
(3) what remedy Parliament has resolved and appointed to
cure the disease of the commonwealth; and
(4) the true reason of the remedy, and then the office of all
the judges is always to make such construction as shall :
(a) suppress the mischief and advance the remedy; and
(b) suppress subtle inventions and evasions for the
continuance of the mischief pro privato commodo (for private
benefit); and
(c) add force and life to the cure and remedy according to the
true intent of the makers of the Act pro publico (for the public
good)."
Heydon's Rule has been applied by this Court in a large
number of cases in order to suppress the mischief which was
intended to be remedied as against the literal rule which could
have otherwise covered the field. [See for example, Smt. PEK
Kalliani Amma and Others vs. K. Devi and Others, [AIR 1996
SC 1963; Bengal Immunity Co. Ltd. vs. State of Bihar and
Others, AIR 1955 SC 661; and Goodyear India Ltd. vs. State
of Haryana and Another, AIR 1990 SC 781].
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By reason of the 1994 Amendment what was added is
"including the owner of the goods or his authorised
representative carried in the vehicle". The liability of the
owner of the vehicle to insure it compulsorily, thus, by reason
of the aforementioned amendment included only the owner of
the goods or his authorised representative carried in the
vehicle besides the third parties. The intention of the
Parliament, therefore, could not have been that the words
'any person' occurring in Section 147 would cover all persons
who were travelling in a goods carriage in any capacity
whatsoever. If such was the intention there was no necessity
of the Parliament to carry out an amendment inasmuch as
expression 'any person' contained in sub-clause (i) of clause
(b) of sub-section (1) of Section 147 would have included the
owner of the goods or his authorised representative besides
the passengers who are gratuitous or otherwise.
The observations made in this connection by the Court in
Asha Rani case (supra) to which one of us, Sinha, J, was a
party, however, bear repetition:
"26. In view of the changes in the relevant provisions in the
1988 Act vis-`-vis the 1939 Act, we are of the opinion that the
meaning of the words "any person" must also be attributed
having regard to the context in which they have been used
i.e. "a third party". Keeping in view the provisions of the 1988
Act, we are of the opinion that as the provisions thereof do
not enjoin any statutory liability on the owner of a vehicle to
get his vehicle insured for any passenger traveling in a goods
vehicle, the insurers would not be liable therefor."
In Asha Rani (supra), it has been noticed that sub-clause (i)
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of clause
(b) of sub-section (1) of Section 147 of the 1988 Act speaks
of liability which may be incurred by the owner of a vehicle in
respect of death of or bodily injury to any person or damage
to any property of a third party caused by or arising out of the
use of the vehicle in a public place. Furthermore, an owner of
a passenger-carrying vehicle must pay premium for covering
the risks of the passengers traveling in the vehicle. The
premium in view of the 1994 Amendment would only cover a
third party as also the owner of the goods or his authorized
representative and not any passenger carried in a goods
vehicle whether for hire or reward or otherwise.
It is therefore, manifest that in spite of the amendment of
1994, the effect of the provision contained in Section 147 with
respect to persons other than the owner of the goods or his
authorized representative remains the same. Although the
owner of the goods or his authorized representative would
now be covered by the policy of insurance in respect of a
goods vehicle, it was not the intention of the legislature to
provide for the liability of the insurer with respect to
passengers, especially gratuitous passengers, who were
neither contemplated at the time the contract of insurance
was entered into, nor any premium was paid to the extent of
the benefit of insurance to such category of people.
15. In view of the above and in the case of Baljit Kaur (supra),
the vehicle being a carrier rickshaw, the appeal is allowed. The
Insurance Company is hereby exonerated from paying the amount
of compensation to the claimants. It is clarified that if any amount
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is disbursed to the claimants, the same may not be recovered by
the Insurance Company but the the amount lying in Fixed Deposit
with the learned Tribunal be disbursed to the Insurance Company
by NEFT / RTGS, after proper verification.
16. Record and proceedings be sent back to the concerned
Tribunal forthwith.
Sd/-
(S. V. PINTO,J)
VVM
