Gujarat High Court

United India Insurance Co. Ltd vs Sonalben Vishnukumar Senma on 25 September, 2023

Bench: Devan M. Desai

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      C/FA/2952/2008                                 JUDGMENT DATED: 25/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2952 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE DEVAN M. DESAI

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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 ?

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                     UNITED INDIA INSURANCE CO. LTD.
                                   Versus
                 SONALBEN VISHNUKUMAR SENMA & 4 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
for the Defendant(s) No. 5.1
DECEASED LITIGANT for the Defendant(s) No. 5
MR HARESH H PATEL(611) for the Defendant(s) No. 1,2
NOTICE SERVED for the Defendant(s) No. 3,4
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    CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                              Date : 25/09/2023
                              ORAL JUDGMENT

[1] The present First Appeal filed by the

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Insurance Company under Section 173 of the Motor

Vehicles Act, challenging the judgment and award passed

by the Motor Accident Claims Tribunal (Aux.), Mehsana

in MACP 1497 of 1996 on 05.07.2006.

[2] The short facts of the case are as under:-

2.1 The deceased Vishnubhai Maganlal Senma was

traveling in truck bearing GJ-3U-7797 on 26.09.1996. The

deceased traveled in the said Truck as a passenger and

on 26.09.1996, when the truck approached between

Lachhdi and Kada, the said Truck turned turtled and

resultantly, Vishunabhai Senma succumbed on the spot.

2.2 The original claimant No.1, is the wife of the deceased, original claimant No.2, is the mother of the

deceased and original claimant No.3, is the son of the

deceased.

2.3 The petitioners claimed compensation at

Rs.7,00,000/- with interest at the rate of 24% per annum.

The notice and summon of the petition were served to

the original opponents i.e. the driver and owner of the

offending truck and Insurance Company. The Opponent

No.3 - Insurance Company filed its written statement at

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Ex.25, whereas Opponent Nos.1 and 2 though served, did

not file any written statement.

2.4 The learned Tribunal framed issues at Ex.14 and

after considering the evidence, the learned Tribunal

granted Rs.4,07,400/- inclusive of all heads with interest

@ 7.5% from the date of petition till realization.

[3] Heard the learned advocate Mr.G.C.Majmudar

for the appellant - Insurance Company and the learned

advocate Mr.Haresh Patel for respondent Nos.1 & 2 i.e.

original claimants.

[4] As per the submission of learned Advocate for

the appellant that very short question of law has been urged for consideration i.e. the question of whether the

Insurance Company is liable for the compensation to the

claimants as the deceased was a gratuitous passenger in

the offending truck. No other grounds have been pressed

for the consideration.

[5] Learned Advocate for the appellant - Insurance

Company has submitted that the judgment and award is

bad in law mainly on the ground that, on the date of

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accident, deceased Vishnubhai Senma was standing

nearby GH-5, Gandhinagar, and when the truck bearing

No.GJ-3U-7797 was proceeding towards Visnagar, he

raised his hand and sat in the goods vehicle. It is

further submitted by the learned advocate for the

appellant that the deceased was not carrying on any

goods with him and he had not hired the vehicle to

carry any goods with him on a particular date.

5.1 Learned advocate for the appellant has further

submitted that, a complaint was lodged by Allarakha

Siddharth Khan, a cleaner of the offending truck. And as

per the complaint, the deceased was not found with any

goods. Even on perusal of the Panchnama, no goods was

found on the site and hence, the learned Advocate for the appellant has submitted that the deceased was

gratuitous passenger and he was not having any goods

either domestic or commercial on the date of accident.

The learned advocate for the appellant has thus

submitted that the learned Tribunal has committed a

serious error while passing the impugned award without

considering the fact that the deceased was a gratuitous

passenger.

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5.2 Learned advocate for the appellant has relied

upon a decision of National Insurance Co. Ltd. V Rattani

& Ors. reproted in 2009 ACJ 925. Learned advocate for

the appellant has also relied upon a decision of the

Hon'ble Apex Court in the case of Balu Krishna Chavan

Vs.The Reliance General Insurance Company Ltd. & Ors.

[6] Learned Advocate for the respondent Nos.1 and

2 has mainly relied upon the findings of the learned

Tribunal and submitted that the observations and

findings arrived at by the learned Tribunal, do not

require any interference.

6.1 Learned Advocate for the respondents -

original claimants has submitted that the deceased was traveling in the offending truck with goods and the truck

driver was rash and negligent and resultantly, the truck

turnrf turtled and the deceased Vishnubhai Senma

succumbed on the spot. Learned Advocate for the

respondents further submitted that in the Examination-

in-chief, claimant No.2 - Santokben Maganlal Senma has

deposed that the deceased was traveling in the offending

vehicle with goods.

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6.2 It is further contended by the learned Advocate

for the respondents that the deceased was not a

gratuitous passenger in view of the aforesaid facts.

[7] I have perused the documentary evidence

produced on record and the impugned judgment and

award, it is worthwhile to note that in the claim

petition, petitioners have stated on 26.09.1996 that the

deceased was traveling in the offending truck with goods,

even in the Examination-in-chief, applicant - Santokben

Senma has averred that the deceased was traveling in

the offending truck with his goods. The petitioners have

produced the FIR Ex.18 and Panchnama Ex.19. On

perusal of the Panchnama, there is no mention about any goods lying on the accident site. Even in the

complaint being lodged by the cleaner of the offending

truck, he has not mention that the deceased was

traveling with the goods. On the contrary, it is found

that the deceased was a gratuitous passenger. However,

the learned Tribunal has given complete go by to the

aforesaid aspect while deciding the issue involved. The

learned Tribunal has committed an error in holding that

the Insurance Company is liable for the compensation.

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Even in the Cross-examination of the applicant, she has

stated that the deceased was carrying household material

on the date of accident. Even, the owner of the vehicle

has not stepped into the witness box and has not

contended that the Insurance Company has accepted

additional premium to cover the risk. In absence of

evidence on record and after considering the complaint

and panchnama, which are the prima facie documents for

the consideration, I am of the view that, the deceased

was gratuitous passenger traveling in the offending

vehicle on the date of accident and the Insurance

Company cannot be saddled with the liability to

reimburse the compensation.

[8] In the case of National Insruance Co. Ltd. Vs.

Rattani (supra) in para 7 & 13, the Hon'ble Apex Court

has observed hereinunder:-

"7. We are not oblivious of the fact that ordinarily an allegation made in the first information report would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that Tribunal and consequently the appellate courts would be entitled to look into the same.

13. The question as to whether burden of proof

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has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contended that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.

As indicated hereinbefore, the first information report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the first information report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose."

[9] In the aforesaid decision, the Hon'ble Apex

Court has observed that when the first information

report itself has been made a part of the claim petition,

the same can be looked into. In the present case, the

first information report and panchnama have been

produced by the claimant and the Tribunal has failed to

consider the contents of the first information report and

Panchnama. Hence, to that extent, the judgment and

award, is not sustainable.

[10] In the case of Balu Krishna Chavan (supra), in

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paragraph Nos.7, 8, 9 and 10, the Hon'ble Apex Court

has observed below:-

"7. However, considering the fact that the appellant was a gratuitous passenger in the said vehicle, the Respondent-Insurance Company was not liable to reimburse the compensation. Though, the Motor Accidents Claims Tribunal (for short 'MACT') had not taken this aspect of the appellant being a gratuitous passenger into consideration, the High Court while considering the appeal filed by the respondent-Insurance Company, had arrived at the conclusion that the Insurance Company is not liable to pay the compensation. It is in that view, the appellant had filed a review petition, which was also dismissed.

8. Hence, the only aspect for our consideration herein, is as to whether in the facts and circumstances of the present case, an order to direct the Insurance Company to "pay and recover", is required to be made. On this aspect, the law is well settled that if the liability of the Insurance Company is decided and they are held not to be liable, ordinarily, there shall be no direction to "pay and recover". However, in the facts and circumstances arising in each case, appropriate orders are required to be made by this Court to meet the ends of justice.

9. In the instant case, the appellant has relied on the judgment dated 21.02.2017 passed by this Court in Civil Appeal No(s). 3047 of 2017 titled as

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"Manuara Khatun & Ors. vs. Rajesh Kr. Singh & Ors". In the said case also, a Bench of this Court, having referred to the earlier decisions in Para-15 and 16 of that Judgment, has concluded that normally, there would be no order to "pay and recover". However, in the said facts, this Court, to meet the ends of justice, had taken into consideration the fact situation though, the claimant therein, was a 'gratuitous passenger' and had kept in view that the benevolent object of the Act and had directed the payment by the Insurance Company and to recover the amount.

10. Therefore, on the legal aspect, it is clear that in all cases such order of "pay and recover" would not arise when the Insurance Company is not liable but would, in the facts and circumstances, be considered by this Court to meet the ends of justice.

[11] In the aforesaid decision, the Hon'ble Apex

Court has observed that the Insurance Company can be

directed to 'pay and recover'. It is further observed by

the Hon'ble Apex Court that if the liability of the

Insurance Company is decided and they are held not to

be liable, ordinarily, there shall be no direction to 'pay

and recover.'

[12] Keeping in view the decision of the Hon'ble

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Apex Court and to serve the ends of justice in the facts