Gujarat High Court
Farukbhai Ganibhai Rohitwala vs Ajaykumar Subhakaranji Dugar - Prop Of ... on 20 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/3166/2012 JUDGMENT DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3166 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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FARUKBHAI GANIBHAI ROHITWALA
Versus
AJAYKUMAR SUBHAKARANJI DUGAR - PROP OF OM INDUSTRIES CO &
ANR.
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/02/2024
ORAL JUDGMENT
1. The challenge has been given to the judgment of
dismissal by MACT (Main), Ahmedabad Rural decided
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on 16.6.2012 in MACP No.1634/2010.
2. Mr. Paresh Darji, learned advocate for the
appellant-claimant submitted that the petition was
filed under Section 163A of the Motor Vehicles
Act, 1988 (hereinafter referred to as "the Act")
and the same has been dismissed on the ground of
self-negligence of the insured rickshaw driver.
Advocate Mr. Darji has relied upon the policy with
the support of the proposition of law as laid down
in the case of Valiben Laxmanbhai Thakore (Koli)
Wd/o. Late Laxmanbhai Ramsinghbhai Thakore (Koli)
& Ors. v. Kandla Dock Labour Board & Anr., 2021
(4) GLH 77 and also the judgment in the case of
United India Insurance Company Ltd. v. Sunil Kumar
& Anr., 2018 ACJ 1 to state that once the
insurance company accepts the premium for the
employees, then it cannot deny the liability to
pay the amount and further stated that Section
163A of the Act does not open for the insurance
company to raise the defence/plea of negligence of
the victim.
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3. Countering the arguments, learned advocate Mr.
Maulik Shelat for the insurance company submitted
that Section 163A of the Act lays down certain
restrictions for the defence to be raised by the
insurance company. However, the negligence of the
driver himself who is the victim requires
consideration in accordance to the facts of the
case.
4. In the case of Sunil Kumar (supra), it is held
that the claim proceedings are under Section 163A
of the Act, permitting the insurance company to
raise the defence of negligence will bring the
proceedings under Section 163A at par with the
proceedings under Section 166 which would not only
be self-contradictory, but also defeat the very
legislative intention.
5. In the case of Valiben Laxmanbhai Thakore (Koli)
(supra), the Full Bench of this Court, in
paragraph-10, observed as under:-
"10. Chapter XI of the Act covers the
subject 'Insurance of Motor Vehicles
Against Third Party Risks' under
section 146(1) of which no person
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shall use a motor vehicle in public
unless there is a valid policy of
insurance which complies with the
requirements of the chapter. Section
147 provides for mandatory
requirements of such insurance
policy. It deserves to be noted that
as per the provisions of Section 147
r/w 149 of the Act, the risks which
are covered are statutorily provided,
however, parties may enter into a
contract by which the insurer agrees
to cover additional risks by
charging/payment of additional
payment. It also deserves to be noted
that the policy has a clause which
defines the limits of liability in
respect of death or bodily injury to
any person caused by or arising out
of the use of the motor vehicle under
section 11(i) of the terms and
conditions of the policy. In proviso
(b) to section II (1), which reads as
under:
"Except so far as is necessary to
meet the requirements of the
Motor Vehicles Act, the company
shall not be liable in respect of
death of or bodily injury to any
person in the employment of the
insured arising out of and in the
course of such employment"
Thus, the insurance policy would
cover only the person or classes of
persons specified in the policy.
Thus, when the Insurance Company
accepts the additional premium for
legal liability to paid Driver and /
or Conductor and / or Cleaner,
employed in connection with the
operation of the insured vehicle, by
accepting additional premium as per
IMT 28, the Insurance Company shall
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entail liability of indemnifying and
legal liability is created towards
paid Driver and / or Conductor and/
or Cleaner. In case when such
additional premium is paid, the
policy includes following clause:
"In consideration of an additional
premium of notwithstanding
anything to the contrary contained
in the policy it is hereby
understood and agreed that the
insurer shall indemnify the
insured against the insured's
legal liability under the
Employees Compensation Act 1923
the Fatal Accidents Act, 1855 or
at Common Law and subsequent
amendments of these Acts prior to
the date of this Endorsement in
respect of personal injury to any
paid driver and/or conductor
and/or cleaner whilst engaged in
the service of the insured in such
occupation in connection with the
vehicle insured herein and will in
addition be responsible for all
costs and expenses incurred with
its written consent."
The aforesaid clause therefore,
clearly prescribes that it covers the
insured against the insured's legal
liability under the Employee's
Compensation Act, 1923, the Fatal
Accidents Act, 1855 or at Common Law.
It may be noted that statutory policy
would cover liability under the
Employee's Compensation Act, 1923 as
far as Driver is concerned. By
accepting additional premium as per
the IMT 28, the same added liability
under Common Law and Fatal Accidents
Act. Motor accidents liability
predates the imposition of this
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liability under any form of statute
and such liability would be part of
Common Law till the time it was made
a statutory liability."
6. By referring to various judgments and the
provisions of the M.V. Act, the Full Bench of this
Court has held regarding the liability of the
Insurance Company, when additional premium is
accepted in following terms:
"13. Thus, when the owner of a
vehicle pay additional premium and
same is accepted by the Insurance
Company, liability of the Insurance
Company gets extended under the Motor
Vehicles Act. Section 147 of the Act
clearly prescribes for statutory
liability to cover risk of paid Driver
and Conductor under the Insurance
Policy, which is a matter of contract.
On payment of such additional premium
by the owner, the liability of the
owner shifts upon the Insurance
Company. Thus, the risk of paid Driver
and Conductor would be covered under
the Insurance Policy. Only when the
additional premium is not paid,
liability would be as per the
Employees Compensation Act, 1923 and
in such cases, compensation would be
computed as prescribed under the Act
which is limited to the extent
provided under provisions of the Act.
However, when owner pays additional
premium to cover the legal liability
of his paid driver and conductor to
the Insurance Company, as such, the
Insurance Company is enlarging the
scope for unlimited liability for
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payment of compensation, when
additional premium is accepted. The
liability of the Insurance Company
gets extended and it has no right to
raise issue of self negligence or
otherwise of the such class of the
driver of the Insured vehicle. By
accepting additional premium as per
the IMT 28, the Insurance Company
expressed its willingness to extend
its liability under the Clause of
Legal Liability to the Paid driver and
conductor as envisaged under Section
147 of the Act. Thus, in our opinion,
Insurance Company has no legal right
to avoid its legal liability under the
indemnity clause arising from the
contract of insurance towards the
insured - owner of such classes of
vehicles."
7. The proposition of law, as laid down in Valiben's
case (supra), clarifies that on payment of
additional premium by the owner, the liability of
the owner shifts upon the insurance company, and,
when owners pays additional premium to cover legal
liability of his paid driver and conductor to the
insurance company, the insurance company is
enlarging the scope for unlimited liability for
the payment of compensation, when additional
premium is accepted.
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8. Here in the present matter, the policy shows that
the premium has been accepted for the employees
who are two in number and when the negligence
aspect has not to be considered of the victim
under Section 163A of the Act, the amount would be
required to be granted following the judgment in
the case of National Insurance Company Limited v.
Gurumallamma & Anr., (2009) 16 SCC 43 since in
injury case, multiplier would be applicable.
Hence, when the multiplier system becomes
applicable in the present case when the injured
who suffered injury on 16.3.2010 at about 5.00
p.m., and was driving the rickshaw of opponent
no.1 and to save the dog on the road, who had
suddenly come on the road, the rickshaw of
opponent no.1 bearing registration no. GJ-1 AY-
6985 turned turtle and sustained injuries on his
right hand and has stated that he was serving with
the opponent no.1 and was earning Rs.3,200/- per
month. It is stated that it is amputation of right
hand and he had sustained crush injuries and had
taken treatment in V.S. Hospital as an indoor
patient from 16.3.2010 to 20.4.2010 and his right
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hand was amputed and thereafter, the claimant was
again admitted as an indoor patient in Karnavati
Hospital from 2.8.2011 to 8.8.2011 and since the
hand has been amputed, he would not be in a
position to continue his work as a driver. Hence,
though the claimant had consented for assessing
the physical disability for 30% of the body as a
whole, this Court considers that the functional
disability is required to be assessed in terms of
proposition laid down in the case of Raj Kumar v.
Ajay Kumar & Anr., (2011) 1 SCC 343 and
considering the peculiar facts and circumstances
of the present case and victim of amputation and
the vocation of the applicant as being a driver,
the functional disability is required to be
assessed in the matter. The relevant documents on
record disclose the traumatic amputation below
elbow suffered by the claimant and the injury
certificate dated 12.6.2010 issued by Sheth
Vadilal Sarabhai General Hospital has referred the
following injuries:-
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"RTA at Vejalpur at around 5.30 PM on
16/3/10
C/o pain, swelling, deformity, open
bleeding wound - over
Rt.forearm
ODP: C/o pain, swelling, deformity,
open bleeding - over Rt.forearm
Open wound with cut flexon, tendons &
radial artery +nt over dorsal & volar
aspect
Past H/o, Per H/o - NAD
T/P/R/BP - (N)/92/18/130/70
RS,CVS,CNS,GIT: NAD.
Tenderness, Swelling, Deformity, Open
bleeding wound +nt over.Rt.forearm
DP/DM - absent
Distal surface - cold
CO - Ab
T - cold
SPO2 - 92%"
9. Thus, in light of the certificate dated 12.6.2010,
functional disability would require just
consideration which is to be assessed in terms of
vocation of the claimant.
10. Further, it requires to be noted that the note
below the schedule under Section 163A of the Act
specifies that in case where the injuries lead to
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result in permanent total disablement/permanent
partial disablement, then percentage of loss of
earning capacity shall be as per Schedule-I under
the Workmen's Compensation Act, 1923 (the
Employee's Compensation Act, 1923). Schedule-I to
Section 2(1) and (4) of the Employee's
Compensation Act, 1923, in Part-II notes the
percentage of loss of earning capacity to the
description of injury and accordingly, Part-II
specifies the loss of a hand or of the thumb and
four fingers of one hand or amputation from below
tip of olecranon which would be 60%.
11. In view of the above, 60% functional disability to
the monthly income of Rs.3,200/- would be
Rs.1,920/- with the yearly loss which would come
to Rs.23,040/- and applying multiplier of 15 as
per the schedule attached to Section 163A of the
Act to the age limit of above 40 and not exceeding
45, future loss of income would come to
Rs.3,45,600/-.
12. Actual loss is to be assessed for a period of 52
weeks in accordance to the hospitalization and the
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fact that the claimant would have taken time to
recover looking to the injury sustained by him and
hence, 52 weeks is assessed for non-working period
and hence, actual loss of income is considered as
Rs.38,400/-. Under the head of pain, shock and
suffering, by following the schedule, Rs.5,000/-
for grievous injuries is made applicable. In the
present matter, medical bill to the maximum limit
of Rs.15,000/- is granted as per the note below
the schedule.
13. In the result, the claimant would be entitled to
the amount of compensation of Rs.4,04,000/- with
interest at the rate of 7.5% per annum from the
date of filing of the claim petition till its
realization. The said amount is directed to be
deposited within eight weeks from the date of
receipt of writ of this Court. Let total amount be
paid to the claimant on verification of the
identity.
14. The impugned judgment and award be modified
accordingly. The appeal is partly allowed.
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Registry is directed to send the record and
proceedings back to the Tribunal, if received.
(GITA GOPI,J)
Maulik
