Gujarat High Court
Rameshbhai Bhaichandbhai Raval vs Dungarsinhji Ramsinhji on 11 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
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C/FA/3745/2019 JUDGMENT DATED: 11/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3745 of 2019
With
R/FIRST APPEAL NO. 3746 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
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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RAMESHBHAI BHAICHANDBHAI RAVAL
Versus
DUNGARSINHJI RAMSINHJI
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Appearance:
KAASH K THAKKAR(7332) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
NOTICE SERVED for the Defendant(s) No. 2,3
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 11/01/2024
COMMON ORAL JUDGMENT
1. First Appeal No.3745 of 2019 is filed by the injured
claimant, while First Appeal No.3746 of 2019 is filed
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by the heirs of the deceased, challenging the common
judgment dated 12.04.2019 passed by the learned
Motor Accident Claims Tribunal (Auxiliary), Patan in
M.A.C.P. No.337 and 338 of 2013, filed by the
injured claimant and heirs of the deceased,
respectively.
2. The facts giving rise to the present Appeals can be
put succinctly as under :-
On 16.10.2013, the deceased Ashok Bhaichandbhai
Raval alongwith Sanjay Lilabhai and Ramesh
Bhaichandbhai were going to Siddpur from Varsila in
a rickshaw. The respondent No.2 was driving the
rickshaw in a rash and negligent manner and when
they reached a Nursery between Village Varsila-
Nodotri, the respondent No.1 - driver of Tractor
bearing Registration No.RJ-02-R-1687 came from the
opposite side in a rash and negligent manner and
dashed the rickshaw. The deceased Ashok
Bhaichandbhai Raval and Ramesh Bhaichandbhai both
sustained injuries over their bodies, were taken to
Siddhpur Government Hospital. Thereafter, both
were referred to Mehsana, the deceased Ashok
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succumbed to the injuries, whereas Ramesh
Bhaichandbhai took further treatment at Asha Surgical
Hospital, Mehsana.
3. Learned Advocate Mr. Kaash K. Thakkar submitted
that the Insurance Company of the rickshaw has been
erroneously exonerated by the learned Tribunal only
on the submission raised that the Insurance Policy
was a 'Liability Only' Policy. It is further submitted
that the fact had come on record that the injured
claimant and the deceased both were travelling in a
rickshaw as occupants. It is also submitted that the
learned Tribunal has committed an error by not
considering the fact that the rickshaw was public
service vehicle and would fall under the definition of
Section 2(3) of the Motor Vehicles Act, 1988
(hereinafter referred to in short as 'M.V. Act') and
even as per Section 147 of the M.V. Act, the policy
would cover the risk of the passengers of the public
service vehicle against the death or bodily injury
caused or arising out of use of vehicle in a public
place. Learned Advocate Mr. Kaash K. Thakkar has
placed reliance on the decision of the Division Bench
of this Court, decided on 16.02.2022 in First Appeal
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No.3949 of 2012, where the facts of the case was
examined to the effect that the deceased was
travelling in a TATA 407 and the vehicle had turned
turtle.
4. Having heard learned Advocates for the respective
parties, perused the records of the case. The
claimants have not challenged the compensation
awarded; the only challenge given is to the
exoneration of the Insurance Company of the
rickshaw. Sub-section (35) of Section 2 of the M.V.
Act is in connection with the public service vehicle
which is reproduced hereunder for ready reference :-
"Public Service Vehicle" means any motor vehicle
used or adapted to be used for the carriage of
passengers for hire or reward, and includes a
maxicab, a motorcab, contract carriage, and stage
carriage."
5. The requirements of the policy and limits of liability
has been clarified under Section 147 of the M.V. Act.
Sub-section (1) of Section 147 lays down the
conditions for mandatory provision to comply with
the requirement of Chapter XI of the M.V. Act
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specifying the limits of the liabilities. Relevant
portion of Section 147 of the M.V. Act is referred
hereinunder :-
"147. Requirements of policies and limits of liability.-
(1) In order to comply with the requirements of this
Chapter, a policy of insurance must be a policy which -
(a) is issued by a person who is an authorised insurer;and
(b) insures the person or classes of persons specified in
the policy to the extent specified in sub-section (2) -
(i) against any liability which may be incurred by him
in respect of the death of or bodily [injury to any
person, including owner of the goods or his authorised
representative carried in the vehicles] or damage to
any property of a third party caused by or arising out
of the use of the motor vehicle in a public place;
(ii) against the death of or bodily injury to any
passenger of a public service vehicle caused by or
arising out of the use of the vehicle in a public
place."
6. Here, admittedly the injured claimant and the
deceased claimant were travelling as passenger in a
rickshaw which is a public service vehicle. The
Policy which has been placed on record is a
Passenger carrying cum liability only Policy. The
very issuance of Policy clarifies that the policy was
for commercial use carrying passengers which covers
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the seating capacity of three. Thus, the policy covers
the risk of occupants. In view of the same, the
Insurance Company cannot deny the liability to pay
the compensation since the risk of the injured
claimant as well as the deceased is covered under the
Policy, who were travelling as passengers in the
rickshaw.
7. The learned Tribunal has attributed 20% negligence to
the rickshaw driver and 80% to the truck driver.
Since it is a matter of composite negligence, for the
claimants, so they would be entitled to recover the
amount from any of the tort-feasors.
8. As per the records, the rickshaw is insured with the
respondent No.4 - The United India Insurance
Company Limited. While no Insurance Company of
the Tractor is found to be a party to the litigation.
Thus, in view of the decision of the Hon'ble Apex
Court in case of Khenyei v. New India Assurance
Company Limited reported in 2015 (9) SCC 273, the
claimants are entitled to recover the amount from the
respondent No.4 as awarded by the learned Tribunal
alongwith the interest till the date of realization.
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The respondent No.4 - the Insurance Company in the
M.A.C.P. is thus permitted to recover the
proportionate amount of liability from the tractor
owner by initiating the execution proceedings.
9. It is directed that the compensation amount be
deposited before the learned Tribunal and the amount
be paid to the claimants after verification of their
identities, as per the ratio laid down in the judgment
and award of the learned Tribunal.
10. In view of the above, the Appeal is allowed and
the common judgment and award dated 12.04.2019
passed by the learned Motor Accident Claims Tribunal
(Auxiliary), Patan in M.A.C.P. No.337 and 338 of
2013 stands modified to the above extent. Record
and proceedings, if any, be sent back to the
concerned Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE
