Gujarat High Court
Oriental Insurance Co. Ltd. Bhavnagar vs Mohamadkha Mohabatkha Pathan on 1 October, 2024
NEUTRAL CITATION
C/FA/1426/2018 JUDGMENT DATED: 01/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1426 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ORIENTAL INSURANCE CO. LTD. BHAVNAGAR
Versus
MOHAMADKHA MOHABATKHA PATHAN & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR V A ZALA(11441) for the Defendant(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/10/2024
ORAL JUDGMENT
The seminal contention raised by learned advocate Mr.Nanavati for
the appellant - insurance company that the tribunal passed the judgment
and award against the dead person as the owner of the vehicle - opponent
no.1 died during the pendency of the claim petition as per Exh.49 and
Exh.50. He would further submit that heirs of the deceased - owner are
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C/FA/1426/2018 JUDGMENT DATED: 01/10/2024
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not brought on record and in view of that aspect judgment and award
passed against the dead person is nullity and a such cannot be held legal
an valid. Above submissions is made by learned advocate for the
appellant to allow this appeal.
2. On the other hand learned advocate Mr.Zala for the claimant would
submit that tribunal has not committed any error in passing the judgment
and award as the valid and effective insurance policy was in existence on
the date of the accident covering the risk of the offending vehicle. He
would further submit that the contract of the policy has to be treated as an
estate of the deceased owner and therefore amount of compensation can
be recovered from the estate of the deceased in such a way the insurance
company cannot contend that owner of the vehicle since deceased during
the pendency of the claim petition would absolve the liability of the
insurance company to pay the compensation.
3. Apt to note that apart from above contentions no other contentions
has been raised by the appellant. Sole contention of the insurance
company is that view of Exh.49 and Exh.50 since the owner of the
offending vehicle expired during the trial without being joined his legal
heirs and representatives passing of the judgment and award would be
against the dead person and as such is nullity. In view of the said
submissions, first let refer to Section 155 of the MV Act.
"155. Effect of death on certain causes of action.- Notwithstanding
anything contained in section 306 of the Indian Succession Act,
1925 (39 of 1925), the death of a person in whose favour a
certificate of insurance had been issued, if it occurs after the
happening of an event which has given rise to a claim under the
provisions of this Chapter, shall not be a bar to the survival of any
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cause of action arising out of the said event against his estate or
against the insurer."
4. Clear interpretation of Section 155 would be that if a person in
whose favour a certificate of insurance has been issued, died subsequent
to happening of an event, which has given rise to the claim under the MV
Act, shall not be a bar to the survival of any cause of action arising out of
the said event against the estate of against the insurer. If the owner if
expired subsequent to the road accident which has given rise to the claim
petition and if a valid certificate of insurance exists in favour of the
owner the claim petition would be decided against the insurer.
5. Issue arose for considering before the Division Bench of Karnataka
High Court in case the case of New India Assurance Company Ltd. v. H.
Siddalinga Naika & Ors., 1985 ACJ 1989 where the Division Bench
have not considered the effect of Section 155 of the MV Act while
negating the contention of the insurance company that the claim petition
would not survive if the legal representative of the owner are not brought
on record and observed thus:
"There is no substance contention SO in the raised because section
102, Motor Vehicles Act, states:
"Notwithstanding contained in anything 306, section Succession
Act, 1925, the death of person in whose favour a certificate of
insurance had been issued, if it occurs after the happening of an
event which has given rise to a claim under the provisions of this
Chapter, shall not be a bar to the survival of any cause of action
arising out of the said event against his estate or against the
insurer."
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In this case, the claim petition was filed already before the
Tribunal and insurance company had issued the policy. That being
so, the fact that the lorry dies, makes owner of the no difference.
The Tribunal has rightly passed award against the insurer. Hence,
there is no substance in this appeal and it is liable to be dismissed.
Accordingly it is dismissed. No costs in the appeal."
6. Similar issue arose before the co-ordinate Bench of this Court in
First Appeal No.3844 of 2022 decided on 25/04/2023 wherein after
surveying various judgments, in paragraph 12, it has been observed and
held thus:
"12. The law is very clear by way of provision under Section 155
of the Act, which makes it explicit that on the death of the insured
after the cause of action for filing the claim petition, the claim
petition cannot be thrown out merely because legal heirs of the
insured have not been impleaded as party to the claim petition.
Here in this case, the death of the insured has taken place only
after occurrence of the accident and not prior and at the time of
the accident, the certificate of insurance had been issued by the
appellant-insurance Company in favour of the deceased owner,
which was in force. Hence, the claim petition would be saved in
view of provision of Section 155 of the Act as the claimant can
proceed even against the estate of the insured or can further
proceed against the insurer. Thus, in view of the reasons given
hereinabove, non-impleadment of the legal heirs of the deceased
owner would not have any adverse effect on the merits of the case
and the insurer cannot escape the liability to pay the compensation
to the claimant on the ground that the legal heirs of the deceased
were not made parties to the claim petition. Hence, even in
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absence of the owner of the vehicle or the heirs and legal
representatives of the deceased owner of the vehicle, the claim
petition could proceed against the estate of the insured owner of
the vehicle and even against the insurer. Thus, objection SO raised
by the learned advocate for the insurance Company stands
rejected."
7. In view of the above settled position of law, the solitary contention
raised by learned advocate for the appellant would not survive. The claim
petition is maintainable even if the deceased owner of the offending
vehicle is died during the pendency of the trial and his heirs are not
brought on record. In view of Section 155 of the MV Act it could be
proceeded against the insurer which is holding legal estate of the
deceased owner in form of the policy certificate. Accordingly, the appeal
stands dismissed.
(J. C. DOSHI,J)
sompura
