Gujarat High Court
National Insurance Co Ltd vs Legal Heirs Of Decd. Muljibhai Nanabhai ... on 4 September, 2024
NEUTRAL CITATION
C/FA/1774/2012 JUDGMENT DATED: 04/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1774 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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NATIONAL INSURANCE CO LTD
Versus
LEGAL HEIRS OF DECD. MULJIBHAI NANABHAI PARMAR & ORS.
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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
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 4
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3,5,6,7,8
RULE SERVED for the Defendant(s) No. 9
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/09/2024
ORAL JUDGMENT
1. The present appeal is filed by the appellant - Insurance
Company under Section 173 of the Motor Vehicles Act, being
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C/FA/1774/2012 JUDGMENT DATED: 04/09/2024
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aggrieved by and dissatisfied with the judgment and award
dated 9.2.2012 passed by the Motor Accident Claims Tribunal
(Aux.), Kheda at Nadiad in Motor Accident Claim Petition
No.1344 of 2006, by which, the Tribunal has partly allowed
the claim petition by awarding Rs.2,71,000/- with 7.5% p.a.
interest to be paid to claimant/s, by holding opponents liable,
jointly and severally.
2. The facts of the present appeal are as under :
2.1 The claimants filed the claim petition stating that on
the day of accident on 28.12.2004, the deceased was
travelling in three wheeler tempo bearing registration
no.GJ.7TT.5838 going from village Chalali to Nadiad vegetable
market for selling vegetables on payment of fare with his
vegetables and vegetables of other persons and they all paid
the fare, which was decided. When the tempo was passing
near Valapura patia, in the sim of village Alindra, Dakor-
Nadiad road, at about 10.45 p.m., at that time, the opponent
no.1 was driving the tempo in rash and negligent manner
and in excessive speed and the opponent no.1 lost control
over the tempo due to which the tempo turtled and the
deceased sustained injuries and died during the treatment.
Therefore, the claim petition was filed by the claimants for
compensation.
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2.2 The notices were served to the opponents. Opponent
no.2-insurance company filed the written statement denying
the contents of the claim petition. The issues were framed by
the Tribunal. Oral as well as documentary evidence were led
before the Tribunal. After hearing the submissions made by
the rival parties, the Tribunal has partly allowed the claim
petition(s) and awarded compensation as noted above.
2.3 Hence, the insurance company has filed the present
appeal before this Court.
3. Learned advocate for the appellant - Insurance
Company has mainly assailed the impugned judgment and
award on the ground that the insurance company is not
liable to pay the amount of compensation in view of the fact
that the deceased was travelling in a three wheeler rickshaw
tempo for transporting vegetables on payment of fare and the
sitting capacity of the three wheeler rickshaw is only one
person i.e. driver and there is no sitting capacity/arrangement
for the passenger either as an owner of the goods or
otherwise; that the vehicle was having permit to carry one
passenger only i.e. the driver of the vehicle. He, therefore,
submitted that there is breach of terms of the policy and the
insurance company is not liable to pay the compensation on
the ground of breach of conditions of the policy and the
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learned Tribunal has erred in holding the appellant-insurance
company liable to pay the compensation to the claimant/s. He
also assailed the impugned judgment and award on the
ground of quantum by submitting that the learned Tribunal
has erred in calculating the compensation and awarded the
same on the higher side. He, therefore, submitted to allow
this appeal on both these grounds.
4. Per Contra, learned advocate for the claimant/s has
submitted that the learned Tribunal has not erred in passing
the impugned judgment and award and has considered the
settled legal position at the time of awarding the
compensation. Further, as the offending vehicle was insured
with the appellant-insurance company on the date of accident,
it cannot shirk from its responsibility to pay the amount to
the claimant/s and therefore, he prayed to dismiss this
appeal.
5. I have considered the submissions made by the
respective parties. I have perused the record and proceedings.
I have gone through the impugned judgment and award
passed by the Tribunal. I have also considered the pleadings
of the parties before the Tribunal.
6. The factum of accident, the involvement of the offending
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three wheeler rickshaw in the accident, the death of the
deceased, the vehicle being insured with the appellant-
insurance company are not disputed. It is also proved before
the learned Tribunal that the owner and driver of the
rickshaw-opponent no.1 was negligent for the accident.
However, the learned Tribunal has lost sight of the fact and
not considered the contentions raised in the written statement
of the insurance company before the learned Tribunal; that
admittedly, the deceased was travelling in a three wheeler
rickshaw tempo, which was a goods vehicle, on payment of
fare and the sitting capacity of the said rickshaw was only
one person i.e. driver, which is evident from the policy also
and admittedly four persons including the deceased were
travelling in the said rickshaw, due to which the driver lost
control over the rickshaw and the accident occurred.
Therefore, there is breach of terms and conditions of the
policy and in such cases, the insurance company is not liable
to pay the compensation. In view of the same, when there is
clear-cut breach of terms of the policy, the insurance
company cannot be held liable to indemnify the insured and
pay the compensation.
7. A reference to the judgment in the case of
Shivaraj V/s Rajendra and another reported in 2018 ACJ
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2755, the Hon'ble Apex Court has held in paragraph 10 as
under:
"10. At the same time, however, in the facts of the present
case the High Court ought to have directed the insurance
company to pay the compensation amount to the
claimant(appellant) with liberty to recover the same from the
tractor owner, in view of the consistent view taken in that
regard by this court in National Insurance Co.Ltd. V.Swaran
Singh, 2004 ACJ 1(SC); Mangla Ram v.Oriental Insurance
Co.ltd., 2018 ACJ 1300(SC); Rani v.National Insurance
Co.ltd., 2018 ACJ 2430(SC) and Manuara Khatun v.Rajesh
Kumar Singh, 2017 ACJ 1031 (SC). In other words, the
High Court should have partly allowed the appeal preferred
by the respondent No.2, Appellant may, therefore, succeed in
getting relief of direction to respondent No.2 insurance
company to pay the compensation amount to the appellant
with liberty to recover the same from the tractor owner
(respondent No.1)."
8. When there is a breach of the terms of the policy by
the owner of the vehicle, the insurance company cannot be
held liable for payment of compensation. However, as the
manifest object of the provisions of the MV Act is to ensure
that the party, who suffers injuries due to the use of the
motor vehicle, and may be able to get the damages for the
injuries sustained/death and the claimants cannot suffer for
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the technicalities of whether the owner/insurance company
should pay the amount. Though the insurance company is not
liable to pay the amount and exonerated from the liability,
as the vehicle is insured with the insurance company, the
insurance company shall first pay the compensation and it is
for the insurance company to recover from the owner, if it so
wishes.
9. In view of the above and in view of the fact that the
driver of the vehicle involved in this accident was holding
learner's licence at the time of accident and therefore there
is breach of conditions of the policy, the insurance company
cannot be held liable to pay the amount of compensation to
the claimant/s.
10. However, in view of the ratio laid down by the Hon'ble
Apex Court in number of cases, which are followed by this
Court in the above referred matter, the appellant-insurance
company shall first pay the amount of compensation to the
claimant/s and then it shall have the right to recover the
same from the driver-owner of the vehicle involved in the
accident by resorting to appropriate remedies available under
the law.
11. On the point of quantum, the learned Tribunal has
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considered the age of the deceased, his income, and also
considered the ratio laid down in the various judgments of
the Hon'ble Apex Court and discussed in detail in the
impugned judgment and award and thereafter awarded the
compensation, which is not required to be disturbed, as it is
just and proper, even on the principle of `just and fair'
compensation.
12. Therefore, in view of the above, this appeal is required
to be disposed by modifying the impugned judgment and
award accordingly.
13. Accordingly, this appeal is disposed of by modifying the
impugned judgment and award dated 9.2.2012 passed by the
Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in
Motor Accident Claim Petition No.1344 of 2006 to the extent
that the appellant-insurance company shall first pay the
amount of compensation to the claimant/s and then it shall
have the right to recover the same from the driver-owner of
the vehicle involved in the accident by resorting to
appropriate remedies available under the law.
14. The entire amount deposited/lying with the Tribunal
and/or in the FDR, pursuant to the order of this Court if
any, shall be disbursed to the claimant/s, along with accrued
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interest thereon if any, by account payee cheque, after proper
verification and after following due procedure, within a period
of six weeks from today.
15. Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
