Gujarat High Court

Oriental Insruance Company Ltd vs Heirs Of Decd. Raghavbhai Devabhai ... on 6 September, 2024

                                                                                                                 NEUTRAL CITATION




                             C/FA/3499/2013                                     JUDGMENT DATED: 06/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                             R/FIRST APPEAL NO. 3499 of 2013

                       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 ?

                       ==========================================================
                                         ORIENTAL INSRUANCE COMPANY LTD
                                                      Versus
                                HEIRS OF DECD. RAGHAVBHAI DEVABHAI RAJPARA & ORS.
                       ==========================================================
                       Appearance:
                       MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
                       MS VISHWA SHAH FOR NANAVATI ASSOCIATES(1375) for the
                       Defendant(s) No. 1.1,1.2,1.3,1.4,1.5
                       RULE SERVED for the Defendant(s) No. 2
                       ==========================================================

                           CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                          Date : 06/09/2024

                                                          ORAL JUDGMENT

1. The present appeal is filed by the appellant - Insurance

Company under Section 173 of the Motor Vehicles Act, being

aggrieved by and dissatisfied with the judgment and award

dated 13.8.2013 passed by the Motor Accident Claims

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Tribunal (Aux.), Rajkot in Motor Accident Claim Petition

No.653 of 2003, by which, the Tribunal has partly allowed

the claim petition by awarding Rs.3,04,000/- with 8% 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

17.8.2003 Raghavbhai Devabhai was travelling in a truck to

sell the guvar and other vegetables grown in his farm; and

he was sitting in the said truck no.GJ.3T.6138 to look after

his goods and the driver of the said truck was driving his

truck in excessive speed, negligently and rashly; that when

the said truck reached near village Kumbhala at distance of

3 km from Padiyad on Vicchiya road, the driver lost control

over the truck and the truck was over turned and therefore

Raghavbhai suffered grievous injuries and succumbed to the

said injuries. Therefore, the claimants filed the claim petition

claiming compensation.

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

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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 the said truck which is

insured goods carriage and also that the driver of the

insured truck was not holding licence to drive the insured

vehicle; that though the said defence is taken in the written

statement filed before the learned Tribunal, the learned

Tribunal has not considered the same and proceeded to pass

the impugned award holding the appellant-insurance company

to pay the amount. He submitted that the driver was holding

a licence of light motor vehicle whereas the offending vehicle

is a goods carried and is a light goods vehicle and therefore

the driver was not having a valid licence to drive the same.

He, therefore, prayed to allow this appeal and exonerate the

insurance company from paying the compensation.

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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

truck 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 offending truck-opponent no.1

was negligent for the accident. However, the learned Tribunal

has lost sight of the fact that the offending vehicle was a

goods vehicle and the deceased was travelling in the goods

vehicle as unauthorized passenger and the terms of the policy

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mention that the vehicle was only insured for carrying of

goods. In the FIR which was filed by one of the passengers

travelling in the insured goods carriage reveals that the

deceased was sitting on top-roof of goods carriage and

therefore, as per the ratio laid down by the Hon'ble Apex

Court in the case of National Insurance Ltd. V/s Cholleti

Bharatamma & Ors, reported in 2008(1) SCC 423 and the National Insurance Company Ltd. V/s Rattani reported in 2009(2) SCC 75, the owner of goods means only the person who travels in the cabin of the vehicle and the travelling

with goods itself does not entitle anyone to protection under

Section 147 of the MV Act. Therefore, it is a breach of terms

of policy and the insurance company cannot be held liable to

pay the compensation.

7. Further, it transpires that the learned Tribunal has also

lost sight of the fact that from the licence produced before

the learned Tribunal, the driver was possessing only a licence

to drive the light motor vehicles and not light goods vehicle,

which is the offending truck. Perusal of the insurance policy

and driving licence proves the same. Therefore, referring to

the decision of this Court in First Appeal No.3135 of 2008

dated 5.2.2013, wherein it is held as follows, the appellant-

insurance company cannot be held liable to pay the amount:

"8. In case before us, it appears that the driver driving the

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offending vehicle has not been given permission to drive heavy motor vehicles, but his license is limited to driving of light motor vehicles. Therefore, in the case before us, there was total lack of competence on the part of the driver of the offending vehicle to drive heavy motor vehicle. Such being the position, it is not a case of mere breach of technicality in the matter of license, but a case of incompetence to drive heavy vehicle resulting in failure to control the vehicle. I, therefore, find that in the case before me, the Insurance Company should not be held liable and should not be asked to bear the burden of paying the compensation on behalf of the owner of the vehicle. I am, therefore, of the opinion that the Award impugned should be modified only to that extent regarding the liability of the Insurance Company."

8. The facts of the case on hand are similar to the above

referred case. Considering the above and the facts and

circumstances of the present case and when there is breach

of the conditions of the insurance policy, the argument

advanced by learned advocate for the appellant is required to

be accepted and the insurance company is required to be

exonerated from the liability to make the payment.

9. In the judgment in the case of Shivaraj V/s Rajendra

and another reported in 2018 ACJ 2755, the Hon'ble Apex Court

has held in paragraph 10 as under:

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"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)."

10. However, in view of the ratio laid down by the Hon'ble

Apex Court in number of cases, 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.

Therefore, in view of the above, this appeal is required

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to be partly allowed.