Gujarat High Court
Oriental Insurance Company Limited vs Dilipkumar Damodarbhai Kariya on 9 September, 2024
NEUTRAL CITATION
C/FA/3579/2011 JUDGMENT DATED: 09/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3579 of 2011
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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ORIENTAL INSURANCE COMPANY LIMITED
Versus
DILIPKUMAR DAMODARBHAI KARIYA & ORS.
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Appearance:
MR VC THOMAS(5476) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Defendant(s) No. 2,3,4,5,6,7
RULE SERVED for the Defendant(s) No. 1,8
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/09/2024
ORAL JUDGMENT
1. The present appeal is filed by the appellant - Insurance
Company under Section 173 of the Motor Vehicles Act, being
NEUTRAL CITATION
C/FA/3579/2011 JUDGMENT DATED: 09/09/2024
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aggrieved by and dissatisfied with the judgment and award
dated 12.5.2011 passed by the Motor Accident Claims
Tribunal (Main), Rajkot in Motor Accident Claim Petition
No.501 of 2007, by which, the Tribunal has partly allowed
the claim petition by awarding Rs.3,55,100/- with 9% 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 claim petition was filed by the claimant/s stating
that on 6.4.2007, the deceased was coming towards Rajkot by
driving his truck No.GJ.1X.7630 and when the said truck
reached at the place of accident at about 6.00 p.m., there
was crowd of buffaloes and to save that buffaloes, deceased
being the driver of the truck took his truck on wrong side at
that time, truck turned turtle and thereby deceased as well
as cleaner of said truck sustained injuries and deceased
ultimately succumbed to the injuries. Therefore, the claim
petition is filed for compensation.
2.2 The notices were served to the opponents. Opponent
no.2-insurance company filed the written statement contesting
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 insurance company has
assailed the impugned judgment and award mainly on the
ground that the insurance company should not have been
saddled with the liability to pay the compensation as FIR
has been filed by the new owner, who is not impleaded in
the claim petition and when the owner himself has stated
that the deceased was serving with him as driver of the
truck, then it should be presumed that he was paid driver of
the said truck; that the law is well settled that tort-feasor
cannot be a beneficiary of his own negligence; that the
deceased was not holding valid driving licence for transport
vehicle as on the date of accident, the insurance company
ought not to have been burdened with the liability and
therefore, he prayed to allow this appeal by exonerating the
appellant-insurance company from making the payment. He
relied on various decisions of the Hon'ble Apex Court in
support of his submissions.
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4. Per contra, learned advocate for the claimants has
submitted that the claim petition was filed under Section
163-A of the Act and therefore the claimants need not prove
the negligence. He submitted that the learned Tribunal has
considered the fact that the deceased lost his life while he
was on his duty as driver of said vehicle and that he was
holding valid licence and as he was engaged by the opponent
no.1-insured and risk of such driver is covered insurance
policy, the insurance policy was held liable to pay the
amount. He submitted that the learned Tribunal has passed
well reasoned order and there is no scope of interference
with the same and therefore, prayed to dismiss this appeal.
5. I have considered the submissions made at the bar and
perused the impugned judgment and award and the material
placed on record. The learned Tribunal has discussed in
detail from paragraphs 19 to 23 and thereafter arrived at the
conclusion that all the opponents are liable to pay the
compensation; on perusal of the insurance policy, it is
package policy and as per the terms and conditions of the
policy, the risk of the driver is covered; the RTO officer is
examined to prove the holding of licence by the driver of the
truck and in view of the judgment in the case of Mukund
Devangan V/s The Oriental Insurance Company Ltd. Reported
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C/FA/3579/2011 JUDGMENT DATED: 09/09/2024
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in AIR 2017 SC 3668 hyper-technical approach is not to be
taken at the time of deciding the claim petitions, more
particularly, paragraphs 42, 43, 45 and 46. This judgment
still holds the field.
6. Another point which is raised by the learned advocate
for the appellant is that the deceased driver is not the
employee of the respondent no.1-insured. In this regard, if
the discussion made by learned Tribunal in paragraph 21 is
seen, it is stated that the FIR is lodged by one Rajubhai
Dodiya and he has clearly stated that the offending truck is
purchased by him from Sushilbhai Damodarbhai Kariya and
the deceased Maheshbhai Mevada is serving with him as
driver of the said truck. If the RC book and policy are seen,
the name of the insured is recorded in the same and though
the respondent no.1's name is recorded, the name of new
owner-Rajubhai is also reflected in the same. Therefore, the
contention that there is no privity of contract with the new
owner is too technical and the name of new owner is
reflected in the address of respondent no.1 and therefore, the
learned Tribunal has not erred in holding the insurance
company liable to pay the compensation. This appeal is,
therefore, required to be dismissed.
7. In view of above, the following order is passed.
NEUTRAL CITATION
C/FA/3579/2011 JUDGMENT DATED: 09/09/2024
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7.1 The present appeal is dismissed with no order as to
costs.
7.2 The amount lying with the Tribunal and/or in the FDR,
pursuant to the order of this Court if any, shall be disbursed
to the claimant, along with accrued interest thereon if any,
by account payee cheque, after proper verification and after
following due procedure, within a period of six weeks from
today.
7.3 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
