Gujarat High Court
New India Assurance Company Ltd vs Rambhaben Jivrajbhai Alias Jivabhai ... on 5 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4672 of 2019
With
R/FIRST APPEAL NO. 5116 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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NEW INDIA ASSURANCE COMPANY LTD
Versus
RAMBHABEN JIVRAJBHAI ALIAS JIVABHAI KACHHADIYA & ORS.
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Appearance:
MR NAGESH C SOOD(1928) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/02/2025
ORAL JUDGMENT
Since issue involved in both the appeals is identical, upon
request of learned advocates for both the sides, both the appeals
are decided analogously by common judgment.
1. First Appeal No.4672 of 2019, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - insurance
company being aggrieved and dissatisfied with the judgment and
award dated 18.4.2019 passed by the Motor Accident Claims
Tribunal, Rajkot @ Gondal in Motor Accident Claim Petition
No.389 of 2007.
1.1 First Appeal No.5116 of 2019, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - insurance
company being aggrieved and dissatisfied with the judgment and
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award dated 1.1.2019 passed by the Motor Accident Claims
Tribunal, Rajkot in Motor Accident Claim Petition No.305 of
2008.
2. The short facts of applicants' case are that on 06/11/2006,
the deceased Jivrajbhai Jivabhai Bhutabhai and other
passengers were going for Pilgrimage in Bus No.GJ-5U8944 of
different places of India and Nepal. That when the said Bus
reached within the jurisdiction of village Bharatpur of Nepal, at
that time, the driver of Bus No.GJ-5U-8944 has driven the bus
at an excessive speed, rashly and negligent, so as to endanger
human life and dashed with the regional bus and caused the
accident, as a result of which, the deceased had sustained
sustained grievous injuries and ultimately succumbed to the
injuries. It is the say of the applicants that the accident has
taken place due to sole negligent driving of the driver of Bus
No.GJ-5U-8944.
2.1 Legal heirs of deceased Jivrajbhai @ Jivabhai Bhutabhai
have filed this claim petition No. 389 of 2007 to get
compensation against the opponents jointly and severally for
Rs.4,00,000/- with running interest @ 18% per annum u/s 166
of the MV Act. The learned Tribunal has granted compensation
to the tune of Rs.6,64,000/- with 9% interest.
2.2 Legal heirs of deceased Kantaben Chanabhai Sorathiya
have filed claim petition No.305 of 2008 to get compensation
against the opponents jointly and severally for Rs.5,00,000/- u/
s 166 of the MV Act. The learned Tribunal has granted
compensation to the tune of Rs.2,65,000/- with 9% interest.
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2.3 The appellant - insurance company have filed First
Appeals for complete exoneration on the ground that vehicle
involved in the road accident was plying outside geographical
area of India.
3 Since common question of law and fact arises, with the
consent of learned advocates appearing for the respective
parties, both the appeals are decided together.
4. The issue, which is involved in the First Appeals is that as
to whether the insurance company should be liable to pay
compensation if the road accident is taken place outside the
geographical area of India? In present case, accident took place
in Nepal. In such fact situation, whether the insurance company
should be held liable to pay compensation?
5. Learned advocate Mr. Nagesh Sood for the appellant raises
solitary contention that the road accident took place outside the
geographical area of India. He would further submit that the
insurance company in the terms and conditions of the insurance
policy has specifically stated in general exception that the
insurance company shall not be liable to pay compensation if the
road accident took place outside the geographical area of India.
He heavily pressed upon words "geographical area of India"
stated in the insurance policy and submitted that general
exception denied the insurance company to satisfy the liability of
the owner, if the vehicle is plying outside the geographical area
of India and met with an accident. He has referred to the
insurance policy and its terms and conditions, which is available
on record at various exhibits in the R & P of both the cases to
prove his contention.
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6. Distinguishing the judgment of Coordinate Bench of this
Court in case of Pragjibhai Bhagvanbhai Kanzariya and others
Vs. Rajubhai Ramsingbhai Parmar and others rendered in First
Appeal No.4778 of 2018 and other allied matters, he would
submit that in that case, since the Coordinate Bench of this
Court had no privilege to go through the terms and conditions of
the insurance policy, the findings arrived at by the Coordinate
Bench of this Court that the insurance company is liable to pay
compensation even if the vehicle is plying outside the
geographical area of India, would not apply to the facts of the
present case, as in that case, the terms and conditions of the
insurance policy was not brought to the notice of the Court that
the insurance company has not taken up the premium to take
risk of the owner even if it is plying outside the geographical area
of India and therefore, he would submit that the learned
Tribunal committed serious error in fastening the liability upon
the insurance company in paying compensation despite there is
fundamental breach of terms and conditions of the policy.
7. As far as First Appeal No.4672 of 2019 is concerned, it is
argued that for a person, who was 62 years old and received
death in the road accident, income of him has been assessed to
Rs.7500/- by the learned Tribunal is on the excessive side. It is
also argued that the original claimant No.2 in the said matter is
37 years old son and cannot be treated as dependent and
therefore, cannot be granted compensation for the death of his
father under the head of dependency.
8. Per contra, learned advocate Mr. Bhalodi and learned
advocate Mr. Hemal Shah appearing for the respective claimants
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in the respective appeals having referred to the judgment in case
of Pragjibhai Bhagvanbhai Kanzariya (supra), would submit that
the facts of the case are identical to the facts of the present case
and therefore, it is applicable to the facts of the present case as
well. It is further submitted that in view of GR 4 of the IMT as
well as in view of section 139(2) of the MV Act, 1988, until there
is specific exclusion clause made in the insurance policy, the
insurance company cannot limit its liability from paying
compensation to the victim of the road accident, where incident
took place outside the geographical area of India, as in the
present case Nepal.
9. Therefore, it is submitted that the learned Tribunal has
rightly decided the issue in favour of the claimants and the
impugned judgment and award need not be disturbed in these
appeals.
10. As far as claim petition No.389 of 2007 is concerned,
learned advocate Mr. Bhalodi submits that the deceased though
was 62 years old, he was agriculturist and having
agricultural/piyat land bearing survey No.16p1, 16p2 and 16p3
admeasuring hectare 2 are 38 and 77 sq mtr situated at village
Gondal. He would further submit that after the death of
deceased Jivrajbhai, his family members continued receiving
agriculture produce, so, how loss could be sustained on
supervisory skill to cultivate land. Hence, the learned Tribunal
is required to assess compensation for supervisory loss, which
has rightly been assessed. He would further submit that loss of
dependency cannot be measured only in terms of monetary
dependency. He argued this submission in regards to the
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argument of learned advocate Mr. Sood that the claimant No.2
being major son should not be treated as dependent upon the
income of the deceased. He would further submit that there are
various kinds of dependency, which includes emotional and
parental dependency. May it not be assessed under the loss of
dependency, but could be treated under the loss of estate. The
learned Tribunal has rightly decided this issue accordingly and
therefore, there is no need to differ from the impugned judgment
and award.
11. Against above contention, learned advocate Mr. Sood would
submit that the road accident took place in Nepal. The policy
limits its risk if the vehicle plies in the geographical area of India
or extra premium has been paid as per IMT 1 to cover risk of the
vehicle plies in country outside India. He referred to the
contents of leaf of the policy and terms and conditions attached
therewith.
11.1 Mainly upon above submissions, learned advocate Mr.
Sood submits to allow the appeals and exonerate the insurance
company.
12. At this juncture, I may refer to GR 4 of the IMT, which
reads as under:-
"GR.4. Extension of Geographical Area The
Geographical Area of Motor Policies may be extended to
include
a) Bangladesh
b) Bhutan
c) Nepal
d) Pakistan
e) Sri Lanka
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f) Maldives
13. Plain reading of the GR 4 indicates that there should be
specific exclusion of the geographical area, namely, a)
Bangladesh b) Bhutan c) Nepal d) Pakistan e) Sri Lanka and f)
Maldives, which have a road access from the Union of India and
in view of section 139(2) of the MV Act, the Union in India has
reciprocal arrangement for the purpose of facilitating and
regulating the services of motor vehicles operating between India
and any other countries for carrying passengers or goods or both
by road for hire or reward.
14. Learned advocate Mr. Sood though pinpointed every part of
the terms and conditions of the insurance policy could not or
rather failed to point out any exclusion clause, where area of a)
Bangladesh b) Bhutan c) Nepal d) Pakistan e) Sri Lanka and f)
Maldive as stated in GR 4 are specifically excluded from the
operation. Merely stating that risk is covered under the
geographical area of India cannot downsize the operation of GR 4
of the IMT. Reading of entire policy on record does not include
clause which demonstrates that coverage of risk would be
expired if vehicle plies in the countries connected by road with
India. Section 139(2) of the MV Act speaks of reciprocal
arrangement permitting to ply vehicle in some of the countries
connected by road with India. Learned advocate Mr. Sood failed
to establish that no reciprocal arrangement is extended between
India and Nepal not permitting to ply vehicle of one country to
ply in another country.
14.1 It is very unfortunate that the insurance company, which
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is taking up the premium and also issuing package policy, time
and again is raising technical issue to negate monetary
compensation to a person, who either lost life or limb in the
killer road accident. Such approach of the insurance company
is completely against the very purport of the MV Act. True it be
that sections 147 and 149 of the MV Act permit the insurance
company to raise legal defence, but taking of such defence
against GR 4 of the IMT, according to this Court, is not
permissible. Without referring GR 4 of the IMT, the argument is
canvassed that since the insurance company has taken or
purchased the risk of the vehicle only if the vehicle is plying
within the geographical area of India, is totally unacceptable
argument. Such argument is found to be not in consonance
with the propriety and discipline since the Coordinate Bench of
this Court has settled such issue in aforestated First Appeals in
case of Pragjibhai (supra) after referring to sections, 139, 146,
147, 149(3) and 166 of the MV Act as also the judgment of the
Punjab and Haryana High Court in case of Anil Kumar Vs. Roop
Kumar Sharma and another reported in 2019 ACJ 381, which
was also considered by the learned Tribunal while fastening the
liability upon the insurance company so also the judgment of
High Court of Karnataka in case of the Claim Manager, Royal
Sundaram Alliance Insurance Company Limited Vs. Mahadevi in
MFA No.5355 of 2016. The facts of the present case is of the
same parlance with the facts in case of Pragjibhai Bhagvanbhai
Kanzariya (supra). This Court failed to understand that why
repeatedly, such kind of arguments are raised wasting precious
time of the Court despite the issue is already settled.
15. In view of above, the submission made by learned advocate
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Mr. Sood is unacceptable and is accordingly discarded. The
second contention that the deceased being 62 years old could
not be assessed with monthly income of Rs.7500/- is also failed
to stand on its leg. Undisputedly, the deceased was agriculturist
having large chunk of land bearing survey No.16p1, 16p2 and
16p3 admeasuring hectare 2 are 38 and 77 sq mtr situated at
village Gondal. Said lands are piyat lands and therefore, the
agriculture produe could only be imagined. True it is that the
legal heirs or legal representatives may continue to receive the
agriculture produce from the aforestated land, but not as they
were receiving under the skill of the deceased. Therefore,
supervisory loss has to be assessed. The learned Tribunal
considering the fact that the deceased was agriculturist,
according this Court, the learned Tribunal has committed no
error in assessing Rs.7500/- as monthly income of the deceased.
16. Lastly, it was argued that major son having age of 37 years
cannot be treated as dependent on the income of the deceased
i.e. his father. This Court believes that such kind of argument is
made keeping in mind that the dependency should be measured
only in terms of money. Can a son be considered as dependent
of the father despite his earning separately?. Can we reduce the
term "dependency" to mere a monetary dependency?. The
answer is certainly not.
17. Worthy assistance can be taken from the judgment of
Hon'ble Apex Court in the case of National Insurance Company
Ltd. v/s. Birender and Ors [(2020) 11 SCC 356] , whether
married and major sons having gainful employment or earning
elsewhere can claim compensation and whether claim petition at
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their instance is maintainable was issue before the Hon'ble Apex
Court in the matter. Hon'ble Apex Court in para 12 to 14 has
observed as under :-
"12. The legal representatives of the deceased could
move application for compensation by virtue of clause
(c) of section 166(1). The major married son who is also
earning and not fully dependant on the deceased, would
be still covered by the expression "legal representative"
of the deceased. This Court in Manjuri Bera (supra) had
expounded that liability to pay compensation under the
Act does not cease because of absence of dependency of
the concerned legal representative. Notably, the
expression "legal representative" has not been defined in
the Act. In Manjuri Bera (supra), the Court observed
thus:
"9. In terms of clause (c) of subsection (1) of section 166
of the Act in case of death, all or any of the legal
representatives of the deceased become entitled to
compensation and any such legal representative can file
a claim petition. The proviso to said subsection makes
the position clear that where all the legal
representatives had not joined, then application can be
made on behalf of the legal representatives of the
deceased by impleading those legal representatives as
respondents. Therefore, the High Court was justified in
its view that the appellant could maintain a claim
petition in terms of Section 166 of the Act.
10. ...The Tribunal has a duty to make an award,
determine the amount of compensation which is just
and proper and specify the person or persons to whom
such compensation would be paid. The latter part
relates to the entitlement of compensation by a person
who claims for the same.
11. According to Section 2(11) CPC, "legal
representative" means a person who in law represents
the estate of a de ceased person, and includes any
person who intermeddles with the estate of the deceased
and where a party sues or is sued in a representative
character the person on whom the estate devolves on
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the death of the party so suing or sued. Almost in
similar terms is the definition of legal representa tive
under the Arbitration and Conciliation Act, 1996 i.e. un
der Section 2(1)(g).
12. As observed by this Court in Custodian of Branches
of BANCO National Ultramarino v. Nalini Bai Naique,
the definition contained in Section 2(11) CPC is
inclusive in character and its scope is wide, it is not
confined to legal heirs only. Instead it stipulates that a
person who may or may not be legal heir competent to
inherit the prop erty of the deceased can represent the
estate of the deceased person. It includes heirs as well
as persons who represent the estate even without title
either as executors or adminis trators in possession of
the estate of the deceased. All such persons would be
covered by the expression "legal represen tative". As
observed in Gujarat SRTC v. Ramanbhai Prabhatb hai
[(1987) 3 SCC 234 a legal representative is one who suf
fers on account of death of a person due to a motor
vehicle accident and need not necessarily be a wife,
husband, parent and child."
13. In paragraph 15 of Majnuri Bera, while adverting to
the provisions of Section 140 of the Act, the Court
observed that even if there is no loss of dependency, the
claimant, if he was a legal representative, will be entitled
to compensation. In the concurring judgment of Justice
S.H. Kapadia, as His Lordship then was, it is observed
that there is distinction between "right to apply for
compensation" and "entitlement to compensation". The
compensation constitutes part of the estate of the
deceased. As a result, the legal representative of the
deceased would inherit the estate. Indeed in that case,
the Court was dealing with the case of a married
daughter of the deceased and the efficacy of Section 140
of the Act. Nevertheless, the principle underlying the
exposition in this decision would clearly come to the aid
of the respondent Nos. 1 and 2 (claimants) even though
they are major sons of the deceased and also earning.
18. Yet, in another judgment of the Hon'ble Apex Court in case
of N.Jayasree Versus Cholamandalam Ms General Insurance
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Company Ltd., 2022 (14) SCC 712 , where the mother-in-law has
been considered dependent of the deceased - son-in-law, the
Hon'ble Apex Court after referring judgment in case of Gujarat
State Road Transport Corporation, Ahmedabad Vs. Ramanbhai
Prabhatbhai And Anr., 1987 3 SCC 234 as well as Montford
Brothers Of St. Gabriel And Anr. Vs. United India Insurance And
Anr., 2014 3 SCC 394 held that if legal representatives suffers
on account of the death of a person in a motor vehicle accident
should have a remedy for realization of compensation. The
relevant para of Hon'ble Apex Court is para 14 to 20, which
reads as under:-
"14. The MV Act does not define the term 'legal
representative'. Generally, 'legal representative' means a
person who in law represents the estate of the deceased
person and includes any person or persons in whom
legal right to receive compensatory benefit vests. A 'legal
representative' may also include any person who
intermeddles with the estate of the deceased. Such
person does not necessarily have to be a legal heir.
Legal heirs are the persons who are entitled to inherit
the surviving estate of the deceased. A legal heir may
also be a legal representative.
15. Indicatively for the present inquiry, the Kerala Motor
Vehicle Rules, 1989, defines the term 'legal
representative' as under: "Legal Representative" means a
person who in law is entitled to inherit the estate of the
deceased if he had left any estate at the time of his
death and also includes any legal heir of the deceased
and the executor or administrator of the estate of the
deceased."
16. In our view, the term 'legal representative' should be
given a wider interpretation for the purpose of Chapter
XII of MV Act and it should not be confined only to
mean the spouse, parents and children of the deceased.
As noticed above, MV Act is a benevolent legislation
enacted for the object of providing monetary relief to the
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victims or their families. Therefore, the MV Act calls for
a liberal and wider interpretation to serve the real
purpose underlying the enactment and fulfil its
legislative intent. We are also of the view that in order to
maintain a claim petition, it is sufficient for the claimant
to establish his loss of dependency. Section 166 of the
MV Act makes it clear that every legal representative
who suffers on account of the death of a person in a
motor vehicle accident should have a remedy for
realization of compensation.
17. It is settled that percentage of deduction for
personal expenses cannot be governed by a rigid rule or
formula of universal application. It also does not depend
upon the basis of relationship of the claimant with the
deceased. In some cases, the father may have his own
income and thus will not be considered as dependent.
Sometimes, brothers and sisters will not be considered
as dependents because they may either be independent
or earning or married or be dependent on the father.
The percentage of deduction for personal expenditure,
thus, depends upon the facts and circumstances of
each case.
18. In the instant case, the question for consideration is
whether the fourth appellant would fall under the
expression 'legal representative' for the purpose of
claiming compensation. In Gujarat State Road
Transport Corporation, Ahmedabad vs. Ramanbhai
Prabhatbhai and Anr., (1987) 3 SCC 234 this Court
while considering the entitlement of the brother of a
deceased who died in a motor vehicle accident to
maintain a claim petition under the provisions of the
MV Act, held as under:
"13. We feel that the view taken by the Gujarat High
Court is in consonance with the principles of justice,
equity and good conscience having regard to the
conditions of the Indian society. Every legal
representative who suffers on account of the death of a
person due to a motor vehicle accident should have a
remedy for realisation of compensation and that is
provided by Sections 110A to 110F of the Act. These
provisions are in consonance with the principles of law
of torts that every injury must have a remedy. It is for
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the Motor Vehicles Accidents Tribunal to determine the
compensation which appears to it to be just as provided
in Section 110B of the Act and to specify the person or
persons to whom compensation shall be paid. The
determination of the compensation payable and its
apportionment as required by Section 110B of the Act
amongst the legal representatives for whose benefit an
application may be filed under Section 110A of the Act
have to be done in accordance with wellknown
principles of law. We should remember that in an Indian
family brothers, sisters and brothers' children and
sometimes foster children live together and they are
dependent upon the breadwinner of the family and if the
breadwinner is killed on account of a motor vehicle
accident, there is no justification to deny them
compensation relying upon the provisions of the Fatal
Accidents Act, 1855 which as we have already held has
been substantially modified by the provisions contained
in the Act in relation to cases arising out of motor
vehicles accidents. We express our approval of the
decision in Megjibhai Khimji Vira v. Chaturbhai
Taljabhagujri, AIR 1977 Guj 195 and hold that the
brother of a person who dies in a motor vehicle accident
is entitled to maintain a petition under Section 110A of
the Act if he is a legal representative of the deceased."
19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and
Ors., (2007) 10 SCC 715 it was held that:
"7. ...12. As observed by this Court in Custodian of
Branches of Banco National Ultramarino v. Nalini Bai
Naique, 1989 Supp (2) SCC 275 the definition contained
in Section 2(11) CPC is inclusive in character and its
scope is wide, it is not confined to legal heirs only.
Instead, it stipulates that a person who may or may not
be legal heir, competent to inherit the property of the
deceased, can represent the estate of the deceased
person. It includes heirs as well as persons who
represent the estate even without title either as
executors or administrators in possession of the estate
of the deceased. All such persons would be covered by
the expression 'legal representative'. As observed in
Gujarat SRTC v. Ramanbhai Prabhatbhai3 a legal
representative is one who suffers on account of death of
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a person due to a motor vehicle accident and need not
necessarily be a wife, husband, parent and child."
20. In Montford Brothers of St. Gabriel and Anr. vs.
United India Insurance and Anr., (2014) 3 SCC 394 this
Court was considering the claim petition of a charitable
society for award of compensation on account of the
death of its member. The appellantsociety therein was a
registered charitable society and was running various
institutions as a constituent unit of Catholic church. Its
members, after joining the appellantsociety, renounced
the world and were known as 'brother'. In this case, a
'brother' died in a motor vehicle accident. The claim
petition filed by the appellantsociety seeking
compensation on account of the death of aforesaid
'brother' was rejected by the High Court on the ground
of its maintainability. This Court after examining
various provisions of the MV Act held that the
appellantsociety was the legal representative of the
deceased 'brother'. While allowing the claim petition it
was observed as under:
"17. A perusal of the judgment and order of the Tribunal
discloses that although Issue 1 was not pressed and
hence decided in favour of the appellant claimants,
while considering the quantum of compensation for the
claimants, the Tribunal adopted a very cautious
approach and framed a question for itself as to what
should be the criterion for assessing compensation in
such case where the deceased was a Roman Catholic
and joined the church services after denouncing his
family, and as such having no actual dependents or
earning- For answering this issue, the Tribunal relied
not only upon judgments of American and English
Courts but also upon Indian judgments for coming to
the conclusion that even a religious order or an
organisation may suffer considerable loss due to the
death of a voluntary worker. The Tribunal also went on
to decide who should be entitled for compensation as
legal representative of the deceased and for that
purpose it relied upon the Full Bench judgment of Patna
High Court in Sudama Devi v. Jogendra Choudhary,
AIR 1987 Pat 239 which held that the term "legal
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representative" is wide enough to include even
"intermeddlers" with the estate of a deceased. The
Tribunal also referred to some Indian judgments in
which it was held that successors to the trusteeship and
trust property are legal representatives within the
meaning of Section 2(11) of the Code of Civil Procedure."
19. In this contemporaneous situation and legal parlance, I am
failed to countenance the argument that son cannot be treated
as dependent on the father. Term, dependency cannot be
restricted to the monetary dependency. Yes, assessing money is
one form of compensating a person, who has lost his limb or life.
But, it cannot totally considered to be a monetary assessment of
dependency. Because, there is no other form of assessing
compensation except granting monetary award. The emotional
dependency or parental dependency cannot be wiped out under
the submission that a major son is earning independently and is
not monetarily dependent upon the father.
20. As observed herein above, emotional dependency or
parental dependency cannot be compensated in any other form
except in form of paying the monetary compensation.
21. In view of above and for the reasons stated herein above,
First Appeals sans merit. The arguments canvassed by learned
advocate Mr. Sood is unsustainable.
22. Accordingly, present First Appeals stand rejected. The
impugned judgment and award is sustained.
22.1 Since it was brought to the notice of the Court that
complete stay is operating on execution of the judgment and
award, the appellant - insurance company has not deposited any
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amount towards decretal award. Hence, the appellant -
insurance company is directed to deposit decretal amount
including interest uptil now and proportionate cost before the
learned Tribunal within six weeks from today. Upon deposit of
decretal amount, it shall be disbursed to the claimant/s. If
required, the learned Tribunal shall also pass order for
apportionment.
22.2 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
22.3 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
