Gujarat High Court
Oriental Insurance Co Ltd vs Himatbhai Valjibhai Chauhan on 7 February, 2025
NEUTRAL CITATION
C/FA/3200/2013 CAV JUDGMENT DATED: 07/02/2025
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Reserved On : 04/02/2025
Pronounced On : 07/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3200 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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ORIENTAL INSURANCE CO LTD
Versus
HIMATBHAI VALJIBHAI CHAUHAN & ORS.
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Appearance:
MS RV ACHARYA(1124) for the Appellant(s) No. 1
MR JAYSINH R JADEJA(6542) for the Defendant(s) No. 7
MR MEHUL S SHAH(772) for the Defendant(s) No. 1,2,3,4,5,6
MR. VISHAL P THAKKER(7079) for the Defendant(s) No. 8
RULE SERVED for the Defendant(s) No. 9
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - Insurance
Company claimant being aggrieved and dissatisfied with the
judgment and award dated 03.08.2013 passed by the Motor
Accident Claims Tribunal, Bhavnagar in Motor Accident Claim
Petition No.481 of 2008.
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2. Facts of the case are as under :-
2.1. On 21.02.2008 at 8.30 pm, deceased Himmatbhai was
going from village Talaja to village Tared by driving his
motorcycle No.GJ-24-8562 and when he reached near place of
accident, it met with an accident with stationary tractor No.GJ-
4-H-7006 and Trailer No.GJ-4-T-8484, which was parked
without any signal and hence, deceased sustain fatal injuries,
which resulted into his death.
2.2. The claimant filed claim petition under section 163A of MV
Act being MACP No.481 of 2008 claiming compensation of
Rs.6,00,000/- along with interest jointly and severally from the
opponents.
2.3. After appreciating evidence on record, learned Tribunal was
pleased to pass judgment and award in tune of Rs.4,17,500/-
with 7.5% interest from the date of claim petition till realization
and directed opponent nos.1 to 3 to pay compensation jointly
and severally.
2.4. Being aggrieved and dissatisfied with impugned judgment
and award dated 03.08.2013, opponent no.3 - Insurance
Company has filed present appeal.
3. Learned advocate Ms.R.V.Acharaya for the appellant -
Insurance Company submitted that learned Tribunal only on
hypothesis held that trailer cannot run without tractor and
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saddled liability on tractor owner and insurer, whereas, evidence
suggest that no tractor was lying attached with trailer at the time
of accident when deceased dashed with standing trailer. It is
submitted that there is no evidence on record which indicates
that Tractor No.GJ-4-H-7006 was attached with Trailer No.GJ-4-
T-8484 parked on the spot of accident, yet for no reasons,
tractor has been pulled into scene of accident and held full
negligent in causing road accident, which resulted into filing of
claim petition. It is submitted that presence of tractor has not
been noted in any of evidence be it oral or documentary, yet
liability was fasten upon tractor owner and insurer by learned
Tribunal and thus it is totally erroneous finding and deserve to
be set aside.
3.1. Upon above submissions, it is submitted to allow this
appeal.
4. Per contra, learned advocate Mr.Vishal Thakkar for
respondent no.8 Bhakabhai Ghelabhai Bharward registered
owner of trailer would argue that respondent no.8 has sold
trailer long back to some third party and that third party has
sold trailer to Mr.Narshibhai who was allegedly possessor of
trailer at the time of accident. It is further submitted that
learned Tribunal was required to pass award against respondent
no.9 - Narshibhai as he was possessor of vehicle on the date of
accident but the learned Tribunal believed that since Mr.
Bhakabhai Bharward is registered owner of the vehicle, he
should be held liable to pay compensation. Learned advocate
Mr.Thakkar referred to judgment of Hon'ble Apex Court in the
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case of Naveen Kumar v/s. Vijay Kumar reported in (2018) 3
SCC 1 to buttress contention that registered owner always
cannot be held liable to pay compensation when sufficient
evidence is on record to establish that vehicle was is possession
of particular person in capacity of owner.
4.1. Upon above submission, it is submitted to pass necessary
order.
5. Having heard learned advocates for both the sides, at the
outset, let me refer to facts and manner in which road accident
took place. According to claimant, deceased - Himmatbhai was
riding Motorcycle No.GJ-24-8562 was heading from Village
Talaja to Village Tared. Deceased when around 7.30 to 8.30 pm
reached near Kanaiya Ginning on Talaja Mahuva Highway,
dashed with Trailer No.GJ-4-T-8484 which was parked on the
road without any signals or brake lights which could be
visualized by driver of the vehicle coming from behind. Deceased
having received injuries succumbed to it. Claim petition was
filed under section 163A of the MV Act to get compensation of
Rs.6 lakhs with interest and cost.
6. By impugned judgment, learned Tribunal passed award
against opponent no.1 to 3 of the claim petition and exonerated
opponent no.4 who is allegedly joined as possessor of trailer and
ordered to pay jointly and severally sum of Rs.4,17,500/- with
interest at the rate of 7.5% p.a. from the date of petition till
realization.
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7. Opponent no.3 is insurer of tractor and legality of this
order has been challenged by the insurance company. Reasons
assigned by learned Tribunal to fasten liability on driver, owner
and insurer of tractor is prescribed in para 15 of the impugned
order, which reads as under :-
"15. It is argued in written arguments filed by LA for the
Opponent Insurance Company that as per panchanama
only the trailer was lying at the place of accident and
tractor was not lying there. It is also argued that tractor
was insured with them but trailer was not insured with
them and accident is occurred with the trailer and not with
the tractor insured with them hence it is prayed that claim
petition be dismissed against them. As against this, it is
argued by LA for the applicants in his written argument
that opponent No.1 who is the driver cum owner of the
tractor has indirectly admitted the accident and also
declared that his tractor was insured with opponent
Insurance Company and on request of opponent No.1, the
Insurance Company of tractor was joined as party
opponent. Now if we see the panchanama of place of
accident, then it shows that trailer was lying at the place of
accident and its one wheel was not there and it was lying
on one wheel only and said trailer trailer was loaded with
sand. Hence, it can be believed that a trailer loaded full
with sand would not run without the help of the tractor as
the trailer Bot a mechanically self-propelled vehicle.
Moreover, it was loaded with sand and one wheel was
absent at the time of pawing the panchanama which goes
to show that either wheel of the trailer would have been
punctured or due to any mechanical fault, it might have
been removed and tractor might have been used for getting
the wheel of trailer repaired/punctured and hence the
presence of tractor may not be shown in the panchanama.
Thus, it appears from the record that the offending vehicle
trailer was being used as an attachment of Tractor that
was insured with Opponent Insurance Company and when
the trailer is used as an attachment with tractor, it cannot
be said that tractor is not involved in this accident and
when the trailer was used as attachment of the offending
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vehicle tractor, it is deemed to be insured with the said
tractor, as the trailer itself is not a mechanically self-
propelled vehicle. So far as the ownership of trailer is
concerned, a detailed order is passed below Exh.42 on
dated 23.12.10. Moreover, as per RC Book of trailer Mark
32/4 & Certificate of RTO Mark 7/80, opponent No.2
Bhakabhai is the registered owner of said trailer but there
is some evidence in the form of affidavit of Bhupatbhai etc.
and other documentary evidence Mark 32/1 to 32/4 which
show that opponent No.4 Narshibhai was the
possessionary owner of said trailer but opponent No.4 has
denied the ownership of said trailer. It was the duty of the
Opponent No.2 to see that his vehicle is transferred in RTO
Office in the name of the person to whom he has sold his
vehicle but the same has not been done. Hence, Opponent
No.2 being registered owner of trailer with RTO Office, be
considered as the owner of said trailer and hence the claim
petition against Opponent No.4 Narshibhai Knabhai
Bambhaniya is required to be dismissed."
8. Reasons assigned by learned Tribunal state that trailer is
not self propelled vehicle and it was stopped because one of the
wheel was punctured. As per panchanama, mechanical fault has
stopped vehicle on the middle of road. Therefore, it is presumed
by learned Tribunal that trailer No.GJ-4-T-8484 has been
attached with tractor, it has carried trailer to spot of accident
but there is no evidence on record to say and establish that
trailer was attached with tractor. Finding of learned Tribunal is
completely on hypothesis and assumption. The claimant has not
produced any evidence except bare words on oath, panchanama
of spot does not show presence of tractor on the spot of accident.
No other evidence claims responsibility to prove that tractor was
present on the spot or accident or tractor has carried trailer to
the spot of accident or trailer was attached with tractor.
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9. It appears from the impugned judgment that learned
Tribunal has passed order below Exh.42 of the claim petition.
On perusal of Exh.42, it was application filed by respondent no.4
who was proposed possessor of trailer. The application was filed
to delete opponent no.4 - Narshibhai. Learned Tribunal referred
to various documents on record and gave tentative finding that
at the time of deciding application, it is difficult to decide the
issue and left the same to evidence to be recorded in trial and
continued presence of opponent no.4. Order passed below
Exh.42 never decided or proved that trailer was attached with
tractor.
10. As stated herein-above, there is no evidence led by either of
the party to prove that trailer was attached with tractor. In view
of such, I find that impugned judgment earmarking liability of
opponent no.1 and 3 being driver, / owner and insurer of tractor
is unsustainable finding and deserves to be set aside.
11. Learned advocate Mr.Vishal Thakkar for respondent no.8 -
opponent no.2 - Bhakabhai Bharwad intend to change liability to
pay compensation upon proposed respondent no.9 - original
opponent no.4. Learned Tribunal exonerated opponent no.4 from
liability to pay compensation and fasten liability upon original
opponent no.2 - Bhakabhai Bharwad of the claim petition to pay
compensation along with opponent nos. 1 and 3. Noticeably,
opponent no.2 - Bhakabhai Bharwad who has been held liable to
pay compensation jointly and severally along with opponent
nos.1 and 3 has not filed any appeal challenging his
responsibility to pay compensation.
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12. In wake of above reasons, argument of learned advocate
Mr.Vishal Thakkar that original opponent no.4 of the claim
petition beheld liable to pay compensation does not survive.
13. In the case of Dhondubai v/s. Hanmantappa Bandappa
Gandigude [2023 Live Law SC 725], Hon'ble Apex Court held
that tractor and trailer both are individual vehicle and both are
required to be insured. In the case on hand, as discussed herein
above, from the spot of accident, only trailer was found and
tractor cannot be brought in road accident without having
evidence only to pay compensation.
14. For the reasons stated herein-above, the appeal filed by
Oriental Insurance Company Ltd. deserves to be allowed and
accordingly it is allowed. Impugned judgment and award is
modified to the extent that besides opponent no.4, opponent
no.1 and 3 viz. Puspendrasinh Vala and Oriental Insurance
Company Ltd. are also exonerated from liability to pay
compensation. Finding of learned Tribunal holding opponent
no.2 - Bhakabhai Bharwad liable to pay compensation is
maintained. Decreetal amount including interest and cost
deposited by appellant - Insurance Company as per order dated
28.11.2013 and invested in FDR plus statutory amount of
compensation, if any, deposited by the appellant - Insurance
Company, shall be returned back to appellant - Oriental
Insurance Company Ltd. by the learned Tribunal with accrued
interest in FDR.
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15. Record and Proceedings be send back to learned Tribunal
concerned.
(J. C. DOSHI,J)
SATISH
