Atumbiya Daluben Leraji @ Gelaji vs Rameshkumar Sampatrajji Mali
2025 Latest Caselaw 2807 Guj

Gujarat High Court

Atumbiya Daluben Leraji @ Gelaji vs Rameshkumar Sampatrajji Mali on 7 February, 2025

                                                                                                                NEUTRAL CITATION




                              C/FA/1085/2018                                    ORDER DATED: 07/02/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 1085 of 2018

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                                            ATUMBIYA DALUBEN LERAJI @ GELAJI
                                                         Versus
                                          RAMESHKUMAR SAMPATRAJJI MALI & ORS.
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                       Appearance:
                       VIRAL K VASHI(8220) for the Appellant(s) No. 1
                       MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
                       MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
                       RULE SERVED for the Defendant(s) No. 1,3
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                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                            Date : 07/02/2025

                                                             ORAL ORDER

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellants - original claimants being aggrieved and dissatisfied with the judgment and award dated 19.04.2017 passed by the Motor Accident Claims Tribunal, Patan in Motor Accident Claim Petition No.361 of 2011.

2. Brief facts of the case are as under:

2.1 On 02.09.2011, deceased - Thakor Chenaji Leraji who was serving in Banas Dairy as driver of Tanker was carrying the milk to one place and when it reached near the spot of accident, one Truck No.RJ-22-GA-2201 came rashly and negligently and dashed with tanker from wrong side, due to which deceased received serious injuries and thereafter died.

NEUTRAL CITATION

C/FA/1085/2018 ORDER DATED: 07/02/2025

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3. Learned advocate Mr.Vashi for the appellants - claimants assailed impugned judgment on the ground that the Tribunal has committed serious error in attributing 60% negligence to the deceased after noting that other offending vehicle - Truck was stationary on the wrong side of the road and tanker driver - deceased dashed with vehicle parked on the wrong side. He would further submit to first correct finding of learned Tribunal regarding contributory negligence. It is submitted that deceased was driver of tanker and his premium was purchased by owner and therefore, insurance company of tanker was liable to pay compensation equal to negligence of the deceased. Learned advocate for the appellants has relied on judgment of Full Bench of this Court in the case of Valiben Laxmanbhai Thakore v/s. Kandla Dock Labour Board [2022 (1) GLR 440].

3.1. Mainly on above submissions, it is submitted to pass necessary orders.

4. Learned advocate Ms.Nanavati for respondent no. 4 - Reliance General Insurance company fairly submitted that owner of tanker has purchased risk of driver and in view of that insurance company is liable to satisfy the award against owner of the tanker.

5. Learned advocate Mr. Rathin Raval for respondent no.2 - Shree Ram General Insurance company submitted that learned Tribunal has righly assessed the issue of negligence and submitted to dismiss the appeal qua issue of negligence.

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                              C/FA/1085/2018                                           ORDER DATED: 07/02/2025

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6. Apt to note that the Motor Vehicle Act, 1988 is a beneficial piece of Legislation. The concept of just and fair compensation is integral and seminal to the MV Act. The compensation to be awarded under the principle of just and fair compensation to the injured of the road accident or the legal representative/s of the deceased person is based on the principle of fairness, reasonableness and equability. Anguish of the heart or for mental turbulence being consequential result of the road accident cannot be actually compensated, but the quint essentiality lies in adopting holistic and pragmatic view to the computation of the compensation for the loss sustained, which is to be in the realm of realistic approximation. Although exact or perfect arithmetical calculation of compensation for reparation of the loss arrived from the road accident is almost impossible. The Tribunal is bestowed with duty to make an endevour to award just compensation regardless of the amount claimed by the claimants. The determination of the quantum of compensation therefore, must be liberal and not niggardly since the law values life and limb in a free country in generous scale. Needless to state that money may be awarded, so that something tangible may be procured to reach something else of the like nature, which has been destroyed or lost, but money cannot renew physical frame that has been battered and shattered being a result of the road accident. Yet Tribunal to endavour to bring back victim to stage of pre-road accident as far as possible Thus, the award must be reasonable and cannot be assessed with moderation though it cannot at the same time be pity and what could be granted must be just, fair and equitable compensation.

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                              C/FA/1085/2018                              ORDER DATED: 07/02/2025

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7. Having heard learned advocates for the parties, what could be noticed that despite truck was stationary and that too on wrong side of the road, learned Tribunal ignoring provisions of sections 122, 126 of MV Act read with Rule 15 of the Road Regulations, 1989 marked liability of 60% to the deceased who was driver of the tanker at the relevant time. Finding of the learned Tribunal is erroneous and is required to be rectified by concluding that driver of both the vehicles are equally negligent in causing road accident. There is no dispute that deceased was driving tanker as paid driver. Owner of the tanker has purchased risk of the driver and premium is charged towards legal liability of paid driver. In the case Valiben (supra), this Court has observed in para 13 and 15 as under :-

"13. Thus, when the owner of a vehicle pay additional premium and same is accepted by the Insurance Company, liability of the Insurance Company gets extended under the Motor Vehicles Act. Section 147 of the Act clearly prescribes for statutory liability to cover risk of paid Driver and Conductor under the Insurance Policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the Insurance Company. Thus, the risk of paid Driver and Conductor would be covered under the Insurance Policy. Only when the additional premium is not paid, liability would be as per the Employees Compensation Act, 1923 and in such cases, compensation would be computed as prescribed under the Act which is limited to the extent provided under provisions of the Act. However, when owner pays additional premium to cover the legal liability of his paid driver and conductor to the Insurance Company, as such, the Insurance Company is enlarging the scope for unlimited liability for payment of compensation, when additional premium is accepted. The liability of the Insurance Company gets extended and it has no right to raise issue of self negligence or otherwise of

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C/FA/1085/2018 ORDER DATED: 07/02/2025

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the such class of the driver of the Insured vehicle. By accepting additional premium as per the IMT 28, the Insurance Company expressed its willingness to extend its liability under the Clause of Legal Liability to the Paid driver and conductor as envisaged under Section 147 of the Act. Thus, in our opinion, Insurance Company has no legal right to avoid its legal liability under the indemnity clause arising from the contract of insurance towards the insured - owner of such classes of vehicles.

15. In our opinion, by accepting additional premium, the Insurance Company indemnifies the owners for paid Driver and / or Conductor and risk of Driver / Conductor is covered under it. Upon death or injury caused to the paid Driver and / or Conductor, the Insurance Company would be liable to satisfy such claim irrespective of the self negligence. Thus, the observations made by the Division Bench in the case of Saberabibi Hisammiya Umarvmiya & Anr (supra) lays down the correct law. Reference is thus, answered accordingly."

8. Applying above ratio, in the present case tanker owner and insurer of tanker are liable to pay compensation of 50% being self negligence of the deceased in causing road accident. Claim petition was filed by parents of the deceased viz. Atumbiya Leraji @ Gelaji Kumaji and Atubiya Daluben Leraji @ Gelaji. During pendency of proceedings, father of the deceased expired. Proceedings of claim petition has been continued by mother.

8. In view of above, the finding of learned Tribunal in regard to negligence of both the vehicles is calculated to 50% each. Opponent nos.3 and 4 of the claim petition are also held liable to pay compensation to the extent of negligence of deceased.

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                                C/FA/1085/2018                            ORDER DATED: 07/02/2025

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9. For the foregoing reasons, the appeal is partly allowed. Total compensation awarded by the learned Tribunal in tune of Rs. 12,48,300/- is maintained. Opponent no.1 and 2 as well as opponent nos.3 and 4 of the claim petition are directed to deposit 50% of said amount being their share with interest at the rate of 9% p.a. from the date of institution of claim petition till realization within a period of eight weeks from the date of receipt of this order. If respondent no.2 - Shree Ram General Insurance Company has deposited any amount towards compensation, it shall be adjusted while depositing final amount of compensation.

10. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.

11. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. Record and proceedings be sent back to the concerned Tribunal, forthwith.

(J. C. DOSHI,J) SATISH