Gujarat High Court
Godavariben Khimjibhai Parmar vs Ramesh Narshibhai Baldaniya on 12 February, 2025
NEUTRAL CITATION
C/FA/556/2018 ORDER DATED: 12/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 556 of 2018
With
R/FIRST APPEAL NO. 555 of 2018
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GODAVARIBEN KHIMJIBHAI PARMAR
Versus
RAMESH NARSHIBHAI BALDANIYA & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/02/2025
ORAL ORDER
1. The present First Appeals, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellants being aggrieved
and dissatisfied with the judgment and award dated 1.11.2017
passed by the Motor Accident Claims Tribunal, Rajula in Motor
Accident Claim Petition Nos.836 of 2011 and 835 of 2011.
2. At the time of accident she appellant Godavariben and
deceased Manishaben were travelling in tractor bearing
registration No. GJ.14.D.5842. When tractor bearing registration
No. GJ.14.D.5842 was coming from Kathiwadar Road to Dungar
and when it reached at the place of accident Respondent No. 1
drove the tractor bearing registration No. GJ.14.D.5842 in full
speed and rash and negligent manner and turned turtle besides
the road. That in the said accident deceased Manishaben
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sustained grievous accidental injuries and succumbed to it and
appellant Godavariben received injuries.
2.1 Legal heirs of deceased Manishaben has filed claim petition
No.835 of 2011 u/s 163A of the MV Act claiming total
compensation of Rs.5,11,000/- while the claimant Godavariben
has filed claim petition No.836 of 2011 u/s 166 of the MV Act
claiming compensation of Rs.3 lakh.
3. The learned Tribunal has granted compensation of
Rs.3,89,500/- and Rs.40,000/- in claim petition Nos.835 of
2011 and 836 of 2011 respectively with 9% from the date of
filing the claim petition till realization. However, the learned
Tribunal has exonerated the insurance company from liability to
pay compensation on the ground that deceased as well as
appellant Godavariben were sitting on mudguard of the tractor
having sitting capacity of one only and therefore, it is
fundamental breach of terms and conditions of the insurance
policy. The learned Tribunal has recorded findings in para 28
and 29 in the impugned judgment and award, which reads as
under:-
"....I have also perused aforementioned authorities cited
and relied by the Ld. Advocate for the insurance
company. It is main contention of the insurance
company that deceased as well as injured were
travelling on the tractor as an illegal passenger as they
have hired the vehicle. The said fact also reveals from
the cross-examination of the applicant No. 1 of Exh. 31.
In this regard, authority of New India Assurance Co.
Ltd. V/s. Durgi Devi. and others, reported in 2009 ACJ
1851 cited and relied by the Ld. Advocate for the
insurance company is quite applicable to this case,
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wherein it is held that, "Motor Vehicles Act, 1988,
section 147 (1) Motor insurance Tractor Passanger risk
Liability of insurance company Passanger/labourer
travelling on tractor sustained fatal injuries when the
vehicle met with accident Insurance company seeks to
avoid its liability on the ground that policy shows that
premium was paid only to cover the risk of driver and
risk of labourers or passangers was not covered -
Whether the Tribunal was justified in mulcting liability
on the insurance company - Held: no."
29. Further, the Ld. Advocate for the insurance
company has produced insurance policy at Exh. 29,
wherein the period of policy has been mentioned from
23/11/2010 to 22/11/2011 and dispute between
parties for insurance of the vehicle and period of the
same covering date of accident. The accident has
occurred on 08/06/2011 thus, the policy covers the
date of accident. Moreover, on perusal of the policy, it
reveals that the risk of owner cum driver, or paid driver
and conductor or cleaner was covered. Further seating
capacity mentioned 1 + 1 as mentioned in R.C. Book of
vehicle produced at Exh. 57. As per the say of the
claimants their deceased and injured daughters were
travelling on tractor as a labourer, hence it is proved
that they are not driver, owner, conductor or cleaner.
Thus, there is a clear cut breach of the terms and
conditions of the policy, for which this insurance
company cannot be held liable to pay the amount of
compensation to the claimants, accordingly insurance
company i.e. opponent No. 3 is exonerated from its
liability. Therefore, in the circumstances, I hold that
opponent Nos. 1 & 2 being driver and owner of
offending vehicle Tractor No. GJ-14-D-5842 are jointly
and severally liable to pay compensation to the
applicants."
4. The insurance policy is produced at Exh.29 and the period
of the insurance policy is commencing from 23.11.2010 to
22.11.2011. The policy is a comprehensive policy covering risk
of the date of the incident and also covering the risk of the driver
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as well as conductor or cleaner considering the sitting capacity
as 1 + 1 mentioned in the RC Book (Exh.57). In view of such,
the learned Tribunal believed that since the deceased
Manishaben was travelling as conductor, cleaner or labourer in
the tractor, exonerated the insurance company for fundamental
breach of terms and conditions of the insurance policy.
5. At this juncture, I may refer to the judgment of the Hon'ble
Apex Court in case of Shivaraj V/s Rajendra and another
reported in 2018 ACJ 2755 and another judgment in case of
V.Renganathan & Anr. Versus Branch Manager, United India
Insurance Company Ltd.& Anr., 2023 (0) ACJ 623, wherein the
Hon'ble Apex Court held as under:-
"5. We find no fault with the finding of the High Court
that the Insurance Company could not be held liable for
the payment of compensation in view of the judgment of
3-Judges' Bench of this Court in the case of New India
Assurance Co. Ltd. vs. Asha Rani & Ors. reported in
2003 (2) SCC 223. However, at the same time, we find
that in view of the settled position, the High Court
ought to have partly allowed the appeal. We may
gainfully refer to the observations of this Court in
similar facts at paragraph Nos.10 and 11 of the
Judgment of this Court in Shivaraj vs. Rajendra and
Anr. reported in 2018(10) SCC 432. As already
observed, the facts in the present case are similar to the
facts in the case of Shivaraj vs. Rajendra and Anr.
(supra).
6. In the present case also, the High Court ought to
have partly allowed the appeal preferred by the
Insurance Company and ought to have directed it to
pay the amount of compensation to the appellants and
granted liberty to recover the same from the tractor
owner.
7. We are, therefore, inclined to allow the appeal. We
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uphold the finding of the High Court that the
Respondent No.1-Insurance Company cannot be held
liable for payment of compensation. At the same time,
we direct the Respondent No.1-Insurance Company to
pay the compensation to the appellants-claimants as
determined by the learned Tribunal with interest as
specified in the order within three months from today
with liberty to recover the said amount from the owner
of the vehicle."
6. In view of above, even in case of fundamental breach of
terms and conditions of the insurance policy, since the claimant
or the deceased are third party, the claimants cannot suffer on
such technicalities to pay compensation whether by owner or
insurance company. The contract of policy on record is
comprehensive policy and insured the vehicle, risk of the owner
of vehicle is covered. Thus it is case to follow law laid down in
the case of Shivaraj (supra) and V.Renganathan (supra) to pass
order pay and recover.
7. As far as claimant Godavariben is concerned, she suffered
5% injury from the road accident and therefore, in view of
judgment of the Hon'ble Apex Court in case of Master
Mallikarjun V/s. Divisional Manager, National Insurance
Company Limited and Anr., rendered in Civil Appeal No.7139 of
2013, it would meet the ends of justice, if total compensation of
Rs.1 lakh instead of Rs.40,000/- awarded by the learned
Tribunal, is granted to claimant Godavariben.
8. For the foregoing reasons, following order is passed.
8.1 The First Appeal No.555 of 2018 is partly allowed. The
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order of exonerating the insurance company is maintained.
8.2 The impugned judgment and award is modified to the
extent that the insurance company at the first instance shall pay
and deposit amount of compensation including interest and cost
before the learned Tribunal within six weeks from today and it
shall be entitled to recover the same from the owner of the
vehicle on the strength of this judgment by executing it.
8.3 The First Appeal No.556 of 2018 is partly allowed.
8.4 The insurance company is directed to deposit the enhanced
amount of Rs.60,000/- with 9% p.a. interest from the date of
claim petition till its realization before the concerned Tribunal,
within a period of six weeks from the date of receipt of this order.
8.5 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 after fixing apportionment, if not
already fixed, by account payee cheque / NEFT / RTGS, after
proper verification and after following due procedure.
8.6 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.7 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
