Gujarat High Court
National Insurance Company Ltd vs Sumaiya Wd/O Iliyas Ahmed Huseein ... on 27 November, 2025
NEUTRAL CITATION
C/FA/2069/2015 JUDGMENT DATED: 27/11/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2069 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
==========================================================
Approved for Reporting Yes No
==========================================================
NATIONAL INSURANCE COMPANY LTD.
Versus
SUMAIYA WD/O ILIYAS AHMED HUSEEIN JARGAL & ORS.
==========================================================
Appearance:
MR VC THOMAS(5476) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3,4,5
REFUSED SERVED (N)(10) for the Defendant(s) No. 6
RULE SERVED for the Defendant(s) No. 7
==========================================================
CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 27/11/2025
ORAL JUDGMENT
1. The captioned appeal is filed against the impugned judgment and
award dated 28.11.2014 passed by the learned Motor Accident Claims
Tribunal (Auxiliary), Panchmahal at Godhra in MACP No.2356/2003,
whereby the learned Tribunal partly allowed the claim petition and
awarded a sum of Rs.4,52,000/- along with interest at the rate of 9% per
annum from the date of filing of claim petition till its realization.
2. The succinct facts leading to file the present appeal by the
insurance company are that on 14.09.1997, the husband of original
claimant no.1, the father of original claimant nos.2 and 3 and the son of
original claimant nos.4 and 5, respondents herein was going to Bombay
NEUTRAL CITATION
C/FA/2069/2015 JUDGMENT DATED: 27/11/2025
undefined
from Godhra by driving truck bearing registration no.GJ-17-X-3567 at
moderate speed by following the traffic rules on the correct side of the
road and when he reached near Valsad, in the meantime, a trailer
bearing registration no.MH-04-P-4026 came from behind and without
blowing any horn, overtook the truck and thereafter he applied the break
suddenly and the truck and trailer dashed with each other. In the said
accident, the driver of the truck sustained grievous injuries and
succumbed to the injuries. It is also the case of the original
claimants/respondent nos.1 to 5 herein that at the time of accident, the
deceased was earning Rs.3,300/- per month as a salary and was aged
about 22 years.
3. Originally, the claim petition was filed under Section 166 of the
Motor Vehicles Act but subsequently, it was converted from Section 166
to Section 163-A of the Act. The appellant herein filed the written
statement at Exh.35 before the learned Tribunal and thereby denying
the averments made in the claim petition and prayed for rejection of the
claim petition.
4. The learned Tribunal after considering the evidence on record,
allowed the claim petition partly and awarded a sum of Rs.4,52,000/-
along with interest at the rate of 9% per annum from the date of filing of
claim petition till its realization.
5. Being aggrieved and dissatisfied, the insurance company of the
truck filed the present appeal.
6. Heard learned counsels for the parties.
NEUTRAL CITATION
C/FA/2069/2015 JUDGMENT DATED: 27/11/2025
undefined
7. Mr. V.C. Thomas, learned counsel appearing on behalf of the
appellant vehemently submitted that the deceased was the driver of the
truck, therefore, he cannot claim the compensation from his own
insurance company, as he was not the third party. Learned counsel for
the appellant placed the reliance on the judgment of Hon'ble Apex Court
rendered in the case of Ramkhiladi vs. The United India Insurance
Company and Anr. (Civil Appeal No.9393/2019), reported in 2020 (2)
SCC 550, decided on 07.01.2020. Relying upon the ratio of the
aforesaid judgment, learned counsel for the appellant submitted that the
claim petition is liable to be dismissed and the impugned judgment is
liable to be reversed.
8. Learned counsel alternatively submitted that the liability may be
apportioned between the appellant at one part and the respondent
nos.6 and 7 on the other part and the insurance company may be
permitted to satisfy the award at the first instance and thereafter be
permitted to recover the 50% of the amount of compensation from the
owner and the driver of the trailer involved in the accident.
9. On the other hand, Mr. Hiren M. Modi, learned counsel appearing
on behalf of the original claimants vehemently submitted that the issue
involved in the present appeal is no more res integra and the same has
been settled by the Full Bench of this High Court in the judgment
rendered in the case of Valiben Laxmanbhai Thakore (Koli) & Ors.
Vs. Kandla Dock Labour Board & Anr., reported in 2021 ACJ 2262.
He further submitted that in the petition filed under Section 163-A, the
issue of the negligence cannot be gone into and the question of
apportionment does not apply. Therefore, the present appeal is liable to
be dismissed.
NEUTRAL CITATION
C/FA/2069/2015 JUDGMENT DATED: 27/11/2025
undefined
10. Having considered the submissions of the learned counsels for
the parties and having gone through the record, it is to be noted that
initially the claim petition was filed under Section 166 of the Act and
thereafter, it was converted from Section 166 to Section 163-A of the
Act. It is settled proposition of law that the case filed under Section 163-
A, the defense of negligence of the insurance company is not required
to be looked into as held by the Honble Apex Court in the judgment
rendered in the case of Sunil Kumar & Anr. Vs. United India
Insurance Company Ltd., reported in 2019 (12) SCC 398.
11. So far as the question as to whether the driver of the offending
vehicle when he himself negligent for causing the accident, can claim
the compensation from the insurance company of his own offending
vehicle. The said issue is no more res integra and has been settled by
the Full Bench of this Court rendered in the case of Valiben Laxmanbhai
Thakore (Koli) (supra), wherein para 15, the Court has observed as
under:-
"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."
12. Now coming to the case on hand, it is not in dispute that the
deceased was the paid driver of truck bearing registration no.GJ-17-X-
3567. Perusal of the insurance policy of truck in question at Exh.23
NEUTRAL CITATION
C/FA/2069/2015 JUDGMENT DATED: 27/11/2025
undefined
would show that an additional premium of Rs.60/- was paid for two paid
drivers. Therefore, the risk of the deceased-driver is covered under the
policy issued by National Insurance Company Ltd. i.e. appellant herein.
Thus, in view of the ratio of the judgment rendered in the case of
Valiben Laxmanbhai Thakore (Koli) (supra), the submission raised by
the learned counsel has no substance and hence, deserves to be
rejected.
13. It is to be noted that the learned counsel for the insurance
company also relied on para 5.5 of the judgment of the Hon'ble Apex
Court rendered in the case of Ramkhiladi vs. United India Insurance Co.
(supra), the same is read as under:-
"5.5 It is true that, in a claim under Section 163A of the Act, there is no need
for the claimants to plead or establish the negligence and/or that the death in
respect of which the claim petition is sought to be established was due to
wrongful act, neglect or default of the owner of the vehicle concerned. It is
also true that the claim petition under Section 163A of the Act is based on
the principle of no fault liability. However, at the same time, the deceased
has to be a third party and cannot maintain a claim under Section 163A of
the Act against the owner/insurer of the vehicle which is borrowed by him as
he will be in the shoes of the owner and he cannot maintain a claim under
Section 163A of the Act against the owner and insurer of the vehicle bearing
registration No. RJ 02 SA 7811. In the present case, the parties are
governed by the contract of insurance and under the contract of insurance
the liability of the insurance company would be qua third party only. In the
present case, as observed hereinabove, the deceased cannot be said to be
a third party with respect to the insured vehicle bearing registration No. RJ
02 SA 7811. There cannot be any dispute that the liability of the insurance
company would be as per the terms and conditions of the contract of
insurance. As held by this Court in the case of Dhanraj (supra), an insurance
NEUTRAL CITATION
C/FA/2069/2015 JUDGMENT DATED: 27/11/2025
undefined
policy covers the liability incurred by the insured in respect of death of or
bodily injury to any person (including an owner of the goods or his authorized
representative) carried in the vehicle or damage to any property of a third
party caused by or arising out of the use of the vehicle. In the said decision, it
is further held by this Court that Section 147 does not require an insurance
company to assume risk for death or bodily injury to the owner of the
vehicle."
14. It is evident from the aforesaid extract of the judgment of Hon'ble
Apex Court that the parties are governed by the contract of insurance.
When the insurance company has undertaken the risk of the paid driver
by charging additional premium, the insurance company cannot be
permitted to say that the claim of the driver is not covered. It is evident
from the policy of the insurance that an additional premium of Rs.60/-
has been charged for paid driver to cover the risk of the paid driver,
therefore, now insurance company cannot be permitted to say that the
risk of the paid driver in question is not covered under the policy.
15. Thus, in view of the above discussions, the present appeal has
no merits, therefore, the same is liable to be dismissed and accordingly
dismissed. The learned Tribunal is directed to disburse the amount lying
deposited in FDR. The amount, if any, lying deposited with the registry
of this Court, the same shall be transmitted to the learned Tribunal
concerned forthwith.
16. Record & Proceedings, if any, be sent back to the learned
Tribunal concerned. No order as to costs.
(MOOL CHAND TYAGI, J)
HARSHIT
