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Bhanumatiben Naran & Others v/s Rajakbhai Yakubbhai Marwadi & Others

    First Appeal No. 1253 of 1984

    Decided On, 04 May 2017

    At, High Court of Gujarat At Ahmedabad


    For the Appellants: P.M. Thakkar, Advocate. For the Respondents: ------------

Judgment Text


1. Present is an appeal against the award passed by the Motor Accident Claims Tribunal, Nadiad dated 14th August, 1981 in Motor Accident Claim Petition No.431 of 1979 awarding compensation of Rs. 59,000/- to the appellants (original claimants) as against claim of Rs. 2 Lacs. Since the Insurance Company has been exonerated from payment of this amount, the appellants have come in appeal.

2. Brief facts giving rise to this appeal are that the deceased Naranbhai being owner of the truck, was travelling along with driver in the said truck during the midnight while going from Veraval to Surat. When the tr

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uck came near the railway crossing near Village: Gamadi, on the way the truck skidded and it went off the road and fell in the ditch causing serious injuries on the person of Naranbhai. Naranbhai was taken to SSG Hospital, Baroda where he succumbed to his injuries on 18.5.1979. This mishap has resulted because of rash and negligent driving on part of the driver of the truck Rajakbhai Yakubbhai.

3. In the Claim Petition before the Tribunal, it was averred that the deceased was carrying on business of transport of goods in a partnership with another person. The net income of the deceased was Rs. 10,000/- annually and after spending on his person, he was contributing Rs. 7500/- towards family.

4. The Tribunal taking into consideration the various aspects of the case, awarded Rs. 59,000/- as compensation. Driver along with co-owner were held liable to pay the compensation amount. However, the Insurance Company was exonerated. Aggrieved from this decision, the original claimants have come in appeal.

5. At the outset, learned counsel for the appellants has submitted that the Insurance Company could not have been exonerated from its liability to pay the compensation in view of clause 3 of the policy. According to which, the Insurance Company was liable to indemnify the third party. Since on the relevant date, the deceased was travelling in a truck, the Insurance Company was liable to indemnify the claim assessed by the Tribunal.

6. In support of this contention, he has relied upon a decision of Supreme Court in the case of Amrit Lal Sood & Anr. v. Smt.Kaushalya Devi Thapar & Others reported in 1998 (1) GLH 842.

7. Nobody has put in appearance on behalf of the respondents.

8. This Court has considered the submissions made by the counsel for the appellants.

9. Admittedly, in the present case, the claimant himself was the owner of the truck which was travelling with the driver at the relevant time.

10. However, the impugned judgment passed by the Tribunal is self explanatory as far as liability of Insurance Company is concerned. The Tribunal while dealing with this point regarding liability of the Insurance Company, has held as under:-

12. The clause which is known as driver's 'Indemnity clause - contained in the policy Exh.39 reads as under:-

"In terms of an subject to the limitation of the indemjity which is granted by this section to the insured the company will indenify any driver who is driving the Motor Vehicle on the insured's order with his permission provided that such driver (a) is not entitled to indemnify under any other policy.

(b) Shall as though he were the insured observe fulfil and be subject to the terms exceptions and conditions of this policy in so far as they can apply".

Now it is evident that the aforesaid condition forms part of Section 2 which pertains to LIABILITY TO THIRD PARTY. Obviously, therefore, this clause will apply when the driver is called upon to satisfy the award in case of third party only. The question then arises are the conditions mentioned in section 96(1) of the Act, fulfilled in the present case. Condition No.3 of the policy provided for indemnity to a driver. Under that condition, the company is bound to indemnify a driver who is driving the motor car on insured's order or with his permission provided that such driver is not entitled to indemnity under an other policy and such driver shall as though he were the insured observe, fulfil and be subject to the terms and conditions of this policy in so far as they can apply. In case where the vehicle is not used by passengers or reward or by reason of or in pursuance of a contract of employment, it is obligatory that the policy should cover the risk of liability infect of the death of or the bodily to persons being carried in or upon the vehicle.

11. The judgment relied upon by learned counsel for the appellants cannot be applicable in view of the law laid down by the Apex court.

12. Hon'ble Supreme Court in the case of Dhanraj v. New India Assurance Co. Ltd. and another reported in 2005 ACJ 1, while exonerating the Insurance Company has held as under:-

"9. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi, 1998 ACJ 121 (SC), it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured, i.e. an owner of the vehicle has no liabilty to a third party the insurance company has no liability also.

10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs. 4,989/- paid under the heading 'own damage' is for covering liability towards personal injury. Under the heading 'own damage', the words 'premium on vehicle and non-electrical accessories" appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance".

13. In view of the law laid down in the aforementioned judgment, the Insurance Company cannot be held liable to indemnify the claimant being owner of the vehicle. This Court is not in conformity with the arguments of learned counsel for the appellants. There is nothing wrong with the judgment passed by the Tribunal and accordingly, this appeal being devoid of any merit, is dismissed.

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