w w w . L a w y e r S e r v i c e s . i n



Hiteshkumar Rameshbhai Patel v/s Rajendra Mataprasad Yadav


Company & Directors' Information:- RAJENDRA LIMITED [Strike Off] CIN = U99999KA1943PLC000306

Company & Directors' Information:- RAJENDRA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U17219TZ1948PTC000161

    First Appeal No. 2113 of 2005

    Decided On, 12 February 2019

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE B.N. KARIA

    For the Appellant: Paresh M. Darji, Amit V. Thakkar, Advocates. For the Respondents: R2, Sharmishta A. Dave, Advocate.



Judgment Text

(Oral)

1. The present appellant, who is the original claimant in Motor Accident Claim Petition No. 432 of 1996, has preferred this appeal being aggrieved and dissatisfied with the judgment and award dated 16.7.2004, Exh. 46, passed by the Motor Accident Claims Tribunal (Aux.), 3rd Fast Track Court, Navsari (for brevity, ‘the Tribunal’) granting compensation to the claimant to the tune of Rs. 1,86,950 together with interest @ 9% per annum from the date of the application with proportionate costs, holding liability of the opponent No. 1.

2. Short facts of the case may be referred as under:

2.1 On 28.5.1996 at around 11.30 a.m. minor Hiteshkumar and his friend as well as other relatives were travelling in a motor vehicle Tempo being registration No. GJ-15T-5959 as gratuitous passengers from Valsad to Unai. The tempo was being driven by the opponent No. 1 rashly and negligently breaking the traffic rules. Near the place of accident, the opponent No. 1 driver suddenly applied the brakes due to which, the tempo turned turtle. The appellant - claimant sustained sever injuries in his left hand, fourth finger of right hand and was treated at civil hospital,Valsad primarily and thereafter, at Mahavir Hospital, Surat as an indoor patient, where, during treatment, a portion of his left hand was amputated. That, the appellant - claimant was studying in 7th standard in primary school at Mogarwadi and was a brilliant student, participating in the extra activities of the school. That, the appellant had to suffer great pain, shock and agony due to the injuries; that, he would not be in a position to do any work with the help of his left hand as it was amputated and nor can he do any business or service due to the same. That, he would not be in a position to participate in any extra activities of the school nor able to do his daily routine activities. That, on account of financial loss caused to the applicant, a request was made by him to award the compensation to the tune of Rs. 3 lakh only from the opponents.

2.2 Notice was issued to the opponents by the Tribunal. The opponent No. 2 appeared before the Tribunal through his Advocate and filed its written statement vide Exh. 45 denying the contents and allegations made in the claim petition by the applicant. It was denied that the accident was occurred on account of bare negligence of the opponent No. 1, driver of the tempo. The injuries, as received by the appellant claimant, his inability in doing daily activities or disablement part as well as pain, shock and sufferings of the applicant, expenses and medical treatment were also not admitted by the opponent. It was further submitted that the tempo was a goods vehicle and was permitted to use only for transportation of goods. That, no passenger was permitted to travel in the goods vehicle. That, the applicant was travelling as a gratuitous passenger in a motor vehicle and there was a clear breach of the conditions imposed in the permit and therefore, no liability of the Insurance Company can be fastened by the Tribunal. That, as per the condition narrated in the insurance policy, the insured of the vehicle was not permitted to carry any passenger as a fare paying passenger. That, no risk of the fare paying passenger was covered by the opponent No. 2 nor any premium was received and therefore, no liability of paying the compensation could be fastened upon the opponent No. 2. Accordingly, it was requested to dismiss the claim petition preferred by the claimant.

2.3 The learned Tribunal, after recording the evidence of the either side, was pleased to partly allow the petition preferred by the claimant, holding the liability to pay the compensation, as aforesaid, of the opponent No. 1.

3. Heard, learned Counsel Mr. Paresh M. Darji for the appellant and learned Counsel Ms. Sharmishta A. Dave for the respondent No. 2. Though notice was served, the respondent No. 1 did not appear to contest the appeal and hence, no arguments were advanced.

3.1 The learned Counsel for the appellant has submitted that the impugned judgment and award passed by the Tribunal is contrary to evidence and against the record. It was submitted that the claim petition preferred by the applicant - appellant was required to accepted granting full claim of Rs. 3 lakh with interest @ 18% from the date of petition. That, in considering only 40% disability of the claimant, the Tribunal has erred as there was 85% disability as reflected from the certificate issued by the doctor. That, the Tribunal has also erred in taking only Rs. 15,000 per annum as income of the appellant - claimant for calculating the future loss of income. That, additional premium of the passengers was also recovered by the respondent No. 2 Insurance Company from the insured as reflected from the policy. The respondent No. 2 being Insurance Company of the motor vehicle, was liable to pay the compensation. That, the Tribunal has committed a grave error in not considering the liability of the Insurance Company in a particular fact of the case that no witnesses were examined by the Insurance Company before the Tribunal. In support of his arguments, the learned Counsel for the appellant has placed reliance on several decisions viz. (i) Manuara Khatun & Others v. Rajesh Kr. Singh & Others, reported in II (2017) ACC 476 (SC)=III (2017) SLT 203=2017 (3) Scale 93; (ii) Mallikarjun v. Divisional Manager, National Insurance Company Limited and Another, reported in (2014) 14 SCC 396 and (iii) decision of this Court in First Appeal No. 1410 of 2009, dated 7.4.2017.

4. On the other side, learned Counsel Ms. Dave for the respondent No. 2 has supported the reasonings and finding arrived at by the learned Tribunal awarding compensation to the original claimant and exonerating the respondent No. 2 from paying the compensation. Referring Section 147(1)(b)(i) of the MV Act, it was submitted that gratuitous passenger was clearly restricted to travel in the goods vehicle. It was further submitted that as per the policy, no additional premium of gratuitous passengers was recovered from the insured by the opponent No. 2. That, no risk of gratuitous passengers was covered by the Insurance Company. It was further submitted that additional premium was recovered by the Insurance Company for L.L. to non-fare paying passenger as per IMT 14 and that, no liability of the Insurance Company may be held by this Court and the Tribunal has rightly exonerated the respondent No. 2. The learned Counsel has further submitted that the appellant himself has consented to consider his permanent disability at 40% body as a whole and therefore, subsequently, no arguments could be permitted to submit that the disability assessed by the Tribunal was less after the consent given by the appellant - claimant himself. In support of her arguments, the learned Counsel has relied upon a decision of this Court rendered in First Appeal Nos. 246 and 247 of 2011 dated 9.2.2017. She has further relied on a decision of the Hon’ble Apex Court in the case of National Insurance Company Ltd. v. Rattani & Others, I (2009) ACC 417 (SC)=I (2009) SLT 549, rendered in Civil Appeal No. 7399 of 2008 and requested to dismiss the present appeal.

5. Having considered the facts of the case, submissions advanced by the learned Counsel for the respective parties and perusing the record of the Tribunal, it appears that as per the averments made by the appellant - claimant himself in the petition, he was travelling in the offending tempo as a fare paying passenger along with his friend and other relatives. If we refer the complaint of the offence registered with the police on 28.5.1996 by Shri Dharmendra Mataprasad Yadav, it appears that on account of marriage function of Shri Subhash Patel, 20-25 persons started travelling in the motor vehicle tempo from Valsad to Unai in the morning. The brother of the complainant informed him that at the place of accident, one jeep came from the opposite direction and his tempo was driven by him in excessive speed and did not take turn and turned turtle on the left side of road and 8-10 passengers sitting in the tempo sustained injuries and all of them were shifted to civil hospital for treatment and thereafter, the complaint was lodged by the complainant. From the record, it appears that, certificate of fitness, applicable in case of transport vehicles was issued by the competent inspecting authority on 23.3.1995. It was not in dispute of using the motor vehicle as a goods vehicle; goods carriage permit issued by the Regional Transport Officer, Valsad Region, Valsad in respect of the motor vehicle involved in the accident was also produced on record. From the policy issued by the Insurance Company in respect of the motor vehicle involved in the accident, it appears that additional premium of Rs. 90 was recovered from the insured on account of L.L. to non-fare paying passengers as per the IMT 14. Now, if we consider the deposition of the appellant himself vide Exh. 29, he has stated that he was travelling as a fare paying passenger in the offending tempo from Valsad to Unai. Indisputably, the appellant was travelling as a fare paying passenger in the motor vehicle used for transportation of goods. From the policy produced on record, it clearly transpires that no risk of gratuitous passenger was covered by the Insurance Company. There would be no liability on the part of the Insurance Company as risk of any fare paying passenger was not covered by the respondent No. 2. In case of Manuara Khatun & Others (supra), wherein, the victim was travelling in the offending vehicle as a gratuitous passenger and applicability of principle of pay and recover was discussed. The Hon’ble Apex Court has held that, the Insurance Company cannot be held liable to suffer the liability arising out of accident. However, direction was issued against the insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the insured in the same proceedings. Thereafter, this Court, in the decision in First Appeal Nos. 246 and 247 of 2011 has taken a view relying upon the decision rendered in First Appeal No. 2121 of 2008 that the direction to pay the amount first and then to recover such amount can only be passed by the Supreme Court exercising powers conferred under Article 142 of the Constitution of India to do complete justice. That, pay and recover order cannot be passed by any Court or Tribunal. Thus, it is clear that pay and recover order can only be passed by the Supreme Court exercising powers under Article 142 of the Constitution of India and no other Court or Tribunal including High Court can pass such an order. Considering the view taken by the this Court in different cases, no order of pay and recover can be passed against the respondent No. 2. As admittedly, the appellant was travelling as gratuitous passenger paying the fare for travelling from Valsad to Unai as per his admission in his deposition.

5.1 The learned Counsel for the appellant has relied upon the decision in the case of Mallikarjun (supra), wherein, in para 12, the Hon’ble Apex Court has observed as under:

“12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant facts, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs. 3 lakh up to 60% 4 lakh; up to 90%, Rs. 5 lakh and above 90%, it should be Rs. 6 lakh. For permanent disability up to 10%, it should be Rs. 1 lakh, unless there are exceptional circumstances to take a different yardstick.”

5.2 At the same time, it appears from the reasoning part on internal page 11 of the impugned judgment and award that the appellant himself has consented to treat his disability at 40% body as a whole. However, as per the certificate, his permanent partial disability was considered by the doctor at 80%. Admittedly, the appellant was minor at the time of accident and he has consented to treat his disability at 40% body as a whole. He has not examined the doctor concerned i.e. Dr. Vijay Khatri who has issued Disability Certificate in favour of the appellant. That, in absence of any evidence on the count of his disability and to prove the same by examining the doctor as well as consent by the applicant himself to consider disability at 40% body as a whole, now at a later stage, the applicant cannot be permitted to raise the issue of disability for considering the same at 85%. The Hon’ble Apex Court has certainly considered the issue in the decision in the case ofMallikarjun (supra), more particularly, in para 12, as extracted herein above, to consider assessment of compensation in case of children suffering from disability on account of vehicular accident. As per the said decision, up to 60% disability, Rs. 4 lakh was to be considered as appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. Here, the appellant himself has considered his disability at 40% body as a whole and therefore, it will be difficult for this Court to raise any percentage of disability as argued by the learned Counsel for the appellant and to consider the compensation amount raising it to Rs. 4 lakh. In the case of National Insurance Company Ltd. v. Rattani (supra), the victims of the accident were travelling in the truck as gratuitous passengers and therefore, the Hon’ble Apex Court viewed that the Insurance Company would not be liable to pay the compensation to the claimants. After the amendment of 1994 in the Motor Vehicles Act, the effect of the provisions contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative would remain the same. Although, the owner of the goods or his authorized representative would now be covered by the policy in insurance in respect of the goods vehicle but it was never the intention of the Legislature to provide for the liability of the insurer with respect to the passengers, especially, gratuitous passengers, who were neither contemplated at the time of contract of insurance was entered into nor was any premium paid to the extent of benefit of insurance to such category of people. Therefore, in the facts and circumstances of the case, this Court has no hesitation to hold that the appellant was travelling in the tempo as a gratuitous passenger and in that view of the matter, the respondent No. 2 herein would not be liable to pay the amount of compensation to the appellant.

5.3 In First Appeal No. 1410 of 2009, wherein, as per the facts of the case, the victim was travelling to carry his own bricks from Motagundana village to Dhoraji and since he had to load and unload the bricks at both the ends, he was travelling in the rickshaw as owner of the goods. A few suggestions in cross- examination were placed that there was no evidence to prove him as owner of the goods. This Court held that there would be no change in the situation more particularly, when other documentary evidence, which was otherwise admitted by the Insurance Company and disclosure by independent witness that the victim was travelling in the vehicle as an owner of the goods. Here, there was no case of the appellant from the beginning that he was travelling in the tempo as an owner of the goods. It is the case of the appellant in his claim petition as well as in his deposition that he was travelling in the tempo as a fare paying passenger and therefore, the benefit of amended provision under Section 147 (any person) would not be available to the appellant as per the facts of the case. The decision, under the circumstances, would not be helpful to the appellant.

5.4 In the decision relied upon by the learned Counsel for the appellant in the case of New India Assurance Co. Ltd. v. Shantaben Bava and Others, reported in 2010 (2) GLR 1179, as per the facts of the case, the passengers were travelling in goods vehicle in and after marriage party called ‘dhag’ along with goods of ‘Kariyavar’ and met with an accident. Relying upon a decision of the Hon’ble A

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pex Court in Satpal Singh’s case, I (2000) ACC 573 (SC)=X (1999) SLT 175=AIR 2000 SC 235, that, ‘under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers’, was overruled by the Apex Court’s decision in Asha Rani’s case, III (2002) ACC 753 (SC)=VII (2002) SLT 91=101 (2002) DLT 181 (SC)=(2003 (2) SCC 223), this Court held that, ‘considering that at the relevant time decision in Satpal Singh (supra), was holding the field and that decision in Asha Rani (supra), is given prospective effect, held, Insurance Company is liable’. It was further held that, ‘passengers can be said to be travelling as owner or representative of owner of goods, therefore, also Insurance Company is liable’. Facts of each case would require to be considered minutely. In the cited decision, the passengers sitting in the goods vehicle were treated as owner of the goods; ‘Kariyavar’ was treated as goods and the passengers as owner of the goods and therefore, liability of Insurance Company was fixed by the Court. Here, if we consider the facts of the case, the averments are clear on this aspect that the appellant was travelling as a gratuitous passengers and not as an owner of the goods. The appellant had paid the fare of the motor vehicle as admitted by him in his examination-in-chief before the learned Tribunal. The facts of the case and of the cited case are quite different and therefore, would not be helpful to the present appellant. 6. Thus, in view of the aforesaid discussion and observation, present appeal fails and is dismissed accordingly. The impugned judgment and award dated 16.7.2004 passed by the Motor Accident Claims Tribunal (Aux.), 3rd Fast Track Court, Navsari is hereby confirmed. R&P be returned back to the Tribunal forthwith. Appeal dismissed.
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