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FA/582/2000 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 582 of 2000
With
CIVIL
APPLICATION No. 4871 of 2000
=========================================================
PRATAP
& CO. - Appellant(s)
Versus
VALA
KARMASHI & 2 - Defendant(s)
=========================================================
Appearance
:
MR
RC KAKKAD for
Appellant(s) : 1,
None for Defendant(s) : 1,
MR KETAN S PATEL
for Defendant(s) : 1.2.1, 1.2.2,1.2.3
RULE SERVED for
Defendant(s) : 2,
MR KK NAIR for Defendant(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 01/12/2008
ORAL
ORDER
1. Heard
learned advocate Mr.R.C.Kakkad for the appellant, learned advocate
Mr.K.S.Patel for respondents claimants and learned advocate Mr.Nair
for respondent No.3. Rule is served to respondent No.2 but, no
appearance is filed by him.
2. Present
appeal is filed by Insured ? M/s.Pratap & Co. through its
partner Shri N.K.Bhattiya, challenging the award passed by claims
Tribunal in MACP No.599 of 1992 dated 18.2.2000 whereby the claims
Tribunal has awarded Rs.84,000/- with 12% interest to be paid by
appellant.
3. Learned
advocate Mr.R.C.Kakkad submitted that claims Tribunal has committed
gross error in exonerating the Insurance Co. from the liability. He
submitted that insurance policy was obtained for Tractor
No.GJ-10-9996 and at the date of accident, the insurance policy was
in existence. Therefore, it was a legal obligation under the contract
to pay the compensation to the labourer, who died in the accident,
which occurred on 3.8.1992. Therefore, according to him, the
Insurance Co. is liable for the payment of compensation and claims
Tribunal has committed gross error in exonerating the Insurance Co.
from its liability.
4. Learned
advocate Mr.Nair appearing for respondent No.3 Insurance Co.
submitted that deceased Ranmal Karamshi, who was the labourer, going
in the trolley attached to the tractor and because of rash and
negligent driving of opponent No.1 driver, the accident took place
and looking to the policy Exh.32, the tractor as well as trolley, the
Insurance Co. is not liable to pay compensation because labourers are
not included in the insurance policy except 3rd party and
driver of tractor. Therefore, he specifically raised contention that
labourers those who are sitting in the trolley, they are not included
in the Insurance policy and no additional premium was paid by
insured. Therefore, the Insurance Co. has rightly been exonerated by
the claims Tribunal. For that, according to him, the claims Tribunal
has not committed any error which requires interference by this
Court. He relied upon the decision of Apex Court in case of United
India Insurance Co. Ltd. v. Serjerao and others reported in AIR 2008
SC 460 wherein it is held that labourers travelling in
tractor-trolley, the Insurance Co. is not liable.
5. I
have considered the submissions made by learned advocates appearing
for the respective parties and also perused the award passed by
claims Tribunal. It is necessary to note one important fact that
present appellant had remained absent before the claims Tribunal, no
reply was filed, no contention raised before the claims Tribunal and
no evidence was led in support of his defence before the claims
Tribunal. Therefore, practically, for challenging the award has no
meaning and purpose by insured. However, under Section 173 of the MV
Act the insured covered by definition of ‘aggrieved persons’ and
therefore, he can file the appeal. Therefore, the present appeal
filed by appellant is considered by this Court in light of aforesaid
facts.
6. The
accident occurred on 3.8.1992 where one Ranmal had expired and
thereafter, his father has filed this application, who also died on
5.12.1995 and therefore, his legal heirs were joined as party. On
3.8.1992, Ranmal Karamshi was working as labourer, travelling in
tractor-trolley and at that time, because of rash and negligent
driving of tractor driver, the accident occurred and labourer died.
7. Before
the claims Tribunal, the Insurance Co. has filed reply and also cited
certain decisions. Thereafter, issues were framed vide Exh.9 and
thereafter, it has been examined by claims Tribunal. The claims
Tribunal has considered the question of liability in Para.9. The
Trolley registration No.GH-10-T-3332 and RC book of trolley is
produced at Exh.29. The tractor and trolley both are separate
vehicles. Present appellant who is the owner of tractor and trolley
and both the vehicles were insured with respondent No.3. The
certified copy of policy was produced at Exh.37. Looking to the
policy of tractor and trolley where except driver, no premium was
paid by insured in favour of labourer. Therefore, in tractor and
trolley except driver, no risk is covered. The insured has paid only
Rs.15/- for the driver being additional amount and therefore, looking
to the policy, only risk of driver is covered and rest of labourers
are not covered and on that basis, the claims Tribunal has considered
Exh.37. According to policy, risk of labourers are not covered and
therefore, the Insurance Co. is not liable to pay the compensation.
The labourers cannot consider to be a 3rd party and on
that basis, the award is passed by claims Tribunal. Before the claims
Tribunal, insured was not able to point out that some additional
premium covering the risk of labourers paid by him. The claims
Tribunal has considered the certified copy of insurance policy Exh.37
and thereafter, come to conclusion that risk of labourers are not
covered and therefore, insured is liable and not the Insurance Co.
8. Therefore,
according to my opinion, the contention raised by learned advocate
Mr.R.C.Kakkad cannot be accepted in light of the aforesaid documents
and discussion made by claims Tribunal. Therefore, according to my
opinion, there is no substance in the present appeal. Accordingly,
present appeal is dismissed.
9. If
the amount deposited for the purpose of this appeal is lying with the
Registry of this Court, same shall be transmitted to the claims
Tribunal concerned forthwith.
10. In
view of the order passed in main First Appeal, no order is required
to be passed in CA No.4871 of 2000 and same is disposed of
accordingly.
(H.K.RATHOD,J.)
(vipul)
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