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FA/4558/2008 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4558 of 2008
To
FIRST
APPEAL No. 4560 of 2008
=========================================================
NEW
INDIA ASSURANCE CO. LTD. - Appellant(s)
Versus
ZALABHAI
HAJURBHAI DAMOR & 12 - Defendant(s)
=========================================================
Appearance
:
MS
MEGHA JANI for
Appellant(s) : 1,
None for Defendant(s) : 1, 7,9 - 10, 10.2.1,
12,
MS SNEHA A JOSHI for Defendant(s) : 2 - 6, 8,
MR HASMUKH
THAKKER for Defendant(s) : 11,
MR SAVAN N PANDYA for Defendant(s)
: 12.2.1, 12.2.2,12.2.3
- for Defendant(s) : 0.0.0
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 18/09/2008
ORAL
ORDER
Heard
learned advocate Ms. Megha Jani on behalf of New India Assurance Co.
Ltd.
The
appellant insurance company has challenged common award passed by
Motor Accident Claims Tribunal, Sabarkantha District at Sabalpur ?
Modasa in MACP no. 73/90, 72/90 and 59/90 dated 8/3/2006. The
claims Tribunal has awarded Rs. 2,31,000/-, Rs. 1,85,500/- and Rs.
1,82,200/- in MACP no. 73/90, 72/90 and 59/90 respectively with 7.5%
interest.
These
three cases are fatal and claimants have filed claim petitions for
compensation of deceased who died in the said accident.
Learned
advocate Ms. Jani appearing for appellant raised contention before
this Court that Tribunal has committed gross error in holding
liability upon appellant insurance company for paying compensation.
She
submitted that Tribunal has failed to appreciate contention of
appellant to the effect that Jeep was plied for carriage of more
than passengers then permissible. As per policy, seating capacity
is stated to be 5 + 1. As against this, as is mentioned in the FIR,
16 persons were traveling in the Jeep. These 16 persons are named
in the FIR. Not only that she submitted that depositions also
support the fact that on the day of accident 15 to 17 persons were
traveling.
She
submitted that Tribunal has not accepted contention of appellant
insurance company to the effect that since Jeep was overloaded and
was used for carriage of 17 passengers as against 6, there is a
breach of terms and conditions of policy and appellant insurance
company is not liable to indemnify the insured.
She
submitted that even without prejudice to first contention liability
of company because of additional premium was paid by owner comes to
Rs. 15,000/- only per person as per policy, where Rs. 50/- per
person was paid by owner. Therefore, it is beyond to policy as per
premium paid by owner per person. Except that no other contention
raised by learned advocate Ms. Jani before this Court.
The
accident occurred on 5/1/1990 about 6.30 a.m. where persons were
coming from Modasa in Taxi being a No. GRW 9838 where owner is
respondent no. 5 and driver is respondent no. 4. Meanwhile, at
about 7.30 a.m. when they reached to Modasa near Sabalpur Patia in
turning, Taxi driver has slow the Jeep. At that occasion, opponent
no. 1 who was having ownership of Truck of opponent no. 2 No. CIO
9321 came from Modasa in rash and negligent manner carelessly
without giving horn dashed to Taxi. Because of dashed or impact
given by truck to Taxi, Taxi was dashed with tree and stand near
tree. In the said accident, person those who are traveling in Taxi
were injured and three persons were died on the spot, for that,
claim petition was filed by claimants.
The
reply was filed by insurance company and denying averments made in
claim petition. The insurance company of Truck made allegation
against Jeep and Insurance company of Jeep made allegation against
Truck in their written statement. The contention raised by present
appellant before claims Tribunal that Jeep was overloaded then
permit under the Rules. So, as per terms and conditions of insurance
policy, insurance company is not liable.
Before
claims Tribunal vide exh 113 panchnama, vide exh 114 inquest
panchnama of deceased Ambaben, vide exh 115 P.M. report of deceased
Ambaben, vide exh 116 inquest panchnama of Bhurabhai Damorbhai, vide
exh 133 inquest panchnama of deceased Nathiben, vide exh 134 P. M.
report of Nathiben, vide exh 130 xerox of complain filed by
complainant, vide exh 126 P.M. report of Sukhabhai, vide exh 112
oral evidence of Dolabhai Manabhai Damor, vide exh 117 oral evidence
of Zalabhai Hajurbhai Damor and vide exh 109 oral evidence of
Galiben Bhurabhai Damor was produced. Vide exh 123 Kantibhai
Samanbhai Patel was examined and vide exh 124 affidavit of Kantibhai
Samanbhai Patel were produced. Vide exh 127 Laxmanbhai Masurbhai
Damor was examined and vide exh 122 he was produced an affidavit.
Except that none was examined before claims Tribunal.
All
three persons were traveling in Jeep. After considering submissions
made by three learned advocates and documentary evidence in para 16,
the Tribunal has examined the question of negligence and also
examined liability of insurance company.
The
insurance company has raised contention for breach of terms and
conditions which was proved by appellant, therefore, no liability
is passed on upon insurance company. In respect to contention that
Jeep was overloaded and premium for only six persons were paid, but
at the time of accident more than 15 to 17 persons were traveling,
it amounts to breach of terms and condition of insurance policy,
Tribunal has considered that Owner has committed error in allowing
15 to 17 passengers in Jeep who was having insurance of only five
persons by paying additional amount of Rs. 50/- per person, but
liability of insurance company is remained to satisfy award, though
there may be breached of terms and conditions of insurance policy
committed by insured. The persons those who were traveling are
considered to be an occupants of Vehicle. The Jeep is considered to
be passenger vehicle not goods vehicle. In passenger vehicle,
liability of insurance company is to indemnify the owner in case if
any amount is to be paid as compensation to claimants. This Jeep is
not private vehicle. The Jeep was plied as Taxi, where passengers
were traveling.
Therefore,
claims Tribunal has examined issue that in case if owner has
committed any breach, remedy is available with insurance company to
recover from owner after paying amount to claimants.
Therefore,
claims Tribunal has decided entire liability upon insurance company
to satisfy award because an additional premium of Rs. 50/- was paid
by insured for one passenger and it covers five passengers and Rs.
250/- paid being an additional amount. Whether risk of paid
passenger is covered only Rs. 50/- or more or not, for that,
insurance company has not led any evidence before claims Tribunal.
The terms and conditions of insurance policy not proved by insurance
company before claims Tribunal. None was examined by insurance
company before claims Tribunal.
Therefore,
a moment, additional amount has been paid being premium for five
passengers Rs. 250/- then it is a duty of insurance company to
satisfy award because insurance company has not led any evidence to
justify their stands about limited liability.
Therefore,
in absence of evidence from insurance company, conclusion of claims
Tribunal is right that additional premium was paid by insured for
five passengers plus driver then insurance company is liable to
satisfy award passed by claims Tribunal.
Therefore,
according to my opinion, claims Tribunal has rightly examined issue
about liability, which has been raised before this Court and looking
to the fact that in accident five passengers received injuries and
three died, liability is upon insurance company to satisfy award.
According
to my opinion, tribunal has not committed any error in deciding
issue of liability on the basis of insurance policy, which was on
record. Therefore, finding given by claims Tribunal is just and
proper and can not considered to be contrary on record or baseless
and perverse.
The
contentions, raised by learned advocate Ms. Jani can not be accepted
and same are rejected in absence of evidence from insurance company.
Hence,
there is no substance in the present appeal. Accordingly, present
appeal is dismissed.
The
amount which are deposited by insurance company before Registry of
this Court are directed to be transmitted immediately to the concern
claims Tribunal. The amount of compensation as directed by claims
Tribunal together with costs and interest are deposited by insurance
company before claims Tribunal and out of that 40% amount is
disbursed in favour of respondent claimants as per order passed by
this Court and remaining amount is already invested in any
Nationalized bank for a period of five years. In case, if, claimants
are required any amount then they may approach to claims Tribunal
and claims Tribunal will consider such application and pass
appropriate disbursement order in their favour, as and when such
occasion arise.
Accordingly,
today, all three appeals are dismissed by this Court. Therefore, no
order is required to be passed in civil applications. Accordingly,
civil application are also disposed of.
(H.K.RATHOD,
J)
asma
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