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FA/2670/2008 2/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2670 of 2008
=========================================================
UNITED
INDIA INSURANCE COMPANY LTD THROUGH - Appellant(s)
Versus
MAHENDRABHAI
PAGJIBHAI PATEL & 4 - Defendant(s)
=========================================================
Appearance
:
(MR
PV NANAVATI) for
Appellant(s) : 1,MR VIBHUTI NANAVATI for Appellant(s) : 1,
None
for Defendant(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/09/2008
ORAL
ORDER
Heard
learned advocate Mr. Vibhuti Nanavati on behalf of appellant United
India Insurance Co. Ltd.
The
appellant has challenged the award passed by Motor Accident Claims
Tribunal at Gandhinagar in MACP No. 290/2004 vide exh 42 dated
11/12/2007. The Claims Tribunal has partly allowed application u/s
163(A) of Motor Vehicles Act filed by the claimant and awarded Rs.
1,74,500/- being a compensation to be recovered from respondent with
9% interest. The Claims Tribunal has held liable to appellant
Insurance company to indemnify the award amount of Rs. 1,00,000/-
with costs and interest and rest of the amount be recovered from
opponent no. 1 and 3.
Learned
advocate Mr. Nanavati raised contention before this Court that
Tribunal has misunderstood the policy and contention raised by
Insurance company. The specific contention raised in appeal memo in
ground D, E and F, which are relevant, therefore, quoted as under:
?S(D) The
learned Tribunal ought to have appreciated that IMT 15 (GR 36)
covers the contractual liability of the insurance company for the
owner-driver alone.
(E) The
learned Tribunal ought to have appreciated IMT 15 (GR 36) which
reads as under:
?SCompulsory
PA cover for the owner-driver shall be applicable in both the
liabilities and package policies. The owner of the insured
vehicle holding effective driving licence is taken as owner-driver
for the purpose of this Section. Cover is provided to the
owner-driver whilst driving the vehicle including mounting
into/dismounting from or traveling in the insured vehicle as
co-driver.
Thus,
the finding on the issue of contractual liability for the death of
the deceased out of vehicular accident is entirely erroneous and
against the basic principles.
(F) The
learned Tribunal ought to have appreciated that deceased Ajitsingh
Ramsingh Jala was not the owner of the motor cycle bearing
registration No. GJ-18-F-723 which was insured with the appellant
insurance company.??
Except
that no other contention raised by learned advocate Mr. Nanavati.
In
short, his submission is that driver was not Owner of the vehicle
means insured. Therefore, risk of only driver is not covered under
the Insurance policy, but risk of driver cum owner is covered under
the policy. Therefore, he submitted that claims Tribunal has not
properly appreciated the question of law of Insurance company upto
Rs. 1,00,000/- which can not considered to be statutory liability
but it was a contractual liability.
I
have considered submissions made by learned advocate Mr. Nanavati
and in respect to the contention raised before claims Tribunal,
claims Tribunal has examined this question in para 14, which is
quoted as under:
?S14. The
Opponent no. 4 Insurance Company come with a case that the deceased
himself was negligent for driving this vehicle and therefore, the
Insurance company is not liable. The deceased himself was driving
insured vehicle and therefore, no liability can be fastened against
the Insurance company. The Insurance policy is produced at Mark
27/1. The premium is taken by the Insurance Company of 558/- and
the risk covered for driver up to Rs. 1,00,000/-. The learned
advocate for the opponent no. 4 alternatively has submitted that no
liability can be fastened more than Rs. 1,00,000/-, it is gainful to
refer judgement reported in 2007 ACJ 1934 between Yallwwa and others
Vs. National Insurance Co. Ltd. The Honourable Supreme Court has
held in para 16 that ?SThe question is required to be considered
is, what would be the meaning of the term award when such a
contention is raised? Although in a given situation having regard
to the liability of the owner of the vehicle, a Claims Tribunal need
not go into the question as to whether the owner of the vehicle in
question was at fault or not but determination of the liability of
the insurance company, in our opinion, stands on a different
footing. When a statutory liability has been imposed upon the
owner, in our opinion, the same cannot extend the liability of an
insurer to indemnify the owner, although in terms of the Insurance
policy or under the Act, it would not be liable therefor.??
?SConsidering the
same liability of the opponent, insurance company cannot be fastened
more than Rs. 1,00,000/- and therefor, the opponent no. 4 Insurance
company is liable to indemnify the award amount of Rs. 1,00,000/- to
the claimants.??
In
view of the aforesaid discussion made in para 14, no doubt facts
before the Tribunal were not much clear, which were made by the
Insurance company. The Insurance policy produced at mark 27/1 and
premium of Rs. 588/- was general premium, which was obtained by the
Insurance company, but whether risk of driver alone or driver cum
owner is covered or not, that part is not made clear before claims
Tribunal i.e. how on the basis of admission of learned advocate of
Insurance company that alternatively, no liability can be fastened
more than Rs. 1,00,000/-.
Therefore,
claims Tribunal has considered submissions of advocate of Insurance
company and accordingly, direction has been issued holding liability
of Rs. 1,00,000/- for the appellant company and for the rest of
amount, respondent no. 1 and 3 have been held liable.
Therefore,
according to my opinion, this technical contention, no doubt, makes
lot of difference but any how contractual liability or statutory
liability, the Insurance company has accepted liability being
contractual upto Rs. 1,00,000/- and that has been awarded by claims
Tribunal. Considering statutorily, that has not proper, but in
substance claimant claiming amount of Rs. 1,00,000/-, it may
consider to be statutorily or it may be considered to be
contractual. Ultimately, for the claimant, it does not make much
difference. Legally, Insurance company is right that statutory
liability is covered u/s 147 and contractual liability depends upon
contract between insured and insurer. Rs. 1,00,000/- has been
admitted by advocate of insurance company that was contractual
liability not statutory liability. On being clarification, no
further discussion is necessary. Therefore, this appeal is disposed
of with aforesaid clarification.
The
appellant insurance company is directed to deposit Rs. 1,00,000/-
with proportionate costs and interest before claims Tribunal within
a period of six weeks from today. After realizing the amount from
insurance company, it is directed to claims Tribunal concerned to
pay the said amount to claimant Ramsing Umedsinh Zala by A/c payee
cheque.
The
Registry of this Court is directed to transmit Rs. 25,000/-, which
has been deposited by insurance company to concerned claims Tribunal
immediately.
In
view of fact that present first appeal is disposed of, no order is
required to be passed in civil application. Therefore, civil
application is disposed of accordingly.
(H.K.RATHOD, J)
asma
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