{"id":230656,"date":"2008-09-22T00:00:00","date_gmt":"2008-09-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/somaben-vs-kalubhai-on-22-september-2008"},"modified":"2015-09-12T19:02:05","modified_gmt":"2015-09-12T13:32:05","slug":"somaben-vs-kalubhai-on-22-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/somaben-vs-kalubhai-on-22-september-2008","title":{"rendered":"Somaben vs Kalubhai on 22 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Somaben vs Kalubhai on 22 September, 2008<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/2557\/2007\t 11\/ 14\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 2557 of 2007\n \n\n \n \n=========================================================\n\n \n\nSOMABEN\nWD\/O RANIYABHAI MANIYABHAI GANAVA & 3 - Appellant(s)\n \n\nVersus\n \n\nKALUBHAI\nJIVABHAI PARMAR & 2 - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nRAJESH K SHAH for\nAppellant(s) : 1 - 4. \nNone for Defendant(s) : 1 - 2. \nMR RAJNI H\nMEHTA for Defendant(s) :\n3, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 22\/09\/2008 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Heard
\n\tlearned advocate Mr. RK Shah on behalf of appellants claimants,
\n\tlearned advocate Mr. SB Parikh for learned advocate Mr. RH Mehta
\n\tappearing for respondent no. 3 Insurance company.\n<\/p>\n
In
\n\tthe present appeal, appellants have challenged award passed by Motor
\n\tAccident Claims Tribunal, Kheda at Nadiad in MACP no. 1856\/1992 exh
\n\t32 dated 7\/4\/2003. The claims Tribunal has exonerated insurance
\n\tcompany and directed that award of compensation of Rs. 3,37,000\/- to
\n\tbe recovered from driver and owner with 9% interest.\n<\/p>\n
Learned
\n\tadvocate Mr. Shah submitted that deceased was an employee of owner
\n\ttraveling with goods.  Therefore, insurance company is liable for
\n\tpayment of compensation. He submitted that claims Tribunal has not
\n\tconsidered evidence, which are on record and come to contrary
\n\tconclusion. Therefore, tribunal has committed gross error in passing
\n\tan award.  Therefore, present appeal is filed.\n<\/p>\n
Learned
\n\tadvocate Mr. Parikh appearing for respondent no. 3 insurance company
\n\traised contention that written statement was filed by insurance
\n\tcompany vide exh 25 denying the averment made in claim petition and
\n\talso raised contention that accident occurred on 2\/8\/1992 at about
\n\t9.00 hrs on public road between village Nawali and Napad with
\n\tvehicle tempo being a No. GJ-7-T-4819 driven by opponent no. 1 in
\n\trash and negligent manner but deceased was traveling in said tempo
\n\tbeing an unauthorized passengers.  Therefore, insurance company is
\n\tnot liable to pay compensation.\n<\/p>\n
He
\n\tsubmitted that it is a clear breach committed by owner. Therefore,
\n\tterms and conditions of insurance policy is violated by owner and
\n\tthere was no statutory insurance available in favour of claimants
\n\tbecause of old act applicable to the said accident.  Therefore, he
\n\tsubmitted that claims Tribunal has rightly exonerated insurance
\n\tcompany.\n<\/p>\n
I
\n\thave considered submissions made by both learned advocates and
\n\tconsidering award passed by claims Tribunal, Nadiad.  The claim was
\n\tmade by claimant of Rs. 7,50,000\/-.  The deceased Raniyabhai
\n\tManiyabhai Ganava died in said accident dated 2\/8\/1992.  According
\n\tto claimants, deceased was going for work of his employer Sheth
\n\tLakhubhai Contractor with his goods after fixing the fare for
\n\ttransportation. The driver of said tempo had driven tempo in rash
\n\tand negligent manner and at the place of accident tempo went of the
\n\troad and deceased was fell down from tempo and received injuries.
\n\tThe deceased was taken to Krishna Hospital at Karamsad. Thereafter,
\n\the referred to SSG Hospital, Baroda, where he died during treatment
\n\tabout 14.30 hrs.<\/p>\n
In
\n\tthe written statement, vide exh 25, insurance company denied
\n\taverment made in claim petition.  According to insurance company,
\n\tdeceased was traveling as an unauthorized passenger in goods
\n\tvehicle, it amounts to breach of policy.  Therefore, company is not
\n\tliable to pay compensation to claimants.\n<\/p>\n
The
\n\tclaims Tribunal has framed the issue vide exh 20 and thereafter
\n\tmatter has been examined by claims Tribunal on merits.\n<\/p>\n
The
\n\tclaims Tribunal has come to conclusion that accident took place due
\n\tto rash and negligent driving of opponent no. 1 driver of tempo No.
\n\tGJ-1-T-4819. The claims Tribunal has examined issue whether
\n\tinsurance company is liable or not?  That aspect has been discussed
\n\tin detailed in para 8 and 9, which are relevant, therefore, quoted
\n\tas under:\n<\/p>\n
?S8.\tThe
\n\topponent no. 1 driver of the vehicle tempo is liable to pay
\n\tcompensation to the petitioners for his tortious act. The opponent
\n\tno. 2 is the owner of the said tempo and opponent no. 2 has not
\n\tdenied the ownership of said tempo.  The R.T.O. certificate and the
\n\tpermit of the vehicle show the name of the opponent no. 2 as a
\n\tregistered owner of the said vehicle.  The insurance policy is also
\n\ttaken in the name of the opponent no. 2 for the said tempo.
\n\tTherefore, the opponent no. 2 being the owner of vehicle involved in
\n\tthe accident and the opponent no. 1 having driven vehicle while he
\n\tis employment of the opponent no. 2 with consent and convince of the
\n\topponent no. 2, the opponent no. 2 would be liable to pay the
\n\tcompensation under the principles of vicarious liability.
\n\tTherefore, both the opponent no. 1 and no. 2 are held liable to pay
\n\tthe compensation to the petitioners as their joint and several
\n\tliability.\n<\/p>\n
9.\tThe
\n\tlearned advocate Shri C. G. Patel for the opponent no. 3 Insurance
\n\tcompany has submitted that the deceased was traveling in the goods
\n\tvehicle of tempo with the goods of scenting as per allegations of
\n\tthe petitioners. The said allegations of petitioner is supported by
\n\tthe deposition of petitioner no. 1 Samaben exh 26. So according to
\n\tthe petitioners themselves the deceased was traveling in a goods.
\n\tThe traveling with the goods by owner of the goods of the agent of
\n\tthe owner of the goods the liability of the Insurance company would
\n\tnot arise as there would be a breach of the policy.  The learned
\n\tadvocate Shri. C. G. Patel has relied on the decision of Supreme
\n\tCourt in case of Smt. Mallawwa vs. Asha Rani AIR 2003 SUPREME COURT\n<\/p>\n
\t607.  It is held in para 9 and para  24 to 29 that:-\n<\/p>\n
9.\t…\n<\/p>\n
\t\t\tIf the Motor Vehicles Amended Act of 1994 is  examined,
\n\t\t\tparticularly Section 46 of Act 6 of 1991 by which expression
\n\t\t\t‘injury to any person’ in the original Act stood substituted by
\n\t\t\tthe expression ‘injury to any person including owner of the goods
\n\t\t\tor his authorized representative carried in the vehicle’ the
\n\t\t\tconclusion is irresistible that prior to that aforesaid amendment
\n\t\t\tAct on 1994, even if widest interpretation is given to the
\n\t\t\texpression ‘to any person’ it will not cover either the owner of
\n\t\t\tthe goods or his authorized representative being carried in the
\n\t\t\tvehicle.  The objects and reasons of clause 46 also states that it
\n\t\t\tseeks to amend authorized representative carried in the vehicle
\n\t\t\tfor the purpose of liability under the insurance policy.  It is no
\n\t\t\tdoubt true that sometimes the legislation amends the law by way of
\n\t\t\tamplification or an inherent position which is there in the
\n\t\t\tstatute, but a plain meaning being given to the words used in the
\n\t\t\tstatute, as it stood prior to amendment of 1994, and as it stands
\n\t\t\tsubsequent to its amendment in 1994 and bearing in mind the
\n\t\t\tobjects and reasons engrafted in the amended provisions referred
\n\t\t\tto earlier, it is difficult for use to construe that the
\n\t\t\texpression including owner of the goods or his authorized
\n\t\t\trepresentative carried in the vehicle which was added to the pre-
\n\t\t\texisted expression ‘injury to any person’ is either clarificatory
\n\t\t\tor amplification of the pre-existing statute.  On the other hand
\n\t\t\tit clearly demonstrates that the legislature wanted to bring
\n\t\t\twithing the sweep of section 147 and making it compulsory for the
\n\t\t\tinsurer to insure even in case of a goods vehicle, the owner of
\n\t\t\tthe goods or his authorized representative being carried in a
\n\t\t\tgoods vehicle when that vehicle meet with an accident and the dies
\n\t\t\tor suffers bodily injury.  The judgement of this Court in Satpal’s
\n\t\t\tcase, therefore, must be held to have not been correctly decided
\n\t\t\tand the impugned judgement of the Tribunal as well as that of the
\n\t\t\tHigh Court accordingly are set aside and these appeals are
\n\t\t\tallowed.  It is held that the insurer will not be liable for
\n\t\t\tpaying compensation to the owner of goods of his authorized
\n\t\t\trepresentative on being carried in a goods vehicle when that
\n\t\t\tvehicle meets with an accident, and the owner of goods or his
\n\t\t\trepresentative dies or suffers any bodily injury.\n<\/p>\n
24.\tWe
\n\t\t\thave further, noticed that section 147 of 1988 Act prescribing the
\n\t\t\trequirements of an insurance policy does not contain a provision
\n\t\t\tsimilar to clause (ii) of the proviso appended to section 95 of
\n\t\t\t1939 Act.  The decisions of this Court in Mallawwa’s case, (supra)
\n\t\t\tmust be held to have been rendered having regard to the
\n\t\t\taforementioned provisions.\n<\/p>\n
25.\tSection
\n\t\t\t147 of 1988 Act, inter alia, prescribes compulsory coverage
\n\t\t\tagainst the death of or bodily injury to any passenger of ‘public
\n\t\t\tservice vehicle’. Proviso appended thereto categorically states
\n\t\t\ttat compulsory coverage in respect of drivers and conductors of
\n\t\t\tpublic service vehicle and employees carried in a goods vehicle
\n\t\t\twould be limited to the liability under the Workmen’s Compensation
\n\t\t\tAct.  It does not speak of any passengers in a ‘goods carriage.’<\/p>\n
26.\tIn
\n\t\t\tview of the changes in the relevant provisions in 1988 Act
\n\t\t\tvis-a-vis 1939 Act, we are of the opinion that the meaning of the
\n\t\t\twords ?Sany person?? must also be attributed having regard to
\n\t\t\tthe context in which they have been used i.e. ‘a third party’.
\n\t\t\tKeeping in view the provisions of 1988 Act, we are of the opinion
\n\t\t\tthat as the provisions thereof do not enjoin any statutory
\n\t\t\tliability on the owner of a vehicle, to get his vehicle insured
\n\t\t\tfor any passengers traveling in a goods vehicle insured for any
\n\t\t\tpassengers traveling in a goods vehicle, the insurers would not be
\n\t\t\tliable therefore.\n<\/p>\n
27.\tFurthermore,
\n\t\t\tsub-clause (1) of clause (b) of subsection (1) of Section 147
\n\t\t\tspeaks of liability which may be incurred by the owner of a
\n\t\t\tvehicle in respect of death of or bodily injury to any person or
\n\t\t\tdamage to any property of a third party caused by or arising out
\n\t\t\tof the use of he vehicle in a public place, whereas sub-clause (1)
\n\t\t\tthereof deals with liability which may be incurred by the owner of
\n\t\t\ta vehicle against the death of or bodily injury to any passengers
\n\t\t\tof a public service vehicle caused by or arising out of use of the
\n\t\t\tvehicle in a public place.\n<\/p>\n
28.\tAn
\n\t\t\towner of a passenger carrying vehicle must pay premium for
\n\t\t\tcovering the risks of the passengers.  If a liability other than
\n\t\t\tthe limited liability provided for under the Act is to be enhanced
\n\t\t\tunder an insurance policy, additional premium is required to be
\n\t\t\tpaid.  But if the ratio of the Court’s decision in new India
\n\t\t\tAssurance Company Vs. Satpal Singh & ors. (2001) 1 SCC 237 is
\n\t\t\ttaken to its logical conclusion, although for such passengers, the
\n\t\t\towner of a goods carriage need not take out an insurance policy,
\n\t\t\tthey would be deemed to have been covered under the policy where
\n\t\t\tfor even no premium is required to be paid.\n<\/p>\n
29.\tWe
\n\t\t\tmay considered the matter for another angle. Section 149(2) of the
\n\t\t\t1988 Act enables the insurers to raise defences against the claim
\n\t\t\tof the claimants.  In terms of clause (s) of subsection (2) of
\n\t\t\tSection 149 of the Act one of the defences which is available to
\n\t\t\tthe insurer is that the vehicle in question has been used for a
\n\t\t\tpurpose not allowed by the permit under which the vehicle was
\n\t\t\tused.  Such a statutory defence available to the insurer would be
\n\t\t\tobliterated in view of the decision of this Court in Satpal
\n\t\t\tSingh’s case (supra).\n<\/p>\n
The
\n\t\t\tSupreme Court in case of Oriental Insurance Co. Ltd., Vs.
\n\t\t\tDevireddy Konda Reddy (2203) 2 Supreme Court Cases held that:-\n<\/p>\n
?SThe
\n\t\t\tdifference is the language of ?Sgoods vehicle as appearing in the
\n\t\t\tMotor Vehicles Act 1939 and ?Sgoods carriage?? in the Motor
\n\t\t\tVehicles Act, 1988 if of significance.  A bare reading of the
\n\t\t\tprovisions makes it clear that the legislative intent was to
\n\t\t\tprohibit a goods a vehicle from carrying any passenger.  This is
\n\t\t\tclear from the expression ?Sin addition to passengers?? as
\n\t\t\tcontained in the definition of ?Sgoods vehicle?? in the old Act.
\n\t\t\t The position becomes further clear because the expression used is
\n\t\t\t?Sgoods carriage?? which is solely for the carriage of ?Sgoods??,
\n\t\t\tcarrying of passengers in a goods carriage is not contemplated in
\n\t\t\tthe Motor Vehicles Act, 1988.  There is no provision similar to
\n\t\t\tclause (ii) of the proviso appended to Section 95 of the old Act
\n\t\t\tproviding requirement of insurance policy.  Even section 147 of
\n\t\t\tthe 1988 Act mandates compulsory coverage against death of or
\n\t\t\tbodily injury to any passenger of ?Spublic service vehicle??.
\n\t\t\tThe proviso makes it further clear that compulsory coverage in
\n\t\t\trespect of drivers and conductor of public service vehicle and
\n\t\t\temployees carried in goods vehicle would be limited to liability
\n\t\t\tunder the workmen’s compensation Act, 1923 (in short ?Sthe WC
\n\t\t\tAct??).  There is no reference to nay passengers, therefore, is
\n\t\t\tthat provision of the Act do not enjoin any statutory liability on
\n\t\t\tthe owner of a vehicle to get his vehicle insured for any
\n\t\t\tpassenger traveling in a goods carriage and the insurer would have
\n\t\t\tno liability therefore.??\n<\/p>\n
In
\n\t\t\t\tview of the above decisions of Supreme Court, the new Motor
\n\t\t\t\tVehicles Act, 1988 came into force and even after amendment of
\n\t\t\t\t1994 the insurer will not liable for paying the compensation to
\n\t\t\t\tthe owner of goods of his authorized representative or in a goods
\n\t\t\t\tvehicles meets with an accident and the owner of goods dies and
\n\t\t\t\tsuffers injuries.  Therefore, in this case the opponent no. 3
\n\t\t\t\tinsurance company will not be liable to pay the compensation to
\n\t\t\t\tthe petitioners.  Therefore, the issue No. 1 is partly held in
\n\t\t\t\taffirmative for opponent no. 1 and 2 only.??\n<\/p>\n
The
\n\tclaims Tribunal has considered the case of Smt. Mallawwa, Asha Rani,
\n\tOriental Insurance Co. Ltd., Vs. Devireddy Konda Reddy  and case of
\n\tSatpal Singh.  The Tribunal has also considered amendment made in
\n\tAct of Motor Vehicles Act 1988 on 14\/11\/1994 that insurer will not
\n\tliable for paying compensation to owner of goods or his authorized
\n\trepresentative in goods vehicle meets with accident then owner of
\n\tthe goods died or suffers injuries.\n<\/p>\n
Therefore,
\n\tclaims tribunal has come to conclusion that insurance company
\n\topponent no. 3 is not liable to pay compensation to claimants.
\n\tUltimately, claims Tribunal has exonerated insurance company.\n<\/p>\n
Therefore,
\n\taccording to my opinion, the view taken by claims Tribunal is
\n\tperfectly justified.  Looking to the amendment made in motor
\n\tVehicles Act on 14\/11\/1994 prior to that accident occurred on
\n\t2\/8\/1992.  Therefore, if any person traveling in goods vehicle even
\n\talong with owner of goods not entitled for any amount of
\n\tcompensation from insurance company as it amounts to clear breach of
\n\tinsurance policy, because in goods vehicle passenger is not
\n\tpermitted to travel and for that no insurance is to be taken by
\n\towner and according to insurance policy being a contract between
\n\tinsured and insurer, liability for unauthorized passenger is not
\n\taccepted by insurance company.  There is no statutory liability of
\n\tinsurance company.  Therefore, claims Tribunal has rightly examined
\n\tissue of liability.\n<\/p>\n
Therefore,
\n\tclaims Tribunal has not committed any error, which would require
\n\tinterference by this Court. Hence, there is no substance in present
\n\tappeal.  Accordingly, present appeal is dismissed.\n<\/p>\n
Today,
\n\tfirst appeal is dismissed by this Court, therefore, no order is
\n\trequired to be passed in civil application.  Accordingly, civil
\n\tapplication is disposed of.\n<\/p>\n
\t\t\t\t\t\t\t\t(H.K.RATHOD,
\nJ)<\/p>\n
asma<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Somaben vs Kalubhai on 22 September, 2008 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print FA\/2557\/2007 11\/ 14 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2557 of 2007 ========================================================= SOMABEN WD\/O RANIYABHAI MANIYABHAI GANAVA & 3 – Appellant(s) Versus KALUBHAI JIVABHAI PARMAR & 2 – Defendant(s) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-230656","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSomaben vs Kalubhai on 22 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/somaben-vs-kalubhai-on-22-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Somaben vs Kalubhai on 22 September, 2008 - 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