In the Gujarat High Court
First appeal no. 1006 of 1987
Yakubbhai Ibrahimbhai Patel & Ors.
Date of Judgement
28 December, 2006
Hon’ble Justice R. M. Chhaya; Hon’ble Justice Akil Kureshi; Hon’ble Justice Jayant Patel
An order passed by Motor Accident Claims Tribunal on 28.8.1985 and the interpretation of restricted liability of the insurance company by section 95 of Motor Vehicles Act, 1935 led the appellant to appeal before the court.
Statues & Provisions discussed:
- Section 95, 95(2)(b), 96(4) of Motor Vehicle Act, 1939
- Section 2(7) of the Motor Vehicle Amendment Act, 1988.
- Article 140 of Constitution of India, 1950.
- Shantaben widow of deceased Kantibhai Punjabhai Vankar and others, appellants-original inquirers (petitioners) have recorded this intrigue under Section 110D of the Motor Vehicles Act, 1939 (hereinafter alluded to as the Act) against the judgment and grant dated 28.8.1985 passed by the Motor Accident Claims Tribunal, Himmatnagar, Sabarkantha in M.A.C. Request No. 30 of 1983.
- By the upbraided grant, the Tribunal has held that the inquirers are qualified for recouping an aggregate of Rs. 1, 36,000/ – from all rivals, viz., opponent No. 1 Yakubbhai Ibrahimbhai Patel and opponent No. 2 Faquirmohmed Noormohmed Memon with proportionate expenses and enthusiasm at the pace of 6% per annum from the date of the application. Be that as it may, as respects Insurance Company, opponent No. 3 is concerned; the Tribunal has held that the obligation of the Insurance Company is limited to Rs. 50,000/ – with proportionate expenses and intrigue as it were.
- The Tribunal further held that all the opponents are together and severally at risk to pay the previously mentioned measure of remuneration and to hold up under their own expenses and the remainder of the case of the petitioners is dismissed. The Tribunal passed a request for distribution too.
- The first case request recorded by Shantaben, widow of deceased Kantibhai Punjabhai Vankar and others before the Motor Accident Claims Tribunal, Himatnagar, Dist. Sabarkantha being Motor Accident Claim Petition No. 30 of 1982 under Section 110A of the Motor Vehicles Act, 1939 (hereinafter alluded to as M.V. Act).
- In the said application it is expressed that on 19.9.1982 Shri Kantibhai Punjabhai Vankar since deceased, was going through close Idar-S.T. Terminal at Himmatnagar Idar Street at 10.15 a.m. on the correct side. Around then one rickshaw bearing No. GRN 94 which was driven imprudently and carelessly by Yakubbhai Ibrahimbhai Patel, opponent No. 1 and the rickshaw ran Shri Kantibhai Punjabhai Vankar from behind and because of such effect; Shri Kantibhai Punjabhai Vankar endured wounds and at last succumbed to his injuries.
- Whether negligent driving on the part of the driver of the auto-rickshaw No. GRL 94 as an alleged caused accident?
- As contended whether the deceased was guilty of contributory negligence?
- From whom and what amount of compensation are the claimants entitled?
- The liability of the Insurance Company is restricted to Rs. 50,000/- is clearly erroneous and unjustified as the opponent No. 1, 2 and 3 are jointly and severally liable to pay Rs. 1, 36,000/- both in law as well as on facts of the case.
- Company will indemnify the insured against all sums including claimant’s costs and expenses which the insured shall become legally liable to pay subject to the Limits of liability as regards the liability of third parties. In respect of the death of or bodily injury to any person caused by or arising out of the use damage to property caused by the use (including the loading and/or unloading) of the vehicle the insured shall become legally liable to pay.
- To recover an amount under or by virtue of the provisions of the Motor Vehicle Act, 1939, Section 96 nothing in the insurance policy or any endorsement hereon shall affect the right of any person indemnified.
- In cases where all sums paid by the Company which the Company would not have been liable to pay but for the said provisions the insurer is liable to repay to the company. Rs. 48/- has recovered by the company from the insurance of the third party. The company has limited liability as per the Motor Vehicles Act of 1939.
- Counsel for the Insurance Companies, fervently argued that this will add up to revamping the particulars of the strategy which was disapproved of by the Apex Court on account of C.M.Jaya[i]. They battled that the choice on account of Amrit Lal Sood would never again apply in perspective on the resulting choice of the Larger Bench on account of C.M.Jaya[ii]. They presented that any such course would add up to making the strategy covering boundless risk. Such disputes for an assortment of reasons can’t be maintained.
It was held that,
(i) The obligation of the insurer relies upon the details of the agreement between the guaranteed and the backup plan contained in the strategy;
(ii) there is no preclusion for an insured from going into an agreement of protection covering an accident/ a risk more extensive than the base necessity of the rule whereby chance to the unwarranted traveler could likewise be secured; and
(iii) in such situations where the arrangement isn’t only a statutory approach, the conditions of the arrangement must be considered to decide the risk of the guarantor.
- Subsequently, the Court after seeing the applicable provisos in the approach, on realities found that under Section II1( a) of the act, the insurer has consented to reimburse the safeguarded against all wholes which the protected will turn out to be legitimately at risk to offer in appreciation of death of or substantial injury to “any individual”.
- The articulation “any individual” would without a doubt incorporate a tenant of the vehicle who is needlessly going in it. Further, alluding to the instance of Pushpabai Purshottam Udeshi[iii], it was seen that the said choice depended on the significant condition in the protection approach all things considered which confined the legitimate risk of the backup plan to the statutory prerequisite under Section 95 of the Act.
- Thus, that choice made little difference to Amrit Lal Sood’s case as the particulars of the approach were sufficiently wide to cover an unwarranted tenant of the vehicle. Along these lines, the particular proviso in the approach is more extensive, covering higher accidents, had a significant effect in Amrit Lal Sood’s case as to boundless of higher obligation.
- The Court concluded that the case in the light of the particular condition contained in the strategy. The said choice can’t be perused as setting out that despite the fact that the obligation of the insurance agency is constrained to the statutory necessity; a boundless or higher risk can be forced on it. The obligation could be statutory or authoritative. A statutory risk can’t be more than what is required under the resolution itself. In any case, there is nothing in Section 95 of the Act precluding the gatherings from contracting to make boundless or higher obligation to cover the more extensive accidents.
- On such an occasion, the backup plan is bound by the conditions of the agreement as indicated in the approach with respect to boundless or higher risk by and large. Without such a term or proviso in the strategy, in accordance with the agreement of protection, the restricted statutory risk can’t be extended to make it boundless or higher. On the off chance that it is so done, it adds up to modifying the rule or the agreement of protection which isn’t admissible.
- The Insurance Company despite its restricted risk should to the extent that the outsider is concerned; fulfill the whole honor of the Claims Tribunal. The Insurance Company would be qualified for recuperating the sum in the abundance of Rs.50, 000/which are the statutory furthest reaches of risk, from the proprietor of the vehicle protected which was associated with the accident.
- The shirking statement in the policy, right now, all the distinction and the heading of the High Court to the litigant insurance agency to make installment of everything of pay to the petitioners and to recuperate its due from the proprietor of the vehicle is legitimate as per that proviso The appealing party, right now, get no advantage from the choice in C.M.Jaya[iv].
In the decried judgment the learned Tribunal in the wake of considering both oral just as narrative proof showed up at the finding and held that the mishap happened because of the negligent and rash driving with respect to the auto-rickshaw and the deceased was not liable of any contributory negligence.
In the light of the above proportion set somewhere around this Court and in perspective on the way that no additional premium was paid towards boundless obligation as is obvious from the strategy delivered before the Tribunal, the judgment and request of the Tribunal confirmed by the High Court can’t be supported and are, as needs to be, set aside.
Edited by Parul Soni
Approved & Published – Sakshi Raje
[i] New India Assurance Co. Ltd. v. C.M. Jaya and Ors. 2002 ACJ 271 (SC).
[iii] Pushpabai Purushottam Uddeshi and Ors v. Ranjit Ginning and Pressing Co and Ors 1977 ACJ 343
[iv] Supra note 1.