First Appeal No. 1410 of 2009. Case: Rajeshbhai Laxmanbhai Koyani Vs Vinodrai Shamjibhai Kakadia and Ors.. Gujarat High Court

Case Number:First Appeal No. 1410 of 2009
Party Name:Rajeshbhai Laxmanbhai Koyani Vs Vinodrai Shamjibhai Kakadia and Ors.
Counsel:For Appellant: Tushar L. Sheth, Advocate
Judges:S.G. Shah, J.
Issue:Constitution of India - Article 14; Motor Vehicles Act, 1988 - Sections 05(2)(c), 11, 147, 147(1)(B)(i), 66
Judgement Date:April 07, 2017
Court:Gujarat High Court
 
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Judgment:

S.G. Shah, J.

  1. Heard learned advocate Mr. Tushar L. Sheth for the appellant and learned advocate Mr. Rajni H. Mehta for the respondent. Perused the record and proceedings, which includes oral, as well as, documentary evidence produced before the tribunal.

  2. The appellant herein is original claimant and victim of road accident, whereas respondent No. 1 is driver-cum-owner of the vehicle in question and respondent No. 2 is insurer of the vehicle in question.

  3. This appeal is mainly restricted on the point of liability of insurance company only and, thereby, when there is no dispute with regard to incident and privity of contract between respondent Nos. 1 and 2 in the form of insurance policy, so also there is no issue raised by either of the parties regarding quantum of compensation which is determined by the tribunal by the impugned judgment, except for referring the details, which is necessary to decide the liability of insurance company, other details are not material and, therefore, not reproduced or discussed herein, more particularly when all such information is well described, both, in pleadings and impugned award.

  4. It is undisputed fact that appellant was injured in vehicular accident for which, tribunal has awarded a compensation of Rs. 1,17,950/- with 7.5% interest. However, by impugned judgment and award dated 02.02.2008, the MACT (Auxiliary) of Gondal Camp at Dhoraji has in MACP No. 346 of 2001 while awarding aforesaid amount in favour of the appellant, exonerated the insurance company from its liability of making such payment on the ground that insurance company is not liable to pay compensation when appellant-victim was travelling in a goods vehicle.

  5. It is undisputed fact that vehicle being delivery van -Chhakda bearing registration No. GRP 4315 is a goods vehicle i.e. not a passenger vehicle. It is also undisputed fact that respondent No. 2 insurance company has issued an insurance policy describing the vehicle as delivery van and it has an endorsement in it prescribing limits of liability by following additional line, typed over and above the prescribed form of policy. Therefore, those lines are material to be recollected here, which reads thus;

    The Policy Cover the use only under a permit within the meaning of Motor Vehicles Act 1989 or such a carriage falling under sub-section 131 of Section 66 of M.V. Act, 1988.

    5.1 Therefore, one thing is certain that such insurance policy which is effective from 19.01.2001 till 18.01.2002 is subject to the provisions of the Motor Vehicles Act, 1988 as applicable on the date of issuance of such policy. Therefore, if we peruse the Motor Vehicles Act 1988, Section 147 of the act provides for requirement of the policy and limits of liability which reads as under;

    "147. Requirement of policies and limits of liability. -

    (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -

    (a) is issued by a person who is an authorised insurer; and

    (b) insurers the person or classes of persons specified in the policy to the extent specified in sub-section (2) -

    (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

    (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place;

    Provided that a policy shall not be required -

    (i) to cover liability in respect of the death, arising out of and in the course of this employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.

    Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

    (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-

    (a) save as provided in clause (b), the amount of liability incurred.

    (b) in respect of damage to any property of a third party, a limit of rupees six thousand:

    Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement...

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