1. First Appeal No.3157/2006 arises out of common judgment and award dated 13.01.2006 rendered by learned Motor Accident Claim Tribunal (Aux.), Rajkot in MACP No.336/1995, whereas, First Appeal No.4679/2006 arises out of common judgment and award dated 10/13.03.2006 rendered by learned Motor Accident Claim Tribunal (Aux.), Surendranagar in MACP No.685/1995. However, the issue pertaining to law involved in both these appeals is more or less identical and therefore, both these appeals were tagged together and therefore, both these appeals are being disposed of by present common judgment.
2. First Appeal No.3157/2006 is filed by appellant- The Oriental Insurance Co. Ltd. and First Appeal No.4679/2006 is filed by appellant- United India Insurance Co. Ltd. So far as First Appeal No.3157/2006, which is directed qua impugned common judgment and award rendered by M.A.C.T.(Aux.), Rajkot, in MACP No.336/1995 is concerned, the respondent nos.1/1 & 1/2 herein, who were parents of the deceased, were the claimants. As per the case of the claimants, at the time of accident, the deceased son Ghelabhai was travelling in goods carriage rickshaw No. GJ-3T-4348 and when the rickshaw reached near the place of accident, because of rash and negligent driving by the driver of the rickshaw as well as by the driver of oncoming Ambassador car, the accident occurred as the car dashed with the rickshaw and in the accident, the deceased Ghelabhai succumbed to the injury. The claimants also pleaded that at the time of accident, the deceased was travelling in the goods carriage rickshaw alongwith his goods viz. Sugarcane. The Tribunal while answering the issue no.1 regarding the negligence, came to the conclusion that the accident took place because of rash and negligent driving of the rickshaw by its driver. However, in the afore-mentioned claim petition, the appellant Oriental Insurance Company Ltd. was opponent no.3 and the Insurance Company had filed written-statement, wherein alongwith other contentions, a specific contention was raised to the effect that the deceased was travelling as gratuitous passenger and was not travelling in a capacity as owner of the goods. It transpires that even during the course of evidence as well as during the course of argument before the Tribunal, on behalf of appellant- Insurance Company, this contention was highlighted. However, the Tribunal at the end of the trial, directed the Driver, Owner and the Insurance Company viz. appellant and the respondent nos.2 & 3 herein, to pay jointly and severally Rs.2,21,000/- by way of compensation with running interest at the rate of 9% p.a. from the date of the filing of the aforementioned claim petition till realisation.
3. So far as First Appeal No.4679/2006 is concerned, as stated above, the said appeal arises out of the common impugned judgment and award rendered by M.A.C.T. (Aux.), Surendranagar in MACP No.685/1995. The said claim petition came to be preferred by respondent nos.1, 2 & 3 herein, who were original claimants, on account of accidental death of father of the claimant no.1 & 3 and husband of claimant no.2 viz. Dharamshibhai. As per the case of the claimants, at the time of accident, the deceased Dharamshibhai was travelling in Truck No.GJ-1B-7293, driven by the driver of the said truck who came to be deleted by the Tribunal itself as well as owned by the respondent nos.4 & 5 who were opponent no.2 & 3 before the Tribunal. It was the case of the claimants that in the truck, goods gravels was loaded and the deceased was travelling in the said truck and the truck met with the accident and in the accident, the deceased sustained serious bodily injuries and succumbed to the injuries. The Tribunal while replying the issue no.1, came to the conclusion that the accident occurred because of rash and negligent driving by the driver of the truck. However, so far as the liability issue is concerned, the appellant United India Insurance Co. Ltd. which was original opponent no.4 before the Tribunal, had raised legal contentions in its written- statement including contention that at the time of accident, the deceased was travelling as gratuitous passenger in the goods carriage truck. It transpires that even during the course of evidence as well as during the course of arguments on behalf of appellant- Insurance Company, the said contention came to be highlighted but ultimately, the Tribunal by judgment and award, came to the conclusion that the respondents- claimants were entitled to recover Rs.2,02,000/- by way of compensation with running interest at the rate of 9% p.a. from the date of the filing of the claim petition till realisation from opponent nos.2 to 4 viz. appellant and respondent nos.4 & 5 herein.
4. Thus, as seen above, in both these appeals, the appellants – Insurance Companies raised identical dispute regarding the liability of the Insurance Companies to indemnify the insured, as according to the appellant Insurance Companies in both the cases, the deceased persons were travelling in goods carriage vehicles.
5. Mr. Shelat learned advocate for the appellants- Insurance Companies at the outset read over the impugned judgment and award rendered by the Tribunals and submitted that the bare reading of the impugned judgment and award would suggest that the appellant Insurance Companies had raised this contention not only in written statement, but even the same was highlighted during the course of evidence as well as during the course of arguments, but though in both the cases, the Tribunal discussed such contentions having been raised, but the same were not dealt with by the Tribunal. It is submitted that so far as the impugned judgment and award rendered by the M.A.C.T.(Aux.), Rajkot is concerned, in the impugned judgment and award the Tribunal observed that the deceased was travelling in goods carriage rickshaw alongwith his goods, as sugarcane and other fruits were found scattered on the scene of accident. Mr. Shelat submitted that the concerned Tribunal disposed of by common judgment and award two claim petitions- M.A.C.P.No.336/1995 and M.A.C.P. No.349/1995 and M.A.C.P. No.349/1995 was filed by claimant- Raghubhai who in his evidence claimed to be the owner of the fruits. The deceased as well as Raghubhai admittedly travelling in goods carriage rickshaw. Mr. Shelat learned advocate further submitted that even as per the case of the claimants who happened to be the parents of the deceased, the deceased was serving as a labourer in a factory and was not doing any business as fruit vendor.
5.1 In connection with First Appeal No.4679/2006, Mr. Shelat learned advocate for the appellant United India Insurance Co. Ltd. submitted that admittedly the deceased Dharamshibhai was travelling in a truck, wherein, gravels were loaded. The claimants who happened to be brothers and widow of the deceased, contended that the deceased was travelling alongwith his goods as an owner of the goods, but before the Tribunal in the said matter, almost identical contention was raised by the appellant Insurance Company to the effect that the deceased was travelling in the truck as a gratuitous passenger and not as an owner of the goods and, therefore, the Insurance Company was not liable to indemnify the insured. Reliance was also placed upon the evidence of one of the claimants viz. Sukhlal who happened to be son of deceased, wherein, in his oral deposition before the Tribunal he admitted that as a matter of fact his deceased father missed a passenger bus and therefore, opted to travel in a goods carriage truck. In his cross-examination in Para-3, he admitted that his father was travelling in a truck wherein, gravels were loaded and those gravels did not belong to his deceased father.
5.2 Mr. Shelat learned advocate for the appellant Insurance Company has relied upon the case of 'National Insurance Company Ltd. Vs. Kaushalyadevi & Ors.' reported in (2008) 8 SCC 246 as well as in the case of 'National Insurance Company Ltd. Vs. Chaullety Bharatamma & Ors.' reported in (2008) 1 SCC 423.
5.3 Mr. Shelat learned advocate for the appellants, therefore, submitted that both these appeals may be allowed and impugned judgments and awards rendered by concerned Tribunals may be set aside qua the appellants Insurance Companies.
6. In both these appeals none appeared for the respondents including the original claimants though served.
7. As stated above, since the contentions raised on behalf of appellants- Insurance Companies in connection with these appeals is common and identical and therefore, both these appeals are heard together and are being disposed of together. In Kaushlyadevi's case (Supra) almost identical situation was there in appeal arising under the Motor Vehicle Act before the Hon'ble Apex Court. Before the Hon'ble Apex Court, the defence was regarding non-coverage of gratuitous passenger in goods carriage vehicle. In Para-14, the Hon'ble Apex Court in the said decision observed that 'the deceased was not the owner of any goods which were being carried in the truck, though he was vegetable dealer. He was not travelling in truck as an owner of goods viz. Vegetables. He was travelling in truck for the purpose other than one for which he was entitled to travel in a public carriage goods vehicle.' Similarly, in Chaullety Bharatamma's case (Supra) almost identical situation was there, as in the said case, the deceased was travelling in goods carriage vehicle. Hon'ble the Apex Court in the said matter, considering the relevant Provisions of M.V. Act inclding Section 147 of the Act, observed that the owner of the goods means only the person who travels in the cabin of the vehicle. Moreover, in Para-20 in the said decision, the Hon'ble Apex Court observed that it has not been proved that the deceased was travelling in the goods carriage vehicle along with driver or cleaner as the owner of the goods. Travelling with the goods itself does not entitle any one to protection under Section 147 of the Motor Vehicle Act.
8. Now, in the light of the ratio laid down by the Hon'ble Apex Court in the aforementioned two decisions, if the facts and circumstances and evidence in connection with First Appeal No.3157/2006 are considered, even as per the case pleaded by the original claimants, the deceased was travelling in goods carriage rickshaw. The claimants in their claim petition as well as in evidence contended that the deceased was travelling along with fruits viz. Sugarcane etc. Considering the evidence on record, it further transpires that the Tribunal, by impugned common judgment and award, also disposed MACP No.349/1995 filed by claimant Raghubhai and considering his evidence, it transpires that as a matter of fact, he was doing business as a grocer and he was keeping in his shop along with other articles the vegetables and fruits etc. Admittedly, at the time of accident, the deceased as well as Raghubhai both were travelling in goods carriage rickshaw. The Tribunal in the impugned judgment and award and more particularly, in Para-9 observed that as per the panchnama of the scene of occurrence on the road where the accident occurred, some sugarcane and other fruits were scattered. In that view of the matter, the Tribunal observed that the deceased was travelling in the goods carriage rickshaw along with his goods.
9. However, coming back to the evidence in connection with First Appeal No.4679/2006 and more particularly, considering the impugned common judgment and award rendered by M.A.C.T.(Aux.), Surendranagar, so also considering the evidence on record, the claimants, who happened to be brothers and widow of the deceased, pleaded that the deceased was travelling in good carriage truck which was loaded with gravels along with his goods. The appellant- United India Insurance Company raised specific contention not only in its written statement, but even during the course of evidence as well as during the course of argument that the Insurance Company was not liable to indemnify the insured since the deceased was travelling as a gratuitous passenger in goods carriage vehicle.
10. My attention was drawn to the evidence of claimant- Sukhlal who happened to be son of the deceased, who in his evidence categorically admitted that as a matter of fact, his deceased father was to travel in a passenger bus, but he missed the bus and therefore, he opted to travel in a goods carriage truck which was loaded with gravels. In his cross- examination also he admitted that the goods gravel which was loaded in the truck did not belong to his deceased father. Neither in that evidence nor in the
deceased was cotton business. Nothing emerges from the evidence on record that any goods connected with his cotton business was found lying on the scene of accident.
11. In above view of the matter and more particularly, considering the ratio laid down by the Hon'ble Apex Court in above referred decisions, this Court is of the opinion that in both the cases, the concerned Claim Tribunals erred in fastening the liability upon the respective appellants Insurance Companies to satisfy the awards. Both these appeals, therefore, deserve to be allowed and the impugned common judgments and awards rendered by the Tribunals deserve to be quashed and set aside qua the respective appellants Insurance companies and both the Insurance Companies are required to be exonerated from the liability of satisfying the awards.
12. So far as First Appeal No.3157/2006 is concerned, along with it Civil Application for stay No.10121/2006 was filed and as per the order dated 31.08.2006 while disposing of said stay application, this Court directed the appellant Oriental Insurance Company Limited to deposit the entire awarded amount together with interest and proportionate costs with the concerned Tribunal and upon such deposit being made, this Court directed the concerned Tribunal to invest 90% of the amount in fixed deposits with any Nationalised Bank for a period of five years with the usual conditions. The respondents- claimants were permitted to withdraw periodical interest accruing on the fixed deposits. The balance 10% amount was ordered to be disbursed to the claimants.
13. Similarly, along with First Appeal No.4679/2006, the appellant United India Insurance Company filed Civil Application for stay No.13458/2006 and while disposing of said stay application vide order dated 27.11.2006, this Court directed the appellant Insurance Company to deposit with the concerned Claim Tribunal the entire awarded amount together with interest and proportionate costs and further directed that out of the deposit amount, the Tribunal was directed to invest 80% of the amount in fixed deposits with any Nationalised Bank for a period of five years which period was renewable till final disposal of the appeal. The claimants were permitted to withdraw the interest periodically accruing on said fixed deposits. This Court permitted the respondent-
original claimants to withdraw 20% amount and the Tribunal was directed to disburse the said 20% amount to the original claimants.
14. Thus, the fact remains that so far as First Appeal No.3157/2006 is concerned, 10% amount of the awarded amount deposited by the appellant Insurance Company, has been withdrawn by the respondents- claimants and so far as First Appeal No.4679/2006 is concerned, 20% amount of the deposit has been withdrawn by respective respondents- claimants. In such a situation, this Court is of the opinion that the respective respondents- claimants should not be made liable to repay said amount. However, as stated above, in connection with First Appeal No.3157/2006, 90% amount of the deposit are lying in fixed deposits and in First Appeal No.4679/2006, 80% amount of the deposits are lying in fixed deposits. In above view of the matter, it would be just and appropriate to direct the concerned Tribunal to pay back the aforesaid amount which is lying in different F.D.R. to the concerned appellant- Insurance Company. However, so far as respondents original claimants are concerned, they are permitted to recover the amount, which is lying in the F.D.R. but which is permitted to be taken back by the appellant- Insurance Company, from the concerned original respondents (concerned owners and concerned drivers of the respective vehicles). Likewise, so far as the amount which has been already withdrawn by the original claimants and came to be disbursed by the Tribunal to the original claimants by virtue of the orders passed in Civil Applications for stay, the respective appellants- Insurance Companies are permitted to recover said amount from the drivers and insured viz. respective respondents who are joined in these appeals as drivers and owners of the concerned goods carriage vehicles.
15. For the foregoing reasons, both these appeals are allowed and the impugned common judgment and award rendered by learned M.A.C.T.(Aux.), Rajkot dated 13.01.2006 in MACP No.336/1995 is quashed and set aside qua the appellant- The Oriental Insurance Company Limited as well as the impugned common judgment and award rendered by learned M.A.C.T.(Aux.), Suredranagar dated 10/13.03.2006 in MACP No.685/1995 is quashed and set aside qua the appellant United India Insurance Company Limited.
16. As discussed above in this judgment, the respective respondents (original claimants) in these two appeals are permitted to retain with them the amount which came to be disbursed to them by virtue of orders passed by this Court. Similarly, as observed above, the respective appellant- Insurance Company is permitted to get back the amount lying in respective FDR pursuant to the above referred orders of this Court and the concerned Tribunal is directed to encash the FDRs and pay back the money lying in the FDRs to the respective appellant Insurance Company. It is hereby clarify that the respective appellant- Insurance Company shall be entitled to recover from the concerned driver and owner of the goods vehicles involved in the accident, the amount which original claimants have already withdrawn pursuant to the orders of this Court. Similarly, the original claimants are also entitled to recover from the driver and owner of the respective goods vehicles the amount, which is lying in the respective FDR but which is permitted to be withdrawn by the respective appellant- Insurance Company.
17. If, any amount deposited with this Court at the time of filing of these appeals, shall be returned to the concerned Tribunal. No costs. Record and Proceedings shall be returned back to the concerned Tribunal forthwith.
abv/g (J.C.UPADHYAYA, J)