FA/6580/1998 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 6580 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ======================================================= KODARBHAI DHULABHAI PATEL - Appellant(s) Versus AJAYKUMAR MAGUMAL GANDHI & 2 - Defendant(s) ======================================================= Appearance : MR JV JAPEE for Appellant(s) : 1, MR KINARIWALI for MR SUBHASH G BAROT for Defendant(s) : 1 - 2. MR SANDIP C SHAH for Defendant(s) : 3, ======================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/01/2008 ORAL JUDGMENT 1. By way of this appeal, the appellant has challenged the judgment and order passed by FA/6580/1998 2/7 JUDGMENT the Motor Accident Claims Tribunal, Sabarkanth in M.A.C.P. No.579 of 1990 dated 10.07.1998. 2.1 The brief facts of the case are that, on 31.10.1989, after returning from Badarpura, the appellant boarded in a jeep bearing Registration No.GAQ 5538, which was driven by the opponent no.1 with an excessive speed and in rash and negligent manner. When they reached near Barvan Kampa, the jeep had turtled and as a result of that, the appellant sustained injuries on his body and, hence, he was shifted to Civil Hospital, Idar in an autorickshaw for treatment, from where, he was advised to take treatment from Orthopedic surgeon. The claim petition was filed before the Tribunal. 2.2 In the said application, after hearing the parties, the Tribunal passed impugned judgment and award directed the opponent nos.1 and 2 to pay Rs.27,500/- jointly and severally to the appellant together with FA/6580/1998 3/7 JUDGMENT interest @ 12% from the date of application till realization with proportionate. However, the Tribunal exonerated the opponent no.3 i.e. the New India Insurance Company from the liabilities to pay compensation relying upon the contract note between the parties. Since, the appellant was not satisfied with the said compensation, he has preferred the present appeal. 3. Learned Advocate for the appellant has submitted that the Tribunal has committed an error in exonerating respondent No.3 from the liability to pay compensation. Hence, the impugned judgment and award deserves to be quashed and set aside. 4. Contention raised by the learned counsel for the appellant is regarding Clause-5, which reads as under :- I.M.T.5. Personal Accident cover to unnamed Passengers other than the Insured and his paid Driver or Cleaner In consideration of the payment of an additional premium it is hereby understood and agreed that the Company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger other than the insured and/or his paid driver attendant or cleaner FA/6580/1998 4/7 JUDGMENT and/or a person in the employ of the Insured coming within the scope of the Workmen's Compensation Act;1923 and subsequent amendments of the said Act and engaged in and upon the service of the Insured at the time such injury is sustained whist mounting into dismounting from or travelling in but not driving the motor car and caused by violent accidental external and visible means which independently of any other cause shall within three calendar months of the occurrence of such injury result in : a) Death only b) Total and irrecoverable loss of : i) sight of both eyes or of the actual loss of sight of one eye and such loss of one entire hand or of one entire foot. ii) Use of two hands or two feet, or of one hand and one foot or of such loss of sight of one eye and such loss of use of one hand or one foot. c) Total and irrecoverable loss of : i) the sight of one eye of the actual loss by physical separation of one entire hand or one entire food ii) Use of a hand or a food without physical separation. 5. Mr.Kinariwala appearing for the owner states that though the appeal was preferred by the owner, it was withdrawn and in that view of the matter, he submitted that the original owner has withdrawn the appeal and as per the quantum, the Insurance Company is required to make payment and the owner is not liable to make the payment. 6. On the other hand, learned counsel for the FA/6580/1998 5/7 JUDGMENT opponent No.3, Mr.Shah has contended that the Tribunal has rightly exonerated the opponent No.3 from the liability to pay compensation on the ground that the deceased was a gratuitous passenger, and therefore, no case is made out for calling for interference of this Court. Mr.Shah has further contended that the finding of the Tribunal is just and proper, more particularly when the term of the contract was explained by the Manager (Exh.43) and same is with the Insurance Company and not with the claimant. Even otherwise, the claim was preferred against the personal accident, therefore, this amount cannot be paid under the Motor Vehicle Act. 7. I have heard learned counsel appearing for the respective parties. The Tribunal while considering the liability of the Insurance Company has dealt with the same in detailed in the impugned judgment at in para no.17 and same is required to be confirmed, which reads as under :- FA/6580/1998 6/7 JUDGMENT “the insurance company is not liable for any amount of compensation and in support of this submission he has drawn my attention to the oral evidence- cross examination of the application at- Ex.31 where in, he has admitted that he had taken lift for the vehicle in question and that he had not paid any amount by way of fare for the same. He has also admitted that the vehicle in question was of private ownership.” 8. It may be noted that the claim was for the personal accident and not covered by Insurance Company. Apart from that, the Insurance Company has not raised the contention so far as the claimant can very well recover from the owner, but on omission on the part of the owner, the Insurance Company cannot be held liable 9. Considering the submissions made on behalf of the parties and having regard to the facts and circumstances of the case, contention raised by the learned counsel regarding explanation tendered by the Insurance Manager is required to be accepted. 10. It is required to be noted that no written statement was filed by the owner of the vehicle and the contention which has been raised in this appeal were not raised by the FA/6580/1998 7/7 JUDGMENT owner, which is special contract between the parties. 11. In above view of the matter, I am in complete agreement with the view taken by the Tribunal and, hence, the present appeal deserves to be dismissed. 12. In the result, the appeal is dismissed. No order as to cots. Sd/- (K.S.JHAVERI, J.) /patil