FA/4520/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4520 of 2008 With CIVIL APPLICATION No. 10879 of 2008 In FIRST APPEAL No. 4520 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 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 ? ========================================================= ORIENTAL INSURANCE COMPANY LTD THRO' AUTHORISE SIGNATORY - Appellant(s) Versus BABUBHAI SHANKERBHAI PRAJAPATI & 2 - Defendant(s) ========================================================= Appearance : MR MAULIK J SHELAT for Appellant(s) : 1, None for Defendant(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 16/09/2008 ORAL JUDGMENT 1. Heard learned advocate Mr. Maulik J. Shelat appearing on behalf of appellant – Oriental Insurance FA/4520/2008 2/12 JUDGMENT Company Limited. 2. The appellant – Insurance Company has challenged the award passed by Motor Accident Claims Tribunal, Mehsana in Motor Accident Claim Petition No.1515 of 2002 dated 12th May 2008. The Claims Tribunal has partly allowed by claim and awarded compensation Rs.1,46,200/- with 9% interest in favour of respondents claimants. The Claims Tribunal has rejected the Motor Accident Claim Petition No.1516 of 2002 filed by driver of motorcycle. 3. Learned advocate Mr. Shelat raised contention relying upon the decision of Apex Court that risk of the claimant is not covered by insurance policy and Insurance Company is not liable to make any payment of compensation under Section 147 of the M.V. Act to the claimant. It is better that the grounds which are mentioned in the appeal are to be taken into account and incorporated in the said order, therefore, grounds A to D are quoted as under : “A. The Judgment and decree passed by the tribunal is contrary to law, erroneous, based on conjectures and surmise and requires to be quashed and dissatisfied. B. The tribunal has erred in saying that appellant is liable to pay award amount to applicaat-claimant-insured. It is submitted that policy in question issued as per provisions of M.V. Act, 1988 and as per FA/4520/2008 3/12 JUDGMENT section 147 of M.V. Act, risk of insured being owner of vehicle is not cover under policy. Moreover, as per policy, company has to indemnify the insured when any claim arises out of use of insured vehicle by which any person either get injured or died but policy does not cover the risk of insured himself either injured or died in said accident except personal accident coverage. Therefore, owner can not file compensation against himself as insurance company is indemnifying the insured for third party risk as per provisions of Act. The tribunal has ignored binding precedent of the Hon'ble Apex Court decision reported in 2004 (8) SCC 553, 2006 (9) SCC 174 and 2007 (9) SCC 263. C. The tribunal ought to have appreciated that as per section 147 of M.V. Act, only risk of such persons mentioned in it is covered and unless there is specific agreement between appellant and claimant insured, appellant is not liable to pay compensation under provisions of M.V. Act. However, it is submitted that in this case, insured had paid an additional premium of Rs.50/- being Compulsory PA to Owner-Driver by which a insurance cover of Rs.1,00,000/- will be paid for an unfortunate event like death of insured or permanent total disablement or both eye, hands etc., and in case of loss of one of said limb than insured is entitled of Rs.50,000/- subject to terms & conditions of policy. The tribunal has FA/4520/2008 4/12 JUDGMENT totally overlooked the said aspect of the matter and has erred in directing the appellant to pay compensation amount ignoring terms of policy. D. The tribunal ought to have appreciated that said premium is charged as per General Regulation No.36 of Indian Motor Tariff (IMT) and same is compulsory cover the risk of insured-driver with a view to cover the risk of insured upto certain extent in case of insured met with an accident and either sustained bodily injury or died as the case may be and so, insured can not get compensation in present case as injury sustained by him does not fall in any of said categories.“ 4. In support of the aforesaid grounds, following decisions are relied upon by learned advocate Mr. Shelat : 1. 1981 GLR 555 (Para 10) 2. (1986) 2 GLR 986 3. 2002 (9) SCC 655 4. 2008 (5) SCC 736 5. The contention which has been raised by learned advocate Mr. Shelat that though Insurance Company may not raise any contention before the Claims Tribunal, even though, Insurance Company, first time, is entitled to raise such contention before this Court, FA/4520/2008 5/12 JUDGMENT meaning thereby that, Insurance Company may not file written statement and remained silent or may not make any submission before the Claims Tribunal, even though, if any legal contention is available to the Insurance Company, then, same can be taken at the appellate stage before this Court. The decision which has been relied upon in support of the aforesaid contention. The claimant is an owner of the vehicle and even according to Insurance Company and considering the injury, he is not entitled any amount from the Insurance Company. The claimant was pillion rider at the time when accident occurred, but, learned advocate Mr. Shelat submitted that though claimant was pillion rider, but, his status as an owner is to be considered and therefore, owner is not entitled any amount of compensation from the Insurance Company. 6. It is necessary to consider the award passed by the Claims Tribunal. On behalf of the appellant – Insurance Company, in both the Claim Petitions, leaned advocate Mr. A.J. Desai had appeared. The accident occurred on 23rd October 2002 and claimant received injury because of motorcycle was slipped due to all of sudden break used by driver of motorcycle. Para 3, written statement is filed by Insurance Company in both the petitions, but, a specific contention was raised against Claim Petition No.1516 of 2002, but, not raised against Claim Petition No.1515 of 2002. No contention was raised in Claim Petition No.1515 of 2002. There is a reason behind it FA/4520/2008 6/12 JUDGMENT that learned advocate Mr. Desai who has appeared before the Claims Tribunal given consent to the Claims Tribunal to pass appropriate award of compensation in favour of claimant as accident is proved, age, income which proved before the Claims Tribunal. So, according to my opinion, considering Para 6 as observed by Claims Tribunal, no doubt, there is typographical error, because, unless No.1516 of 2002 is mentioned in two occasions, but, it was a mistake in typing the number. Learned advocate Mr. Desai who had appeared on behalf of Insurance Company made submissions before the Claims Tribunal that if the accident is to be proved, then, an applicant of Claim Petition No.1516 of 2002 who was driving the vehicle entitled the compensation. But, in Claim Petition No.1515 of 2002 [No doubt, it has been written in Claim Petition No.1516 of 2002], age of claimant, income, expenses are proved and that facts are to be taken into account and to award compensation with interest in favour of claimant, meaning thereby that, this award is passed by the Claims Tribunal on the basis of consent given by learned advocate Mr. Desai which has been apparently found from the observations as made referred above in Para 6. On behalf of Insurance Company, no evidence was led or documentary evidence was produced but accepted the claim by the Insurance Company before the Claims Tribunal. The disability certificate produced by the claimant of 30% which was admitted by learned advocate Mr. Desai to be considered as 12% disability and accordingly, Claims Tribunal has FA/4520/2008 7/12 JUDGMENT accepted 12% disability of the claimant and compensation has been worked out on that basis. Therefore, Claims Tribunal has awarded Rs.1,46,200 which was not objected by the Insurance Company before the Claims Tribunal. In entire award, except mentioned and referred in Para 6, learned advocate Mr. Desai had not argued and not raised any other contention except giving consent to pass award in Claim Petition No.1515 of 2002 in favour of claimant. 7. It is necessary to note that Insurance Company is a statutory company having an organization business receiving the premium form the client and issuing insurance policy accepting the risk of the owner to be indemnify in case such occasion arise before deciding that whether this award is to be challenged by the company or not. Naturally, some opinion of the advocate must have to be obtained by the Insurance Company. On the basis of the aforesaid facts which are in black and white that how the advocate has given opinion to challenge consent award and how such opinion has been accepted by the Insurance Company to challenge such consent award before this Court. Not only that but the conduct of Insurance Company is that straightway, filing the appeal before this Court as if that Claims Tribunal has committed gross error and not appreciating the legal contention and legal background of M.V. Act and awarded compensation in favour of claimant as if that is is contrary to the M.V. Act, insurance policy and contrary to the judgments of the Hon'ble Supreme FA/4520/2008 8/12 JUDGMENT Court. But, before that, Insurance Company has not thought it fit to approach the Claims Tribunal with their advocate that whether such consent was given by learned advocate Mr. Desai or not and whether Claims Tribunal has rightly relied upon such consent of learned advocate Mr. Desai or not. 8. Therefore, according to my opinion, it suggests a mood of Insurance Company to fight out upto such a height even consent award, officer of the Insurance Company has not taken any care to find out that whether appeal can be filed or not and whether it is desirable in the interest of Insurance Company or not. The attitude and conduct of the Insurance Company suggests that looking to the contention raised in appeal knowing fully well by the lawyer that no such contention was raised by learned advocate Mr. Desai before the Claims Tribunal, even though, argument has been advanced before this Court by forgetting that appellant is not entitled to raise any contention first time as a matter of right and relied upon the number of authorities which are referred above as if that they are entitled to raise before this Court irrespective of the fact that same objections were not raised before the Claims Tribunal. The meaning is that Insurance Company is not duty bound to raise such contention before the Claims Tribunal. If any legal contention is available, they can raise only in the High Court in appeal and it is not necessary to be raised before the Claims Tribunal. I failed to understand such kind FA/4520/2008 9/12 JUDGMENT of approach of Insurance Company as to whether such approach is intentional or not. But, every organized unit shall know his limit and responsibility in the Court of law. Without any worry or without having any difficulty and without even any explanation that why such contention was not raised by the advocate of the Insurance Company before the Claims Tribunal, even without such explanation, straightway, matter has been argued before this court as if that Hon'ble Supreme Court has decided it that owner is not entitled, not covered the risk in Insurance Policy. In case of injury, 50%, 100% a limit of Rs.1 lakh, but, less than injury, Rs.12,000/- is available as if that insurance policy has been issued to the owner by the Insurance Company as if that they are giving some a special benefit or obliging the owner accepting the risk. The owner who requested the Insurance Company that I want an insurance of the vehicle. They suggest the premium and accordingly, premium was paid. Normally, Insurance Company and their agent and their officers are not giving clear details to the persons those who are intended to take insurance that such type of premium will not clear the complete risk, otherwise, the owner who is prepared to pay the premium and obtained the insurance policy may not have any objection to pay some more amount to the Insurance Company. These are the difficulties to be remained because of not properly giving understanding to the owner or person who has obtained the insurance. These are the hard reality and nobody can ignored it and then, to raise all kind of contentions FA/4520/2008 10/12 JUDGMENT when compensation is to be paid by Insurance Company raising legal and technical contentions to avoid responsibility of paying compensation to the claimant/victim. 9. On this aspect, the Apex Court has rightly observed in recent decision which is delivered on 30.7.2008 in case of Dharmendra Goel v. Oriental Insurance Co. Ltd. in SLP No. 14054 of 2006. No doubt, this decision of Apex Court is under the consumer forum but, observations are squarely applicable to the facts of this case. Not only that, this case also squarely applicable to the conduct of the Insurance Co. In the aforesaid decision, the Apex Court has observed that “ we are, therefore, unable to accept the company's contention that within a span of seven month from 13th February 2002 to the date of accident, the value of the vehicle had depreciated from Rs.3,54,000/- to Rs.1,80,000/-. It must be borne in mind that Section 146 of the Motors Vehicles Act,1988 casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter 11 of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof. It is therefore, obvious that in light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they are called upon to pay compensation. This FA/4520/2008 11/12 JUDGMENT 'take it or leave it' attitude is clearly unwarranted not only as being bad in law but ethically indefensible. We are also unable to accept the submission that it was for the appellant to produce evidence to prove that the surveyor's report was on the lower side in the light of the fact that a price had already been put on the vehicle by the company itself at the time of renewal of the policy.”. The Apex Court in the aforesaid decision has further observed that “even otherwise, we believe that in such matters, the court must take realistic view and if a particular claim to compensation is possible on the material on record, it should not be denied on hyper technical pleas, as has been argued by the respondent's counsel.” 10. Therefore, I express my views with a purpose, so, in future, Insurance Company may take care when consent award is there as prudent person may not file an appeal but to approach the Claims Tribunal or to approach their advocate as to whether he has given consent or not. In this case, I am not aware about the fact that whether Insurance Company has approached to learned advocate Mr. Desai or not and whether any action is taken for its consent without permission of Insurance Company against learned advocate Mr. Desai or not. In this litigation, ultimately, sufferer is a victim. Let us presume that in case after considering all legal contention raised by learned advocate Mr. Shelat, if, this Court admits the appeal, thereafter, receiving FA/4520/2008 12/12 JUDGMENT the notice by the claimant, definitely, have a question that how the appeal is filed when advocate has given a consent, but, for that also, he has to engaged the advocate and to appear before this Court. Therefore, purposefully, this Court has examined the matter and passed the above order. Let Insurance Company may realise the difficulty of the victim in challenging such kind of award which has been passed on consent given by their lawyer before the Claims Tribunal. 11. Accordingly, when award is passed on consent which was given by advocate of the Insurance Company Mr. Desai before the Claims Tribunal, the contention raised by learned advocate Mr. Shelat is not required to be examined by this Court and decision which has been relied upon by learned advocate Mr. Shelat are not applicable to the facts of the present case. 12. Accordingly, present appeal is dismissed. 13. In view of above order passed by this Court, no order is required to be passed in Civil Application. Accordingly, Civil Application is disposed of. [H.K. RATHOD, J.] #Dave