FA/368/1988 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 368 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? -Yes. 2 To be referred to the Reporter or not ? -No. 3 Whether their Lordships wish to see the fair copy of the judgment ? -No. 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 ? -No. 5 Whether it is to be circulated to the civil judge ? -No. ========================================================= NATIONAL INSURANCE CO LTD - Appellant(s) Versus JADEJA DASHRATHA WD/O ANOPSINH DIPSINH & 5 - Defendant(s) ========================================================= Appearance : MR MD PANDYA for Appellant(s) : 1, MR BB NAIK for Defendant(s) : 1 - 4. MR ND NANAVATI for Defendant(s) : 5 - 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 12/05/2008 ORAL JUDGMENT 1. By way of this appeal, the appellant-National Insurance Company Ltd., original opponent no.3 has challenged the FA/368/1988 2/5 JUDGMENT judgment and order dated 15/7/1986 passed by the Motor Accident Claims Tribunal (Auxiliary), S.K. At Himmatnagar in the Motor Accident Claim Application No.347 of 1983 whereby the Motor Accident Claims Tribunal has partly allowed the petition and awarded the amount of compensation of Rs.69,500/- with interest at the rate of 6% per annum from the date of the application till realization with proportionate costs. 2. The facts in brief leading rise to filing of the appeal is as under: 2.1) The Claim Petition is filed by the legal heirs and representatives of Shri Anopsinh Dipsinh who is deceased victim of motor accident to get compensation of Rs.1,50,000/-, as per the provisions contained in Section 110-A of the Motor Vehicles Act. On 6/3/1983 Shri Anopsinh Dipsinh was employed as a labourer to load an unload bamboos and other wooden pieces in tractor No.GAD 8451 attached with trailer No.GRN 8461, by opponent no.1, who was driver. The opponent no.1 was driving the tractor on Navagam to Rellavada Road. When the tractor was passing in the sim of village Jitpur, the opponent no.1 was driving the vehicle with an excessive speed and in negligent manner so, Shri Anopsinh Jadeja who was setting on the mudguard of the tractor was thrown of and he was ran over by the wheel. He was seriously injured and died after two hours of the accident. FA/368/1988 3/5 JUDGMENT 2.2) On completion of the pleadings, the Tribunal has awarded the compensation of Rs.69,500/- as stated above. Hence, this appeal. 3. The contention of the learned counsel for the appellant is that the liability of the insurance company is limited under the Workmen Compensation Act and other contention raised by the learned counsel for the appellant is regarding contributory negligence. 4. The learned counsel Mr.P.A.Bhatt for learned advocate Mr.B.B.Nike for the respondent and learned advocate Mr.Yash Nanavati for learned advocate Mr.N.D.Nanavati have supported the award order of the Tribunal. 5. Heard the learned counsel for the respective parties and perused the documents on record. On the first point regarding limited liability, the Tribunal has considered the matter in para 10 of the judgment in detail. Consideration made by the Tribunal in Para 10 of the judgment reads as under: “The learned advocate for the Insurance Company argued that the compensation should be awared on the basis of Workmen's Compensation Act. He had relied on the case FA/368/1988 4/5 JUDGMENT of M/s. Oriental Fire & General Insurance Co. Ltd. v. Alamelu and others, AIR 1983 Madras 221. In that case it is held that the limit of liability contained in Section 95 of the Motor Vehicles Act would be one under the Workmen's Compensation Act in relation to an employee. But it is not possible for me to agree with that observation. If the workmen had chosen to file a claim before MACT, the Tribunal can award compensation to him as calculated on the basis of law of tort. The word “Including the liabilities, if any, arising under “Workmen's Compensation Act, 1923” occurring in Clause (a) of Sub-section (2) of Section 95 of the Motor Vehicles Act implies that Insurer is liable for common law damages also and not only liabilities arising under the Workmen's Compensation Act.” 6. In that view of the matter, the contention raised by the Insurance Company is devoid of any merits and deserves to be dismissed. 7. Considering the documentary evidence on record, I am of the view the the Tribunal has rightly awarded the amount of compensation. The amount of compensation is just and proper which requires to be approved and therefore, the same is approved. I am in complete agreement with the findings of the Tribunal. No case is made out to interfere. Hence, the appeal FA/368/1988 5/5 JUDGMENT deserves to be dismissed. 8. For the foregoing reasons, the appeal is dismissed with no order as to costs. (K.S.Jhaveri, J.) (ila)