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Gujarat High Court
Judgename :M.S.SHAH, K.M.MEHTA
SHANTABEN WIDOW OF DECEASED KANTIBHAI PUNJABHAI VANKAR - Appellant
Versus
YAKUBBHAI IBRAHIMBHAI PATEL - Respondent
FIRST APPEAL 1343 Of 1988
Decided On : 12/28/2006
Whether claimant can claim entire amount of award of compensation for insurance inspite of there being limited liability under the Act?
Head Note :
Motor Vehicles Act, 1939 (Central Act 4 of 1939) - Sections 110-A to 110-D, 95(2)(a) and (b) - Constitution of India, 1950 - Articles 14 and 21 - Compensation - Insurance Company - Liability - Claim for entire amount from Insurance - Disputed on ground of being limited liability - Finding as to - It is contended on behalf of Insurance that third party is entitled to compensation on account of accident but in view of limited liability of Insurance under the Act the whole of the amount cannot be recovered by claimant from Insurance - Court having referred various judgments observed that there is apparent conflict of view i.e., on the one hand in the cases Division Bench of this has decided in favour of the claimants where as in the cases Division Bench has taken the view in favour of the Insurance Company - In view of the same they decided to refer the entire matter including other disputed interpretation of law to Larger Bench so that Larger Bench can decide the correctness of the views taken by the respective Division Benches of the Court - Court also observed that there are not only conflict of views but the appeal raises substantial question of general importance of right of claimant against Insurance Company - Court directed the office to place this matter before the Honble the Acting Chief Justice who may consider to constitute a Special Bench or Larger Bench to hear the appeal.
Law Laid Down :
When there is conflict of view between decisions of Division Bench matter may be referred to Larger Bench for decision.
Conclusion :
There being conflict of views in the Division Bench decision, Court directed matter to be referred to Larger Bench.
Cases Referred :
Oriental Fire & General Insurance Co. vs. Firdos Pervez Mysorewala & Ors., 2003 (2) GLR 1684;; K.S. Venkataraman & Co. (P) Ltd. vs. State of Madras,60 ITR 112 133;; Beharilal Shyamsunder vs. Sales Tax Officer, Cui. Circle, Cuttack & Anr., 60 ITR 260;; New India Assurance Co. Ltd. vs. C.M. Jaya, 2002 ACJ 271 = 2002 (1) Scale 183 = 2002 (2) SCC 278, Amrit Lal Sood vs. Kaushalya Devi Thapar, 1998 (3) SCC 744 = 1998 ACJ 531;; Oriental Insurance Co. Ltd. vs. Cheruvakkara Nafeessu, 2001 (2) SCC 491= 2000 (1) ACJ 1;; New Indian Assurance Company Limited vs. Rula, 2001 (2) GLR 1219;; New India Assurance Co. Ltd. vs. Rajabhai Varasangbhai Bharwad & Ors., 2006 (1) GLR 668;; Life Insurance Corporation of India Anr. vs. Heirs & Legal Representatives of DECD. Naranbhai Munjabhai Vadhia & Ors., 13 GLR 920;; New Asiatic Insurance Co. vs. Pessumal Dhannamal Aswani, 1964 (7) SCR 867 = 1958 (65) ACJ 559 = AIR 1964 SC 1736;; United India Insurance Co. Ltd. vs. Chandulal Gokaldas Mehta (Decd.) through Sunilbhai C. Mehta & Ors., 2003 (3) GLR 2386;; Guru Govekar vs. Miss Filomena F. Lobo & Ors., 1998 (3) SCC 1;; Oriental Insurance Co. Ltd. vs. Inderjit Kaur & Ors.,1998 (1) SCC 371;; National Insurance Co. Ltd. vs. Baljit Kaur & Ors., 2004 (2) SCC 1;; India Assurance Co. vs. Satpal Singh, 2000 (1) SCC 237;; National Insurance Co. Ltd. vs. Ajit Kumar, 2003 (9) SCC 668;; Oriental Insurance Co. Ltd. vs. Nanjappan & Ors., 2004 (13) SCC 224;; New India Assurance Co. Ltd vs. Asha Rani, 2003 (2) SCC 223;; National Insurance Co. Ltd. vs. Puja Roller Flour Mills (P) Ltd. & Ors., 2005 (11) SCC 386;; Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan & Ors., 1987 ACJ 411 = 1987 (2) SCC 654;; Sohan Lal Passi vs. P. Sesh Reddy & Ors.,1996 ACJ 1044 = 1996 (5) SCC 21;; Gulamhussen Mohmadbhai Kazi vs. Jahur Suleman Luhar & Ors., 2002 (4) GCD 3295;; National Insurance Co. Ltd. vs. Nathilal & Ors., 1999 ACJ 657;; National Insurance Co. Ltd. vs. Prembai Patel & Ors., 2005 (6) SCC 172;; National Insurance Co. Ltd. vs. Kusum Rai & Ors., 2006 (4) SCC 250;; Life Insurance Corporation of India & Anr. vs. Heirs & Legal Representatives of Deceased Naranbhai Munjabhai Vadhia & Ors., 13 GLR 920;; Cabell vs. Markham, 1945 148 F 2d 737;; Shivaji Dayanu Patil & Anr., vs. Vatschala Uttam More (Smt.) 1991 (3) SCC 530;; Gujarat State Road Transport Corporation vs. Ramanbhai Prabhatbhai,1987 (3) SCC 234;; Montreal Street Railway vs. Normandin, 1917 AC 170 = AIR 1917 PC 142;; Denning in Motor Insurers Bureau vs. Connell, 1970 ACJ 144;; Ward vs. James, 1965 (1) All ER 563 573;; R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd. & Ors., 1995 ACJ 366;; Divisional Controller, KSRTC vs. Mahadev Shetty & Anr., 2003 (7) SCC 197;; Oriental Insurance Co. Ltd. vs. Nanjappan & Ors., 2004 AIR SCW 952;; New India Assurance Co. Ltd. vs. Shanti Bai, 1995 ACJ 470 (SC);; New India Assurance Co. Ltd. vs. Ram Lal, 1988 ACJ 754 (SC);; United India Insurance Co. Ltd. vs. Shobhanaben Girishbhai & Ors., 2000 ACJ 193 = AIR 1999 Guj. 216;; Glynn vs. Margetson and Co., 1893 AC 351;; National Insurance Company vs. Jugal Kishore & Ors., 1988 ACJ 270 = AIR 1988 SC 719;; National Insurance Co. Ltd. vs. Keshav Bahadur & Ors., 2004 ACJ 648;; National Insurance Co. Ltd. vs. Swaran Singh, 2004 (3) SCC 297;; Motor owners Insurance Co. Ltd. vs. Jadavji Keshavji Modi & Ors., AIR 1981 SC 2059;; Motor Ownerss Insurance Co. Ltd. vs. Jadavji Keshavji Modi, 1982 (1) SCR 860 = AIR 1981 SC 2059;; Kaushnuma Begum & Ors., vs. New India Assurance Co. Ltd. & Ors., 2001 ACJ 428.
Decided in Favour of :
Referred to Larger Bench
Appeal Disposed of Accordingly
( 1 ) SHANTABEN widow of deceased Kantibhai Punjabhai Vankar and others, appellants-original claimants (petitioners) have filed this appeal under Section 110d of the Motor Vehicles Act, 1939 (hereinafter referred to as "the Act") against the judgement and award dated 28. 8. 1985 passed by the Motor Accident Claims Tribunal, Himmatnagar, Sabarkantha in M. A. C. Petition No. 30 of 1983. By the impugned award, the Tribunal has held that the claimants are entitled to recover a sum of Rs. 1,36,000/- from all opponents, viz. , opponent No. 1 Yakubbhai Ibrahimbhai Patel and opponent No. 2 Faquirmohmed Noormohmed Memon with proportionate costs and interest at the rate of 6% per annum from the date of the application. However, as regards Insurance Company, opponent No. 3 is concerned, the Tribu has held that the liability of the Insurance Company, is restricted to Rs. 50,000/- with proportionate costs and interest only. The Tribunal further held that all the opponents are jointly and severally liable to pay the aforesaid amount of compensation and to bear their own costs and the rest of the claim of the claimants is rejected. The Tribunal passed order for investment / disbursement also.
( 2 ) THE appellant-original claimants contended before this Court that the appellants in the claim petition claimed damages to the tune of Rs. 3,00,000/ -. As the learned Judge has awarded only Rs. 1,36,000/- and directed respondent No. 3 the New India Insurance Company Limited to answer the judgement to the extent of Rs. 50,000/- with proportionate costs and interest. That is how the appellants have filed this present appeal. However, in the memo of appeal they have confined their claim to additional damages of Rs. 14,000/- only and further prayed that the Insurance Company should be made liable to answer the entire judgement i. e. whatever claim this Court may allow in this appeal. 1 ). The original memo of appeal was filed somewhere in January, 1986. However, subsequently the appellants have amended the memo of appeal and stated that if the judgement of the Tribunal is to be upheld i. e. the liability of the Insurance Company is limited then the appellants challenge the constitutional validity of Section 95 (2) (a) and (b) of the Act on the ground that the said provisions are arbitrary, irrational, unreasonable and amount to hostile discrimination in violation of Article 14 of the Constitution of India. Thus, the constitutional validity of Section 95 was also challenged by way of amendment. The said amendment was filed somewhere in January, 1989. II. BASIC FACTS:
( 3 ) WE will first set out relevant and material facts giving rise to this appeal which are as under:
1 ). Before discussing the matter in detail, we would like to give brief resume of the judgment in this behalf. First para 3 to 3. 6 we are setting out basic facts which emerge from the record of the case. Thereafter in para 4 we have recorded tribunal findings. Thereafter we have considered the contention of Mr. M. C. Bhatt in relation to statutory provisions, policy of the Act and thereafter we have considered Division Bench judgment of Firdos Pervez Mysorewala s case which is in favour of the claimant and other subsequent judgments. However, in the said judgment, the Division Bench has considered the Constitution Bench judgment of C. M. Jaya s case. It is the case of Mr. Rajni Mehta that the Constitution Bench judgment is in favour of insurance company and the Division Bench has not properly considered the same. Thereafter we have considered Constitution Bench judgment in C. M. Jaya s case and also earlier judgment which led to the decision of C. M. Jaya s case.
1a ). Mr. Rajni Mehta has also stated that there are other contrary judgments of this Court which is taken contrary view namely Chandulal Gokaldas case that also we have considered in this behalf. 1b ). Over and above Division Bench judgment and Constitution Bench judgment, Mr. M. C. Bhatt further submitted that
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