Back
2012 (2) GCD 1563 (Guj)
[FULL BENCH]
Hon’ble Mr. Justice Jayant Patel,
Hon’ble Mr. Justice Akil Kureshi &
Hon’ble Mr. Justice R.M. Chhaya
Shantaben Widow of Deceased Kantibhai Punjabhai Vankar & Ors.
Versus
Yakubbhai Ibrahimbhai Patel & Ors.
First Appeal No. 1343 of 19881—Decided on 23/03/2012
Motor Vehicles Act, 1939 — Sections 95, 95(1), 95(b)(2) and 95(2)(a), (b) and (c) — Insurance Company — Avoidance clause in Insurance Policy — Liability of Insurance Company — Finding of — In the present group of four appeals the question across for consideration whether Insurance Company despite it’s limited liability must in so far as third party is concerned satisfy the entire award of the claim Tribunal — In view of conflict of views on the Subject between two Divisional Benches and in view of Rule 5 of Gujarat High Court Rules the Divisional Bench, referred the entire matter to Larger Bench — The Larger Bench going through the law and pronouncement of various High Courts and Apex Court on the subject opened that whenever the insurance policy contains an avoidance clause providing that nothing in the policy shall affect the right of any person indemnified by the policy or any other person by recovering amount under or by virtue of provision of the Act but further requires insured to repay to Insurance Company all such sums paid by company which the Company would not have been liable to pay but for this provision the Insurance Company can not press in service the statutory limit of liability under the Act so as claimants are concerned.
Held :
In view of the conflict of the views of the two Division Benches and in view of Rule 5 of the Gujarat High Court Rules, this Division Bench desires to refer the entire matter on the questions which are raised to the larger Bench. The office is directed to place this matter before the Hon’ble the Acting Chief Justice who may consider to constitute a special Bench or larger Bench to hear this appeal. [Para 2(17B)]
To Court mind, the entire issue is thus squarely covered by the decision of the Apex Court in the case of Vimal Devi (Supra). The attempt on the part of the Insurance Companies to read the decision in the case of C.M. Jaya (Supra) differently would not succeed. [Para 41]
Court answer to the question farmed is that wherever the insurance policy contains an avoidance clause providing that nothing in the policy shall affect the right of any person indemnified by the policy or any other person by recovering amount under or by virtue of provisions of Motor Vehicle Act, but further requires insured to repay to the Insurance Company all such sums paid by the company which the company would not have been liable to pay, but for this provision, the Insurance Company cannot press in service the statutory limit of liability under the Motor Vehicles Act insofar as the claimants are concerned. But the insured would have to repay to the company all the sums paid by the company which is in excess of its liability under the policy of insurance. [Para 42]
Law Laid Down :
Inspite of avoidance clause in the Insurance Policy the Insurance Company would be liable to meet the claim of the claimant and satisfy the award passed by the Tribunal.
R.M. Chhaya, J.—The present group of appeals arise out of judgments and awards passed by different Motor Accident Claims Tribunals described here-in-after whereby the Tribunals on interpretation of Section 95 of the Motor Vehicles Act, 1939 (the Act) restricted the liability of the insurance company limited to the statutory liability as envisaged under the Act.
2. Out of the present group of appeals, First Appeal No. 1343 of 1988 was heard by Division Bench of this Court comprising of (Hon’ble M.S. Shah & K.M. Mehta, J.J.) (as they then were) and by order dated 28.12.2006 (reported in 2007(4) GLR 3639) referred the said First Appeal in its entirety to the Larger Bench of this Court and had observed in Paragraph No. 17 as under:
“17. Why we are referring this entire matter to the larger Bench:
17A In this case the accident took place on 19.9.1982. The claimant filed claim petition in 1983. The trial Court decided the matter on 28.8.1985. The appeal was filed in 1986. Thereafter, the appeal memo was amended in 1988. We are hearing the appeal in 2006. In view of this chequered history we are of the view that instead of referring certain question of law, we may refer the entire matter to the larger Bench.
17B In view of the aforesaid discussion and in view of the conflict of the views of the two Division Benches and in view of Rule 5 of the Gujarat High Court Rules, this Division Bench desires to refer the entire matter on the questions which are raised to the larger Bench. The office is directed to place this matter before the Hon’ble the Acting Chief Justice who may consider to constitute a special Bench or larger Bench to hear this appeal.
17C Ordinarily, we would not have given reasons but in view of the important questions of law arise in this appeal, we have given the reasons for referring the matter to the larger Bench.”
3. Similarly, while concurring with the view taken by Hon’ble Mr. Justice K.M. Mehta in concluding paragraph of the said judgment Hon’ble Mr. Justice M.S. Shah had observed thus:
“In view of the fact that apart from the judgments of the two Division Benches of this Court in Oriental Insurance Co. Ltd. vs. Firdos Pervez Mysorewala, 2003(2) GLR 1684 and in New India Assurance Co. Ltd. vs. Rajabhai Vasangbhai Bharwad, 2006(1) GLR 668, relied upon by the learned Counsel for the appellant-claimant, there are three other Division Bench judgments of this Court in United India Insurance Co. Ltd. vs. Chandulal Gokaldas Mehta, 2003(3) GLR 2386, United India Insurance Co. Ltd. vs. Shobhanaben Girishbhai, 2000 ACJ 193, and Jaipur Golden Transport Company Pvt. Ltd. vs. Shri Kehaval Maganlal in First Appeal No. 159 of 1968, decided on 3.11.1971 relied upon by the learned Counsel for the Insurance Company and also subsequent Supreme Court decisions in National Insurance Co. Ltd. vs. Baljit Kaur (2004) 2 SCC 1, National Insurance Co. Ltd. vs. Puja Roller Flour Mills (P) Ltd., (2005) 11 SCC 386, National Insurance Co. Ltd. vs. Keshav Bahadur, 2004 ACJ 648 as well as in National Insurance Co. Ltd. vs. Prembai Patel, (2005) 6 SCC 172, the question of law raised in this appeal needs to be decided by a Larger Bench. I, therefore, agree with the conclusion of learned brother Hon’ble Mr. Justice K.M. Mehta, that this appeal may be placed before a Larger Bench.”
In view of the above observations, this group of appeals are placed before us.
4. The facts arising in each appeal can be summarized as under:
5. First Appeal No. 1343 of 1988:
The appellants-original claimants are the legal heirs of deceased-Kantibhai Punjabhai Vankar. The deceased was aged about 30 years at the time of the accident. The deceased was resident of Village Kanknol Tal. Himmatnagar, Dist. Sabarkantha, who was standing near S.T. Bus Station at Idar at about 10:40 a.m. On 19.09.1982, at that moment an auto-rickshaw bearing RTO registration No. GRL-94, driven in a rash and negligent manner by Respondent No. 1 herein, belonging to Respondent No. 2, knocked down t
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
