Back
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.G. SHAH, J.
NATIONAL INSURANCE CO LTD. - Appellant
Versus
JABUBEN NARANBHAI BHARWAD - Respondent
First Appeal No. 1791, 1792 of 2015
Decided on : 29-01-2019
Motor Vehicle Act – Motor Accident - Basic issue raised in both the appeals regarding liability of the Insurance Company to pay compensation to the claimants are common in both the appeals – As the Insurance Company has mainly contended about their liability based upon cancellation of policy by them, there is no much dispute with reference to nature of incident and its result and therefore, those details are not much relevant to be reproduced herein. It is well described in the pleadings as well as in the impugned award. However, when two vehicles are involved in the accident and legal heirs of one of the victim of accident being driver of one of the vehicle – Held, Cancellation of policy is not warranted and when even there is no proper evidence on record that policy was properly cancelled, and more particularly, when cancellation of policy would be limited only for Own Damage and Theft Claims, the liability of Insurance Company cannot come to an end even if policy is cancelled for Own Damage, for the risk of third party, which is statutory and when provision of Section 149 categorically confirms that notwithstanding that the insurer may be entitled to avoid or cancel the policy, the insurer shall subject to the provisions of Section 149, pay to the person entitled to the benefit of the decree – Appeal dismissed (Paras 20,21)
Facts of the Case:
When deceased victims of road accident being Naranbhai Bharwad and Shardulbhai Bharwad along with Chaganbhai Rajabhai Bharwad and Rasulbhai Mansuri, thereby, in all five passengers were travelling in Fiat Car No.GBE-7329, near Pirana Toll Naka, one Truck No.RNS-2931 had dashed the Fiat Car and there was head-on collusion between both the vehicles. It is undisputed fact that Fiat Car was being driven by Shardulbhai Bharwad, and Shardulbhai Bharwad as well as Naranbhai Bharwad had received fatal injuries in the accident
Finding of the Court:
Cancellation of policy is not warranted and when even there is no proper evidence on record that policy was properly cancelled, and more particularly, when cancellation of policy would be limited only for Own Damage and Theft Claims, the liability of Insurance Company cannot come to an end even if policy is cancelled for Own Damage, for the risk of third party, which is statutory and when provision of Section 149 categorically confirms that notwithstanding that the insurer may be entitled to avoid or cancel the policy, the insurer shall subject to the provisions of Section 149, pay to the person entitled to the benefit of the decree
Result: Appeal dismissed
S G SHAH, J.
1. Heard learned advocate Mr. Rushang D.Mehta appearing with Mr. Dakshesh Mehta for the appellant, learned advocate Mr. R.K. Mansuri for respondent No.1 and learned advocate Ms. Shivangi M.Rana for respondent No.4 in both the First Appeals. Rests of the respondents, though duly served, have remained absent. Perused the record as well as original R & P of the Tribunal.
2. Both these appeals are arising out of the common judgment and order dated 20.11.2014 in M.A.C.P. Nos.650 of 1998 and 651 of 1998 by the M.A.C.T. of Ahmedabad (Rural). Therefore, both these appeals are heard together and decided by this common CAV judgment, since basic issue raised in both the appeals regarding liability of the Insurance Company to pay compensation to the claimants are common in both the appeals.
3. As the Insurance Company has mainly contended about their liability based upon cancellation of policy by them, there is no much dispute with reference to nature of incident and its result and therefore, those details are not much relevant to be reproduced herein. It is well described in the pleadings as well as in the impugned award. However, when two vehicles are involved in the accident and legal heirs of one of the victim of accident being driver of one of the vehicle have also preferred claim petition, it would be appropriate to record the basic facts, that on 3.4.1998, when deceased victims of road accident being Naranbhai Bharwad and Shardulbhai Bharwad along with Chaganbhai Rajabhai Bharwad and Rasulbhai Mansuri, thereby, in all five passengers were travelling in Fiat Car No.GBE-7329, near Pirana Toll Naka, one Truck No.RNS-2931 had dashed the Fiat Car and there was head-on collusion between both the vehicles. It is undisputed fact that Fiat Car was being driven by Shardulbhai Bharwad, and Shardulbhai Bharwad as well as Naranbhai Bharwad had received fatal injuries in the accident.
4. Because of such accidental death, legal heirs of Naranbhai Bharwad has claimed Rs.5 Lakhs as compensation by filing M.A.C.P. No.650 of 1998; whereas, legal heirs of Shardulbhai Bharwad have also claimed Rs.5 Lakhs as compensation by filing M.A.C.P. No.651 of 1998. In claim petition by legal heirs of Naranbhai Bharwad, legal heirs, driver and owner of Fiat Car are also joined as opponents; whereas, in claim by legal heirs of Shardulbhai Bharwad, the petition is only against the driver, owner and insurer of Truck. It seems that Fiat Car was not insured since no such Insurance Company was joined on record; whereas, Truck was insured with present appellant being opponent No.2 in both the claim petitions.
5. After allowing litigants to adduce their evidence, by impugned judgment and award dated 20.11.2014, the Tribunal has awarded an amount of Rs.4,79,400/- in M.A.C.P. No.650 of 1998 and Rs.4,79,700/- in M.A.C.P. No.651 of 1998.
6. The Tribunal has fixed the liability of Truck owner for the accident and thereby, sole responsibility to pay compensation rests upon owner and insurer of the Truck only. Being aggrieved by such judgment, when Insurance Company of the Truck has challenged such award, it is mainly contended by learned advocate for the appellant that owner of the Truck was not holding valid insurance policy so as to cover the date of accident and therefore, Insurance Company cannot be saddled with the liability by indemnifying the owner by making payment of compensation to the claimants.
7. Since both the claim are of fatal accident, the evidence by the claimants is certainly by their widows and therefore, when one of the driver of vehicle had died in the same accident, the entire burden regarding proof of negligence, so also liability, rests upon opponents No.1 and 2 being the owner and insurer of Truck. It seems that Insurance Company has taken a stand that they have paid the damages to the vehicle for some previous incident and at that point of time, policy had been cancelled and therefore, Insurance Company cannot be held liable to pay compe
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
