The main legal point established in the judgment is that the insurance company cannot deny liability even if there is negligence of the driver, as long as the policy covers the risk.

JUDGMENT :

1. The claimant injured has challenged the judgment declared on 17.3.2022 by MACT (Aux), Dhari.

2. Learned advocate Mr. Joshi relying upon the judgment in the case of Valiben Laxmanbhai Thakore (Koli) Wd/o. Late Laxmanbhai Ramsinghbhai Thakore (Koli) and Others v. Kandla Dock Labour Board and Another reported in 2021 I GLR 440 submitted that though the injured claimant’s negligence has been considered as 70%, the learned Tribunal was required to grant the compensation since the policy produced on record prove covered risk of the driver and further submitted that the amount under the head of pain, shock and suffering and special diet, attendant and transportation also require reconsideration.

3. Mr. Mazmudar for the insurance company submitted that 70% negligence of the driver was observed and therefore, stated that the Tribunal has granted the amount accordingly.

4. The case of the claimant could be laid down in nut shell as under:-

The claimant on 9.1.2003 was going from Dhari to Ahmedabad by driving luxury bus of Jalaram Travels towards Dhandhuka. At about 3.00 a.m. he dashed with the truck which was parked on the road. It was stated by the injured claimant that the truck was on the road without any indication by way of light or barricade or any other mode of signal to alert the ongoing vehicle. It was stated by the applicant that he was driving the bus in a very moderate speed and the accident has occurred because of the negligence of the truck driver who had parked his truck on the road.

5. In the cross-examination, the claimant had admitted that he was glared by the light of the vehicle coming from the opposite direction and because of that the accident had occurred.

6. In case of Valiben Laxmanbhai Thakore (supra), the full bench of this Court, in paragraph-10, observed as under:

“10. Chapter XI of the Act covers the subject ‘Insurance of Motor Vehicles Against Third Party Risks’ under section 146(1) of which no person shall use a motor vehicle in public unless there is a valid policy of insurance which complies with the requirements of the chapter. Section 147 provides for mandatory requirements of such insurance policy. It deserves to be noted that as per the provisions of Section 147 r/w 149 of the Act, the risks which are covered are statutorily provided, however, parties may enter into a contract by which the insurer agrees to cover additional risks by charging / payment of additional payment. It also deserves to be noted that the policy has a clause which defines the limits of liability in respect of death or bodily injury to any person caused by or arising out of the use of the motor vehicle under section 11(i) of the terms and conditions of the policy. In proviso (b) to section II (1), which reads as under:

"Except so far as is necessary to meet the requirements of the Motor Vehicles Act, the company shall not be liable in respect of death of or bodily injury to any person in the employment of the insured arising out of and in the course of such employment”

Thus, the insurance policy would cover only the person or classes of persons specified in the policy. Thus, when the Insurance Company accepts the additional premium for legal liability to paid Driver and / or Conductor and / or Cleaner, employed in connection with the operation of the insured vehicle, by accepting additional premium as per IMT 28, the Insurance Company shall entail liability of indemnifying and legal liability is created towards paid Driver and / or Conductor and/ or Cleaner. In case when such additional premium is paid, the policy includes following clause:

“In consideration of an additional premium of notwithstanding anything to the contrary contained in the policy it is hereby understood and agreed that the insurer shall indemnify the insured against the insured’s legal liability under the Employees Compensation Act 1923 the Fatal Acci