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2024 Supreme(Online)(GUJ) 25612
HIGH COURT OF GUJARAT
MR. JUSTICE J. C. DOSHI, J
NEW INDIA ASSURANCE COMPANY LIMITED – Appellant
Versus
BARODA MUNICIPAL CORPORATION – Respondent
FIRST APPEAL NO. 206 of 2013
The court affirmed that injuries sustained while entering a vehicle can be covered under the Motor Vehicles Act, but the deceased was a third party, not a driver, thus not covered by the insurance policy.
Headnote:(A) Motor Vehicles Act, 1988 - Section 173 - First Appeal against the judgment of Motor Accident Claims Tribunal - Deceased was employed as a second driver and sustained injuries while attempting to enter a bulldozer - Tribunal held deceased was a third party and not covered under the insurance policy - Insurance policy only covered third-party risks - Appellant contended that the Tribunal failed to acknowledge the deceased's status as second driver and misapplied the insurance policy terms. (Paras 2, 3, 4, 8, 10, 11)
(B) Negligence - Definition of 'use of motor vehicle' - The court reiterated that injuries sustained while entering or exiting a vehicle can fall under the jurisdiction of the Motor Accident Claims Tribunal if they arise out of the use of a motor vehicle - The concept of use includes scenarios where the vehicle is stationary. (Paras 10, 11)
(C) Evidence - The argument regarding the deceased being a second driver was rejected; the deceased was climbing the ladder of the bulldozer, establishing his status as a third party. (Paras 8, 11)
(D) The appeal was dismissed as the grounds raised were not substantiated by evidence and were raised for the first time in the appeal. (Para 12)
Findings of Court:
The appeal was dismissed, affirming the Tribunal's decision that the deceased was a third party and not covered under the insurance policy.
Issues: The main issues addressed were the status of the deceased as a second driver versus a third party and the applicability of the insurance policy.
Ratio Decidendi: The court found no evidence supporting the claim that the deceased was a second driver, emphasizing that the deceased's actions at the time of the accident were the determining factor in assessing liability.
Result: The appeal is dismissed.
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988 , is preferred by the appellant – original claimant being aggrieved and dissatisfied with the judgment and award dated 14.9.2012 passed by the Motor Accident Claims Tribunal, Vadodara in Motor Accident Claim Petition No.828 of 1996.
2. Brief facts of the case are as under:
2.1 That the deceased was working opponent No.1 - Baroda Municipal Corporation as Second Driver of Bulldozer No.430 and on 25.09.1995, he was on duty. The driver of the Municipal Corporation was driving the Bulldozer rashly and negligently and when the deceased Chandrakant was getting into the Bulldozer, the driver of the Bulldozer drove it rashly and negligently. As a result of it, Chandrakant was thrown out of the Bulldozer and sustained serious injuries and thereafter succumbed to the injuries.
3. Learned advocate for the appellant would argue that the learned Tribunal did not consider that the deceased was the second driver in the bulldozer and the risk of he being second driver is covered in the contract of the insurance policy. She would further submit that only one passenger can occupy the vehicle and it was obviously the driver of the bulldozer. The deceased was the second driver and cannot be treated as driver and therefore, his risk is not covered under the insurance policy. Since there is no sitting capacity on the bulldozer and the policy was only act only policy covering the risk of the third party only, the learned Tribunal ought not to have considered that the insurance company is not liable to indemnify the risk of the owner. She would further submit that the learned Tribunal has not considered the judgment of the Hon’ble Apex Court in case of United India Insurance Company Limited Vs. M. Lakshmi reported in AIR 2009 SC 626 .
3.1 Upon above submission, learned advocate Ms. Masumi Nanavati urges to allow the First Appeal.
4. On the other hand, learned advocate Mr. A.N. Shah appearing for the respondent – Baroda Municipal Corporation would submit that the learned Tribunal has rightly believed that the deceased was third party. He would further submit that the deceased fell from the stair of the bulldozer while climbing on the bulldozer and as such, two aspects are proved; firstly, the deceased may not be the driver of the bulldozer being errant vehicle and secondly use of motor vehicle has been established. The learned Tribunal has rightly decided this issue. He referred to para 16 of the judgment of the learned Tribunal to submit that the issue has been elaborately discussed by the learned Tribunal and no error much less error of law has been committed by the learned Tribunal to fasten the liability upon the insurance company.
4.1 Upon such submission, learned advocate Mr. A.N. Shah prays to dismiss the First Appeal.
5. Learned advocate Mr. Amit Nanavati appearing for learned advocate Mr. Trilok Patel for the respondent Nos.2.1 to 2.5 while supporting the impugned judgment and award would adopt the arguments of learned advocate Mr. A.N. Shah appearing for the Baroda Municipal Corporation and to request to pass necessary orders.
6. I have heard learned advocates appearing for the respective parties and also perused the R & P.
7. At the outset, let refer para 5 of the written statement filed by the appellant before the learned Tribunal, which reads as under:-
“The averments made in para 6 and 9 Claim Application are not admitted. It is denied that the driver Opponent
No.1, was driving the Bull dozer bearing no.4302, rashly and negligently. is denied that the deceased while entering the said bull dozer, was thrown out It on due to the negligence of the driver Opponent No.1. The of the bull dozer is very slow and it speed cannot run fast. The deceased himself, while entering on bull dozer, fell down, by his own negligence the and died on account of his own negligence, and therefore, there is not negligence on the part of the Opponent No.1, and in view of the above facts,
