IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 556 of 2018 With R/FIRST APPEAL NO. 555 of 2018 ==========================================================

GODAVARIBEN KHIMJIBHAI PARMAR Versus RAMESH NARSHIBHAI BALDANIYA & ORS.

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Appearance:

NISHIT A BHALODI(9597) for the Appellant(s) No. 1 MR RITURAJ M MEENA(3224) for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 1,2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 12/02/2025

ORAL ORDER

1. The present First Appeals, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellants being aggrieved and dissatisfied with the judgment and award dated 1.11.2017 passed by the Motor Accident Claims Tribunal, Rajula in Motor Accident Claim Petition Nos.836 of 2011 and 835 of 2011.

2. At the time of accident she appellant Godavariben and deceased Manishaben were travelling in tractor bearing registration No. GJ.14.D.5842. When tractor bearing registration No. GJ.14.D.5842 was coming from Kathiwadar Road to Dungar and when it reached at the place of accident Respondent No. 1 drove the tractor bearing registration No. GJ.14.D.5842 in full speed and rash and negligent manner and turned turtle besides the road. That in the said accident deceased Manishaben sustained grievous accidental injuries and succumbed to it and appellant Godavariben received injuries.

2.1 Legal heirs of deceased Manishaben has filed claim petition No.835 of 2011 u/s 163A of the MV Act claiming total compensation of Rs.5,11,000/- while the claimant Godavariben has filed claim petition No.836 of 2011 u/s 166 of the MV Act claiming compensation of Rs.3 lakh.

3. The learned Tribunal has granted compensation of Rs.3,89,500/- and Rs.40,000/- in claim petition Nos.835 of 2011 and 836 of 2011 respectively with 9% from the date of filing the claim petition till realization. However, the learned Tribunal has exonerated the insurance company from liability to pay compensation on the ground that deceased as well as appellant Godavariben were sitting on mudguard of the tractor having sitting capacity of one only and therefore, it is fundamental breach of terms and conditions of the insurance policy. The learned Tribunal has recorded findings in para 28 and 29 in the impugned judgment and award, which reads as under:-

“….I have also perused aforementioned authorities cited and relied by the Ld. Advocate for the insurance company. It is main contention of the insurance company that deceased as well as injured were travelling on the tractor as an illegal passenger as they have hired the vehicle. The said fact also reveals from the cross-examination of the applicant No. 1 of Exh. 31. In this regard, authority of New India Assurance Co. Ltd. V/s. Durgi Devi. and others, reported in 2009 ACJ 1851 cited and relied by the Ld. Advocate for the insurance company is quite applicable to this case, wherein it is held that, "Motor Vehicles Act, 1988, section 147 (1) Motor insurance Tractor Passanger risk Liability of insurance company Passanger/labourer travelling on tractor sustained fatal injuries when the vehicle met with accident Insurance company seeks to avoid its liability on the ground that policy shows that premium was paid only to cover the risk of driver and risk of labourers or passangers was not covered - Whether the Tribunal was justified in mulcting liability on the insurance company - Held: no."

29. Further, the Ld. Advocate for the insurance company has produced insurance policy at Exh. 29, wherein the period of policy has been mentioned from 23/11/2010 to 22/11/2011 and dispute between parties for insurance of the vehicle and period of the same covering date of accident. The accident has occurred on 08/06/2011 thus, the policy covers the date of accident. Moreover, on perusal of the policy, it reveals that the risk of owner cum driver, or paid driver and conductor or cleaner was cove