C/FA/635/2023 JUDGMENT DATED: 30/04/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 635 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/FIRST APPEAL NO. 635 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HDFC ERGO GENERAL INSURANCE CO. LTD.
Versus
SHAHIN WD/O. ARSHAD SHAMIM SAIFI & ORS.
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 30/04/2024
ORAL JUDGMENT
1. Challenge is given by the insurance company to the
judgment dated 21.10.2022 passed by MACT (Main),
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Panchmahals at Godhra in MACP no.642 of 2013.
2. The case of the claimant as was urged before the
Tribunal was to the effect that on 31.3.2012, the
deceased was going on his motorcycle bearing
registration no. GJ-18 R-561 of the ownership of
the opponent no.1 for buying dinner. At about
00.45 hrs., he was passing from Godhra - Vadodara
highway road, opposite Reliance Petrol Pump,
suddenly a dog came on the road and to save the
dog, motorcycle got slipped and he fell on road
and received multiple injuries and succumbed to
death. It is the case of the insurance company
that the deceased stepped into the shoes of the
owner and the insurance company would be liable to
pay the compensation amount in accordance to the
contractual liability if at all drawn through the
policy.
3. Mr. R.P. Raval, learned advocate for the appellant
submitted that here in the present case, P.A.
cover for owner driver is to the extent of Rs.1
lac and thus, the claimant’s entitlement would be
only to the limit of Rs.1 lac. Mr. Raval submitted
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C/FA/635/2023 JUDGMENT DATED: 30/04/2024
that the Tribunal has fallen in error to grant
compensation of Rs.4,17,500/-.
4. In the case of Ram Khiladi & Ors. v. United India
Insurance Company Ltd., (2021) 2 SCC 550, it has
been held that the claim of owner/borrower/
permissive user would be limited to personal
accident coverage on use of vehicle strictly as
per contract of insurance covering the borrowed
vehicle.
5. While countering the arguments, Mr. Modi referring
to the judgment of the Tribunal submitted that the
negligence aspect cannot be looked into when the
prayer is made under Section 163A of the Motor
Vehicles Act and submitted that the amount would
be paid as per the schedule to the said section.
6. The two wheeler liability only policy with respect
to involved vehicle which admittedly is of the
ownership of the opponent no.1. The policy shows
the insured name as Mohammad Sarin Mirza who is
opponent no.1. The P.A. cover for owner driver is
Rs.1 lac and in absence of contract, no
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C/FA/635/2023 JUDGMENT DATED: 30/04/2024
compensation amount can be paid when the policy
does not cover the risk. Here the contractual
liability for the owner is Rs.1 lac and since the
deceased as borrower of vehicle stepped into the
shoes of the owner, the claimant as heir and legal
representative would be entitled for the said
amount of Rs.1 lac.
7. In the result, the impugned judgment and order
stands modified and the insurance company would be
held liable to pay the amount of Rs.1 lac to the
claimants.
8. It is submitted that the award amount of
Rs.4,17,500/- along with the interest has been
deposited before the Tribunal. Let the amount of
Rs.1 lac with accrued interest be paid to the
claimants and the remaining amount be refunded
back to the insurance company along with accrued
interest on the said amount. Let the amount as
stated hereinabove be paid to the claimants
RTGS/NEFT on verification of the identity in the
proportion as declared by the Tribunal.
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C/FA/635/2023 JUDGMENT DATED: 30/04/2024
9. The impugned judgment and award be modified
accordingly. The appeal is partly allowed.
Registry is directed to send the record and
proceedings back to the Tribunal, if received.
(GITA GOPI,J)
Maulik
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