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Judgment
J. C. Doshi
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 23.5.2024 passed by the Motor Accident Claims Tribunal, Palanpur in Motor Accident Claim Petition No.156 of 2020.
Brief facts of the case are that on 11.4.2019 at about 1-30 hours to 2-00 hours deceased Babulal Sundhiya who was serving as a Conductor in the Luxury bus No.GJ-3- AZ-8102 and when he was on duty on the Luxury bus, he was unloading goods of the passengers from the luxury bus and at that time the driver of the said Luxury bus had all of a sudden started the said bus without blowing horn of also without giving any signal. Hence, deceased Babubhai Sundhiya fell down from the bus on the road and had suffered serious fatal injuries and succumbed to it on the spot. The offence was registered before the concerned Police Station having jurisdiction. Therefore, the legal heirs of the deceased has filed aforestated claim petition u/ s 166 of the MV Act claiming Rs.6 lakh. The learned Tribunal has passed the impugned judgment and award as stated herein above.
Heard learned advocate Mr. Amit Patel for the appellant and learned advocate Mr. Kash Thakkar for the respondent Nos.1 to 5. Though served, none remained present for respondent No.6 – IFFCO TOKIO General Insurance Co. Ltd.
Learned advocate for the appellant would submit that the learned Tribunal has totally misread the insurance policy of the errant vehicle produced on record. He would further submit that under the IMT 28, the premium of Rs.150/- has been taken up. The insurance policy of the errant vehicle is a package policy and in view of IMT 28, legal liability assessed to paid driver and/or conductor and/or cleaner employed in connection with the operation of the insured vehicle. He would further submit that the issue is squarely covered by the Full Bench judgment of this Hon’ble Court in case of Valiben Laxmanbhai Thakore (Koli) Wd/ o late Laxmanbhai Ramsingbhai Thakore (Koli) and others Vs. Kandla Dock Labour Board and another, 2022(63) GLR 440. He would further submit that in view of above, the impugned judgment and award suffers from the error and deserves to be quashed and set aside and the matter is remanded back to the learned Tribunal for fresh hearing of the matter.
On the other hand, learned advocate Mr. Thakkar for the respondent Nos.1 to 5 supports the arguments canvassed by learned advocate Mr. Patel for the appellant and submitted that it is a fit case where the learned Tribunal turned blind to the IMT 28 and exonerated the insurance company from liability to pay compensation and therefore, the impugned judgment and award may be quashed and set aside and the matter may be remanded back to the learned Tribunal for fresh hearing.
Though served, none remained present for respondent No.6– IFFCO TOKIO General Insurance Co. Ltd. Hence, it appears that the respondent insurance company did not choose to contest the matter by filing any appearance of any learned advocate.
I have heard learned advocates for both the sides and also perused the R & P minutely.
At this juncture, I may refer para 24 of the impugned judgment and award, by which the learned Tribunal has exonerated the insurance company from liability to pay compensation.
“Liability
[24] The insurance policy mark 5/4 issued by the opponent No.2 shows that it is issued in the name of the opponent No.1 for the Luxury Bus No.GJ-03-AZ-8102 for the period from 03.11.2018 to 02.11.2019, covering the date of accident 11.04.2019. On perusal of the policy it appears that though the policy of the vehicle is package policy, but except additional premium of driver, no additional premium of cleaner/conductor is accepted by the insurance company in the policy. Therefore, in absence of additional premium of cleaner/conductor, the insurance company is not liable to pay any compensation to the claimants. Hence, the opponent No.2 is exonerated. Thus in view of the above discussion, the opponent No.1 who is owner of Luxury Bus No.GJ-03- AZ-8012, is held liable to pay compensation to the claimants.”
The insurance policy is produced at Mark 5/4 on the record of the claim petition. The premium of Rs.150/- has been charged under IMT 28. IMT 28 not only covers the risk of the paid driver, but has also conductor and cleaner employed in that connection. IMT 28 reads as under:-
“IMT. 28. LEGAL LIABILITY TO PAID DRIVER AND/OR CONDUCTOR AND/OR CLEANER EMPLOYED IN CONNECTION WITH THE OPERATION OF INSURED VEHICLE (For all Classes of vehicles.)
In consideration of an additional premium of Rs. 25/- 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 Workmen's Compensation Act, 1923, the Fatal Accidents Act, 1855 or at Common Law and subsequent amendments of these Acts prior to the date of this Endorsement in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured herein and will in addition be responsible for all costs and expenses incurred with its written consent.
Provided always that
(1) this Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurer or group of insurers Policy of Insurance in respect of liability as herein defined for insured's general employees;
(2) the insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations;
*(3) the insured shall keep record of the name of each paid driver conductor cleaner or persons employed in loading and/or unloading and the amount of wages and salaries and other earnings paid to such employees and shall at all times allow the insurer to inspect such records on demand.
(4) in the event of the Policy being cancelled at the request of the insured no refund of the premium paid in respect of this Endorsement will be allowed.
Subject otherwise to the terms conditions limitations and exceptions of the Policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988.
*In case of Private cars/ motorised two wheelers (not used for hire or reward) delete this para.”
It is undeniable aspect that deceased Babulal Sundhiya admittedly was riding as conductor in the offending vehicle being Luxury bus No.GJ-3- AZ-8102 and therefore, his risk under IMT 28 is covered since premium of Rs.150/- is charged by the insurance company in the policy. Moreover, in the written statement at Exh.26, no such contention has been raised by the insurance company. Yet, the learned Tribunal on his own decided the issue and exonerated the insurance company. It appears to be absolute casual approach on the part of the learned Tribunal ignoring the very command of paying just and fair compensation emerging from section 168 of the MV Act.
Apt to note that the Motor Vehicle Act, 1988 is a beneficial piece of Legislation. The concept of just and fair compensation is integral and seminal to the MV Act. The compensation to be awarded under the principle of just and fair compensation to the injured of the road accident or the legal representative/s of the deceased person is based on the principle of fairness, reasonableness and equability. Anguish of the heart or for mental turbulence being consequential result of the road accident cannot be actually compensated, but the quint essentiality lies in adopting holistic and pragmatic view to the computation of the compensation for the loss sustained, which is to be in the realm of realistic approximation. Although exact or perfect arithmetical calculation of compensation for reparation of the loss arrived from the road accident is almost impossible. The Tribunal is bestowed with duty to make an endevour to award just compensation regardless of the amount claimed by the claimants. The determination of the quantum of compensation therefore, must be liberal and not niggardly since the law values life and limb in a free country in generous scale. Needless to state that money may be awarded, so that something tangible may be procured to reach something else of the like nature, which has been destroyed or lost, but money cannot renew physical frame that has been battered and shattered being a result of the road accident. Yet Tribunal to endavour to bring back victim to stage of pre-road accident as far as possible Thus, the award must be reasonable and cannot be assessed with moderation though it cannot at the same time be pity and what could be granted must be just, fair and equitable compensation.
The learned Tribunal can also notice the definition of third party given in section 145(i) in the amended MV Act, which reads as under:-
“Third party includes government driver and other co-workers on the transport vehicle.”
Unfortunately, without paying heed to the provisions of law or IMT 28, the learned Tribunal exonerated the insurance company from liability to pay compensation. Thus, the impugned judgment and award is manifestly perverse, capricious and deserves to be quashed and set aside.
In wake of above reasons, this appeal is allowed. The impugned judgment and award is hereby quashed and set aside. MACP No.156 of 2020 is remanded back to the learned Tribunal for fresh/de novo hearing. The learned Tribunal is hereby directed to conduct fresh/de novo hearing of the claim petition in accordance with law. Both the parties are permitted to lead necessary evidence, if they so desire and the learned Tribunal shall decide the matter in accordance with law without being influenced by the impugned judgment and award so also observations made in this order.
R & P, if any, to be sent back to the concerned Court immediately.