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The Oriental Fire and General Insurance Company, Baroda Vs. Shankarbhai Punabhai and anr. Etc. Etc. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtGujarat High Court
Decided On
Case NumberFirst Appeal Nos. 1858 and 1859 of 1982
Judge
Reported inAIR1983Guj184; (1983)1GLR592
ActsMotor Vehicles Act, 1939 - Sections 95(1), 95(2), 95(4), 96(3), 110B and 110D
AppellantThe Oriental Fire and General Insurance Company, Baroda
RespondentShankarbhai Punabhai and anr. Etc. Etc.
Advocates: S.N. Soparkar, Adv. for; S.B. Vakil, Adv.
DispositionAppeals dismissed
Excerpt:
.....status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - the insurance company has been held liable to make good the claim of the claimants in these claim petitions on the basis that the concerned claimants were travelling in the insured truck as paid passengers along with their goods......appellant-insurance company which feels aggrieved by the two awards passed by the motor accident claims tribunal, godhra against the insurance company in claim petitions nos. 1 of 1981 and 2 of 1981, respectively. 2. these two petitions along with other cognate matters have been disposed of by the tribunal by a common judgment as all of them arose out, of the same accident. the insurance company has been held liable to make good the claim of the claimants in these claim petitions on the basis that the concerned claimants were travelling in the insured truck as paid passengers along with their goods. 3. to 4. xxxxx 5. that takes us to the last contention advanced by mr. soparkar in support of the appeals. he submitted that even though the insurance company is made liable to answer the.....
Judgment:

S.B. Majmudar, J.

1. These two first appeals are filed under Section 110-D of the Motor Vehicles Act by the appellant-insurance company which feels aggrieved by the two awards passed by the Motor Accident Claims Tribunal, Godhra against the Insurance Company in Claim Petitions Nos. 1 of 1981 and 2 of 1981, respectively.

2. These two petitions along with other cognate matters have been disposed of by the Tribunal by a common judgment as all of them arose out, of the same accident. The insurance company has been held liable to make good the claim of the claimants in these claim petitions on the basis that the concerned claimants were travelling in the insured truck as paid passengers along with their goods.

3. to 4. xxxxx

5. That takes us to the last contention advanced by Mr. Soparkar in support of the appeals. He submitted that even though the insurance company is made liable to answer the claim of the claimants as per the provisions of the Motor Vehicles Act, the Tribunal should have given proper declaration in that behalf in favour of the insurance company as per Section 96 (3) proviso. In order to appreciate the aforesaid contention, it is necessary to reproduce the relevant statutory provisions.

96 (3). 'Where a certificate of insurance has been issued under sub-section (4) of Section 95 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions other than those in clause (b) of Subsection (2) shall, as respects such liabilities as are required to be covered, by a policy under clause (b) of Sub-section (1) of Section 95, be of no effect:--

Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this Sub-section shall be recoverable by the insurer from that person.'

A mere look at the aforesaid provisions shows that once the factual condition as laid down by Section 96 (3) is established, a legal right flows in favour of the insurance company as provided by the prpviso. It is not as if that the Tribunal is required to give a declaration in favour of the insurance company to that effect. The legal right availably to the insurance company under such circumstances is statutorily recognised by the proviso to Section 96 (3). In view of the said statutory declaration as engrafted by the proviso itself, no fresh declaration was required to be given by the Tribunal in favour of the insurance company. It is obvious that the claim between the insurance company and the insured as flowing from the proviso to section 96 (3) could not have been made the subject matter of award by the Claims Tribunal functioning under Section 110-B of the Act. The only award of the Tribunal which is contemplated by the said provision is against the insured owner or driver of the vehicle involved in the accident. Any inter se dispute between the insurance company on the one hand and the insured on the other has to be thrashed out in separate properly instituted legal proceedings before a competent forum.Under these circumstances, it is not possible to agree with the submission ofMr. Soparkar that the Tribunal shouldhave given a declaration in favour of theinsurance company with respect to thestatutory right conferred on the insurance company as per Section 96 (3) proviso.If the insurance company has sucha right, it is to be ventilated against theinsured in separately constituted legalproceedings wherein the claimant willhave no say and would be out of picture.

6. xxxxx


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