Gujarat High Court
Arefabanu Wd/O Liyakatali Mohamadali … vs Bargar Electricity Board on 18 December, 2024
NEUTRAL CITATION
C/FA/3766/2017 ORDER DATED: 18/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3766 of 2017
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AREFABANU WD/O LIYAKATALI MOHAMADALI SAIYED & ORS.
Versus
BARGAR ELECTRICITY BOARD & ORS.
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1,2,3,4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 18/12/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellants – claimants
being aggrieved and dissatisfied with the judgment and award
dated 27.06.2017 passed by the Motor Accident Claims Tribunal,
Anand in Motor Accident Claim Petition No.169 of 2006.
2. Brief facts of the case are as under :
2.1 The brief fact of the present appeal is such that on
07.06.2003, deceased Liyakatali went to Bargar in Truck No.GJ-
7-Y-326 for unloading bags of tobacco and when he was
proceeding towards village Kalapani so as to load the goods and
when he parked his truck near Siddheshwar Rice Mill godown,
at that time, when he was taking the said truck reverse, wire of
electric line passing over the said truck had fallen over the truck
and as a result of such electrocution, the conductor Irfan and
deceased Liyakat both were seriously injured and thereafter
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deceased Liyakat succumbed to the said injuries. The legal heirs
of the deceased have filed aforestated claim petition under
Section 166 of the Motor Vehicle Act, 1988 claiming
compensation of Rs.14,02,000/-. The learned Tribunal vide
impugned judgment and award dated 27.06.2017 dismissed the
claim petition. Hence, the present appeal.
3. Heard learned advocate Mr.MTM Hakim appearing for the
claimants. Though opponents have been served, none remained
present for respondent Nos.1 to 3. Learned advocate Mr.Vibhuti
Nanavati appeared for the Insurance Company.
4. Learned advocate Mr.Hakim argued that the learned
Tribunal has failed to take into consideration that the
involvement of the vehicle in the road accident gives the
jurisdiction to the Motor Accident Claim Tribunal to decide the
claim petition under Section 166 of the Motor Vehicle Act, 1988.
Taking this Court through the facts of the case, he would submit
that deceased Liyakatali Mohammadali had lost his life while he
was taking the truck in reverse and at that time electric live wire
touched the truck and deceased was electrocuted and lost his
life. Therefore, he would submit that the claim petition under
Section 166 of the Motor Vehicle Act, 1988 was maintainable
against the Electricity Company. He referred to the judgment of
this Court in case of Shankarbhai Motibhai Prajapati and
another, heirs and legal representatives of Jignesh
Shankarbhai vs. Ishwarbhai Gangarambhai – 2013 (2) GLR
1127, to submit that even for death due to electrocution, the
claim petition is maintainable as the motor vehicle is involved in
the road accident. Assailing the impugned judgment and award,
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learned advocate Mr.Hakim would submit that learned Tribunal
has taken hyper technical view and without noticing Section 165
of the Motor Vehicle Act, 1988 wrongly believed that only Civil
Court has jurisdiction to decide the issue raised in the matter.
Motor Accident Claim Tribunal cannot decide the issue,
therefore, he submits that this appeal be allowed and the matter
may be remanded back to the learned Tribunal for fresh
decision.
5. On the other hand, learned advocate Mr.Vibhuti Nanavati
appearing for the Oriental Insurance Company Limited taking
this Court through the title of the M.A.C.P. as well as appeal and
submits that deceased Liyakatali was the driver cum owner of
the Truck No.GJ-7-Y-326 which met with the accident as while
taking the truck reverse, the live electric wire touched to the
truck and deceased Liyakatali who was driver and owner of the
truck was electrocuted and died. He submits that to maintain
the claim petition under Section 163A and 166 of the Motor
Vehicle Act, 1988, the claimants or victims of the road accident
essentially must be third party. In the present case deceased
Liyakatali himself was the owner of the truck involved in the
accident. Therefore, he cannot claim any compensation from the
Motor Accident Claim Tribunal. Learned Tribunal Mr.Nanavati
would submit that learned Tribunal has rightly assessed this
issue and dismissed the claim petition. Upon above submissions,
learned advocate Mr.Nanavati submits to dismiss this appeal.
6. I have heard learned advocates for both sides. I have also
perused the evidence on record. Relevant finding of the learned
Tribunal is as under :
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“11. The applicants have, in support of their oral
evidence, produced the copy of entry to station diary
vide Exh. 41. The accidental note was entered in Vyara
police station vide entry No. 49/2003. In the said entry
also it is specifically stated that on 7/56/2003 the
deceased was parking his truck near godown at that
time due to cyclone live electric wire was hanging over
the truck and due to the said electric live wire the electric
current had passed in the truck and due to such
electrocution he was serious injured. Thus, it becomes
clear that the deceased died due to electrocution and as
stated in the said entry due to cyclone live electric wire
was hanging and it had touched to the truck,. As such it
was the duty of the truck driver to take care to that
effect. But he had not taken care to that effect when he
was taking the truck reverse. Further more here in this
case, no facts of the occurrence of accident has been
stated. From all the facts on record it becomes clear that
such unfortunate accident was occurred within the
jurisdiction of Orissa and if at all there was live electric
wire hanging over the truck, than also it shows the
negligence on the part of the electric company and
therefore in my view if at all the applicants are entitled
to get company by proving the negligence on the part of
electric company than also they can file their complaint
within the jurisdiction of Bargadh and not here within
the jurisdiction of this tribunal. The applicants have also
produced inquest panchnama Exh. 43 and P.M. report
Exh. 43. On perusal of the P.M. report, it seems that the
deceased had died due to cardio respiratory failure due
to septicemia with rena; failure due to electric burns.
Thus here in this case, it is proved that the deceased
had died in the said accident due to electrocution. It is
also matter of fact that no any other vehicle was involved
in the accident. But due to fallen of electric live wire,
electric current had passed through truck as a result of
which the deceased was seriously burnt and died.
Further more the deceased himself was driving the said
truck and he was taking the truck reverse and he
himself was the owner of the truck and therefore also in
my view if at all it is pleaded that due to vehicular
accident the legal heirs are entitled to get compensation
than in that case tort feasor cannot claim for his own
negligence and due to implication of such principle the
legal heirs of deceased cannot claim for the negligence
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on the part of the deceased himself because due to
negligence of the driver of the driver of the vehicle, owner
is vicariously liable to pay compensation. Here in this
case, the deceased himself was the driver-cum-owner of
the vehicle and therefore the claim for compensation is
not maintainable before this tribunal. But if at all it is
their case that due to fault on the part of the electric
company than in that case the legal heirs can file their
claim petition under the law of tort and that too before
the Civil Court of Orissa and not here in M.A.C. Tribunal.
The ld. Advocate for the insurance company has in her
written submission specifically raised this point that at
the time of accident the deceased himself was driving
the truck and he was taking the truck reverse as per the
instruction of conductor and at that time due to fall of
electric live wire there was electrocution and deceased
driver was serious injured and thereby submitted that
insurance company is not liable to pay any
compensation. The ld. Advocate for the insurance
company has also submitted that the tribunal is
constituted as per the section 165 of Motor Vehicle Act
which is empowered to adjudicate upon calm for
compensation in respect of the accident involved the
death or bodily injury to a person arising out of the use
of the motor vehicle or damage to any third party so
arising or both. Thus in view of the said provision of the
act, it is made Clare that tribunal is constituted and
empowered to adjudicate the claim of third party against
the driver, owner and insurance company as the case
may be. Further, there is no provision under which
empowered the tribunal to adjudicate the claim of owner
and or person claiming through owner against the
insurer. The ld. Advocate for the insurance company has
relied upon the judgment of Hon’ble High Court of
Gujarat reported in 2017 (1) GLH 279 and also 2011 (2)
GLR 1003 in a case of National Ins. Co. Ltd. V/s. Hitesh
Patel, wherein it was held that tribunal cannot award
against the insurance company. I have gone through the
judgment relied upon by the ld. Advocate for the
insurance company. Having gone through the judgment
relied upon by the insurance company it becomes very
clear that our Hon’ble High Court of Gujarat has also
very specifically settled the principles that tribunal
cannot award compensation to the claimant being P.A.
cover to claimants being P.A. cover to owner driver under
the policy. The Hon’ble High Court has also very clearly
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settled that tribunal constituted is empowered to
adjudicate claim of third part against driver, owner and
insurer as the case may be and there is no provision
under the act which empower to tribunal to adjudicate
claim of owner or person claiming through owner against
insurer. The Hon’ble High Court has also in a case of
National Ins. Co. Ltd. V/s. Hitesh Patel reported in 1022
(2) GLR 1003, very clearly held that legal heirs would not
be entitled to compensation when death of owner in
accident wherein no other vehicle was involved. It has
been also held that owner cannot himself be a recipient
of compensation as liability to pay the same is on him.
Here in this case also the deceased Liyakatali was the
owner and driver of the truck involved in the accident
and therefore the legal heirs cannot file their claim
against the deceased owner cum driver, and therefore in
my view this tribunal cannot grant any compensation
against the insurance company and therefore in my view
there is no question of computing the quantum of
compensation. So far as the claim of the claimants
against the Bargarh Electric Board is concerned, the
applicants can file their claim under the law of tort and
that too withi the territorial jurisdiction of Civil Court,
Bargarh, and not within the jurisdiction of this tribunal
and therefore also the present colaim petition is not at all
maintainable even against the opponents No. 4 Bargarh
Electric Board, and therefore I answer issue No. 1 in
affirmative that the deceased died due to accident
arising out of use of the motor vehicle involved in the
accident but I answer issue No. 2 in negative that the
applicants are not entitled to get any compensation
against the opponents No. 3 and 4 and therefore I
answer issue No. 2 in negative.”
7. It is undoubtedly clear that deceased himself was the
owner of the truck which was involved in the accident. He was
also driver of the truck and while he was taking the truck in
reverse in State of Odisha, live electric wire hanging over the
truck snapped and due to which deceased Liyakatali received
serious burn injuries and died due to the cardio respiratory
failure and due to septicemia with renal. It is not in dispute that
the claimants being legal representatives of the deceased
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Liyakatali have preferred the claim petition against their own
Insurance Company i.e. insurer company for Truck No.GJ-7-Y-
326 which was owned by the deceased Liyakatali Mohammadali
as well as against electricity company. It is settled principle of
law that the claimants being legal representatives of deceased
Liyakatali Mohammadali who was the owner of the truck No.GJ-
7-Y-326 cannot prefer any claim petition against their own
Insurance Company. In Dhanraj vs. New India Assurance
Company Limited – 2004 (8) SCC 553, the Hon’ble Supreme
Court in para 7 and 8 held as under :
“7. We have seen the Policy. It is a comprehensive
policy. The question that arises is whether a
comprehensive Policy would cover the risk of injury to
the owner of the vehicle also. Section 147 of the Motor
Vehicles Act, 1988 reads as follows:-
“147. Requirements of policies and limits of liability. – (1)
In order to comply with the requirements of this Chapter,
a policy of insurance must be a policy which –
(a) is issued by a person who is an authorized insurer; or
(b) insurer the person or classes of persons specified in
the policy to the extent specified in sub-section (2) –
(i) against any liability which may be incurred by him in
respect of the death of or bodily injury to any person,
including owner of the goods or his authorized
representative carried in the vehicle or damage to any
property of a third party caused by or arising out of the
use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger
of a public service vehicle caused by or arising out of the
use of the vehicle in a public place:
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of
and in the course of his employment, of the employee of
a person insured by the policy or in respect of bodily
injury sustained by such an employee arising out of andPage 7 of 11
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in the course of his employment other than a liability
arising under the Workmen’s Compensation Act, 1923 (8
of 1923) in respect of the death of or bodily injury to, any
such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of
the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation.#For the removal of doubts, it is hereby
declared that the death of or bodily injury to any person
or damage to any property of a third party shall be
deemed to have been caused by or to have arisen out of,
the use of a vehicle in a public place notwithstanding
that the person who is dead or injured or the property
which is damaged was not in a public place at the time
of the accident, if the act or omission which led to the
accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of
insurance referred to in sub-section (1), shall cover any
liability incurred in respect of any accident, up to the
following limits, namely:–
(a) save as provided in clause (b), the amount of liability
incurred;
(b) in respect of damage to any property of a third party,
a limit of rupees six thousand:
Provided that any policy of insurance issued with any
limited liability and in force, immediately before the
commencement of this Act, shall continue to be effective
for a period of four months after such commencement or
till the date of expiry of such policy whichever is earlier.”
8. Thus, an insurance policy covers the liability
incurred by the insured in respect of death of or bodily
injury to any person (including an owner of the goods or
his authorized representative) carried in the vehicle or
damage to any property of a third party caused by or
arising out of the use of the vehicle. Section 147 does notPage 8 of 11
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require an Insurance Company to assume risk for death
or bodily injury to the owner of the vehicle.”
9. In case of Oriental Insurance Company Limited vs.
Sunita Rathi – 1998 (1) SCC 365, it has been held that the
liability of the Insurance Company is only for the purpose of
indemnifying the insured against liability incurred towards third
person or in respect of damage to property. Recently the
coordinate Bench of this Court in case of Iffco-Tokya General
Insurance Company Limited vs. Geetaben wd/o. Nileshbhai
Babubhai Soni – 2024 (4) GLR 2658, after referring to the
judgments of New India Assurance Company Limited vs.
Prabha Devi and another – 2013 (14) SCC 719, New India
Assurance Company Limited vs. Sadanand Mukhi and others
– 2009 (2) SCC 417, Oriental Insurance Company Limited vs.
Rajni Devi and others – 2008 (5) SCC 736 and Ningamma and
another vs. United India Insurance Company Limited – AIR
2009 SC 3056, held that the owner of the vehicle cannot claim
from his own insurer. In the present case, the claimants who are
legal heirs of deceased Liyakatali Mohammadali, owner of the
Truck No.GJ-7-Y-326 cannot claim any compensation from its
own Insurance Company and therefore, the claim petition filed
against its own Insurance Company is not maintainable.
10. An argument was also canvassed to the extent that
deceased was the driver of the truck and when he was
electrocuted due to coming into contact with live hanging wire,
which was loosen and therefore, petition for claiming
compensation was maintainable before the Motor Accident Claim
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Vehicle Act, 1988 as use of motor vehicle is involved in the road
accident. The submission is ill-founded, illogical and based on
mistaken belief. To maintain the claim petition before the Motor
Accident Claim Tribunal formed under Section 165 of the Motor
Vehicle Act, 1988, essentially the claimant needs to be third
party. If third party receives any injury or died due to use of
motor vehicle including touching with the live electric wire,
certainly the claim petition is maintainable before Motor
Accident Claim Tribunal. In the present case, the deceased was
the owner of the truck which came into contact with loosen and
hanging live electric wire. The deceased was, therefore, not a
third party. The deceased was owner of the vehicle and he
cannot maintain claim petition under Section 166 of the Motor
Vehicle Act, 1988 before the Motor Accident Claim Tribunal. If
the legal heirs of deceased are so advised they can prefer
necessary proceedings in the Civil Court but the Motor Accident
Claim Tribunal is not empowered to adjudicate his cause for
death or bodily injury as he is not the third party.
11. As far as judgment in case of Shankarbhai Motibhai
(supra) upon which learned advocate Mr.MTM Hakim relied
upon is concerned, it is a case where deceased Jignesh was
playing cricket and during the play the ball went on cabin of the
truck which was lying stationary on road side below the electic
line. Deceased Jignesh climbed on the stationary truck to pick
up the ball and while he picked up the ball and throwing ball, he
touched electric wire passing about truck and as a result he
sustained burn injury all over his body and succumbed to
injury. In this factual background since deceased Jignesh was
third party, the coordinate Bench of this Court believed that thePage 10 of 11
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Motor Accident Claim Tribunal has jurisdiction to adjudicate the
claim petition under Section 165 of the Motor Vehicle Act, 1988.
The decision on this factual aspect would not avail any
assistance to the present appellants – claimants. At the cost of
repetition, it could be said that in case on hand the deceased
was not the third party but the owner of the truck involved in
the accident. I may refer to para 19 of the judgment in case of
Shankarbhai Motibhai (supra) as under :
“19. Since the truck in question is involved in the
accident upon which the victim climbed, the proceedings
under section 166 of the MV Act is very much
maintainable. The Claims Tribunal constituted under the
Motor Vehicles Act is entitled to maintain an application
where other agencies than a motor vehicle is also
contributing to causing the accident. [See GUJARAT
STATE ROAD TRANSPORT CORPORATION V/s. UNION
OF INDIA & ORS. reported in 1987(1) GLH 344]. In the
case before me, but for the parking of the stationary
vehicle, the accident could not have occurred. Similarly,
the Electricity Company’s negligence is the sole cause
and, therefore, the Tribunal is also entitled to adjudicate
the liability between the owner of the vehicle and the
Electricity Company when the fatal accident occurred by
the use of a motor vehicle in a public place.”
12. In view of above reason, this appeal sans merit and it is,
accordingly, dismissed. Registry is directed to send back the
record and proceedings, if any, to the concerned Tribunal,
forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
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