HEIRS OF DECEASED GAUTAMBHAI RAMJIBHAI KALARIYA vs BHANJIBHAI DHANJIBHAI BARASARA
- Court
- Gujarat High Court
C/FA/1167/2018 (GJHC240153472018) JUDGMENT DATED: 07/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1167 of 2018
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HEIRS OF DECEASED GAUTAMBHAI RAMJIBHAI KALARIYA & ORS.
Versus
BHANJIBHAI DHANJIBHAI BARASARA & ANR.
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Appearance:
JENIL M SHAH(7840) for the Appellants
MR RAMESH K PARMAR(6466) for the Defendant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
MR Y J PATEL(3985) for the Defendant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/09/2026
JUDGMENT
1. This appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 (in short “the Act”) by the appellant/s
challenging the judgment and order dated 17.11.2017 passed
in MACP No. 985 of 2010, whereby the learned Tribunal
granted compensation of Rs. 3,95,500/- with interest at the
rate of 8% per annum from the date of the claim petition till
realisation.
2. Since the facts are not disputed by either of the parties,
this judgment is not burdened by reproducing the facts.
3. The appeal is advanced on two grounds. The first is that
the trial court / tribunal did not properly consider the
evidence on record and exonerated the insurance company on
the footing that the policy was an Act-only policy? Secondly,
in view of judgment of the Hon’ble Apex Court in case of New
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India Assurance Co. Ltd. Vs. Urmila Halder, 2024 JX
(SC) 1154, the amendment introduced by Section 164 to the
Motor Vehicles Act, being a beneficial piece of legislation, can
be given retrospective effect to the case on hand and the
claimant would be entitled to claim compensation of Rs.5 lakh
with interest?
4. Heard learned advocates appearing for the respective
parties.
5. Learned advocate Mr. Jenil Shah for the appellants
referred to the deposition of the insurance company, affidavit-
in-chief of whom has been placed on record at Exh.44 to
submit that the officer in cross-examination, has unequivocally
accepted that the premium for giving risk of two passengers is
taken and the risk thereby, is covered. The claimant was
travelling as pillion rider in the bike and thus, his risk was
covered. However, the learned Tribunal, perhaps, on
misreading of the title of the policy produced at Exh.26 came
to the conclusion that the policy of the vehicle is liability only
policy and consequently, exonerated the insurance company.
5.1 Upon such submissions, learned advocate Mr. Shah
prays to allow the First Appeal by suitably modifying the
impugned judgment and award.
6. Learned advocate Mr. YJ Patel appearing for the owner
of the vehicle and learned advocate Mr. Rathin Raval
appearing for the respondent insurance company pray to pass
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necessary orders.
7. At the outset, the fallacy in the order of the learned
Tribunal is conspicuous and noticeable. The learned Tribunal
went on to read the title of the policy at Exh.26 to believe that
policy giving the risk of the offending vehicle is liability only
policy without referring to the evidence relied upon by the
Bajaj Allianz General Insurance Co. Ltd. at Exh.44, wherein
Mr. Mohit Rana, Junior Executive (Legal) in the office at
Mehsana of Bajaj Allianz General Insurance Co. Ltd., in his
cross-examination, has accepted that the premium has been
accepted for the passenger besides the premium of the owner
and driver. Let refer part of the cross-examination by the
officer of the Bajaj Allianz General Insurance Co. Ltd.
accepting that the risk of the passenger has been covered.
“It is true that we are the insured of the said vehicle
No. G.J.8.AE.1014. It is true that a proposal form has
to be filled before taking insurance. It is true that the
details of the risks that the owner wants to take
insurance for are mentioned in the proposal form. In
this case, a premium of Rs. 100/- has been taken for
the personal accident of the owner and the driver and
apart from that, we have accepted the risk of two
additional passengers and taken a premium. It is not
true that in this case, the responsibility to pay
compensation arises only in the case of death and
total permanent disability.”
8. In view of the aforesaid solemn admission on the part of
the officer of the insurance company, the claimant was not
required to prove any further to recover the risk of the pillion
rider. The title of the policy would not decide the nature of
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the policy; it is the break up of the premium. Thus,
exoneration of the insurance company from liability to pay
compensation is a total erroneous approach on the part of the
learned Tribunal and perhaps, misreading of the evidence.
9. As far as second issue is conerned, it is found that the
same was fully covered by the judgment of the Hon’ble Apex
Court in case of Urmila Halder (supra) , which holds that the
amendment to a beneficial piece of legislation must be given
retrospective effect.
10. Section 163A of the Motor Vehicles Act has been
replaced by Section 164, introducing a fixed compensation of
Rs. 5,00,000/- in death cases, and that the Hon’ble Apex Court
had held that this amendment would apply even where the
accident occurred before the amendment came into force.
Relevant para of the judgment is 6 to 10, which read as
under:-
“6. Reliance was placed on the last line of the
notification, which indicates that the said amendment
would come into force from the date of publication in
the official Gazette, which is 22nd May, 2018. It was
submitted that as the accident had occurred on 11th
December, 2004, the benefit of such amendment
could not be granted to the respondent. In support of
this contention, learned counsel referred to and relied
upon various decisions of this Court in Padma
Srinivasan Vs. Premier Insurance Company
Limited, [(1982) 1 SCC 613]; Shyam Sunder and
Others vs. Ram Kumar and Another, [(2001) 8
SCC 24]; Nasiruddin and Others Vs. Sita Ram
Agarwal, [(2003) 2 SCC 577] and Panchi Devi Vs.
State of Rajasthan and Others, [(2009) 2 SCC
589] .
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7. It was further contended that the present case is
covered by the policy under which the payment is
made and the same crystallized on the date the same
was entered into and subsequent developments would
not alter the rights and liabilities of the parties. Thus,
the contention was that the appellant would not be
liable to pay any further than what it was obliged to
pay under the Act prior to coming of the amendment
on 22nd May, 2018.
8. Learned counsel for the respondent submitted that
the High Court has rightly taken a view that it is
merely a procedural amendment which has to be
given retrospective effect and it is nothing substantive
so as to affect the merits of the issue.
9. Having considered the matter, we do not find any
reason to interfere with the judgment impugned. With
regard to the judgments of this Court relied upon by
learned counsel for the appellant, having gone
through the same we find that they are
distinguishable from the facts of the present case and
thus, the ratio of those cases would not apply in the
present case.
10. The order of the High Court is well discussed and
we agree with the view taken. We may, however, add
that a beneficial legislation would necessarily entail
the benefit to be passed on to the claimant in the
absence of any specific bar to the same. In the
present case, the liability of the appellant-Insurance
Company has not been interfered with. Only the
computational mode and the modality have been
further clarified, which rightly has been noted by the
High Court and accordingly, the claim has been
enhanced to Rs. 5,00,000/- (Rupees Five Lakhs). As
50% of the compensation amount was stayed by this
Court, the same be paid to the respondent in terms of
the impugned judgment within eight weeks.”
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11. Applying the aforesaid dictum, the following order is
passed:
11.1 The appeal filed by the claimants is partly allowed.
11.2 The judgment of the learned Tribunal is modified to
the extent that the claimant/s shall be entitled to the fixed
compensation of Rs. 5,00,000/-, together with interest at 8%
per annum from the date of the claim petition till realization.
11.3 The insurance company is directed to deposit the
decretal amount within 12 weeks from today.
11.4 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with
accrued interest thereon, if any, to the claimant/s, by account
payee cheque / NEFT / RTGS, after proper verification and
after following due procedure.
11.5 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
12. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
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