State Of Gujarat vs Manharba Bheemsih Gohil on 19 June, 2026

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    Gujarat High Court

    State Of Gujarat vs Manharba Bheemsih Gohil on 19 June, 2026

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                                C/FA/211/2015                                       JUDGMENT DATED: 19/06/2026
    
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                                        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                                    R/FIRST APPEAL NO. 211 of 2015
    
    
                          FOR APPROVAL AND SIGNATURE:
    
    
                          HONOURABLE MS. JUSTICE NISHA M. THAKORE
    
                          ==========================================================
    
                                        Approved for Reporting                      Yes           No
    
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                                                      STATE OF GUJARAT & ANR.
                                                               Versus
                                                   MANHARBA BHEEMSIH GOHIL & ORS.
                          ==========================================================
                          Appearance:
                          MS. SURBHI BHAT, AGP for the Appellant(s) No. 1,2
                          MR RITURAJ M MEENA(3224) for the Defendant(s) No. 4
                          MR.HIREN M MODI(3732) for the Defendant(s) No. 1
                          RULE SERVED for the Defendant(s) No. 2,3
                          ==========================================================
    
                              CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
    
                                                               Date : 19/06/2026
    
                                                               ORAL JUDGMENT

    Heard Ms. Surbhi Bhati, learned AGP for the appellants-State

    Authorities and Mr. Hiren M. Modi, learned advocate for the

    SPONSORED

    respondent no.1-original claimant. Despite having entered the

    appearance on behalf of the respondent no.4, learned advocate Mr.

    Vasant S. Shah has chosen not to appear and assist the Court. The

    record reveals that notice of admission of appeal is reported to have

    been duly served upon the respondent nos.2 and 3; however, no

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    appearance has been entered on their behalf.

    [2.] With the able assistance of learned advocates on record

    for appellants-State Authorities and respondent no.1, the appeal was

    peremptorily heard finally.

    [ 3.] The present appeal is filed at the instance of the original

    opponent nos.1 and 2 under Section 173 of the Motor Vehicles Act,

    1988 (hereinafter to be referred as “the Act of 1988”), being

    aggrieved and dissatisfied with the judgment and award dated

    29.06.2013 ( hereinafter to be referred as “the judgment and award”)

    passed by learned 5th Additional District Judge & Motor Accident

    Claims Tribunal, Ahmedabad (Rural) in M.A.C.P. No.1663 of 2008.

    [3.1] By the said judgment and award, the Tribunal has partly

    allowed the claim petition preferred by the original claimants under

    Section 163A of the Act of 1988, holding them entitled to recover

    compensation of Rs.4,50,000/- with interest thereon at the rate of

    7.5% per annum from the date of claim petition till its actual

    realization from the original opponent nos.1 and 2, jointly and

    severally, with proportionate costs. The Tribunal has further

    exonerated the opponent no.3- New India Assurance Company Ltd

    (hereinafter to be referred as the “Insurance Company”) from its

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    liability to pay any compensation to the original claimants. Hence, the

    present appeal at the instance of the appellants-State Authorities,

    essentially disputing their liability to pay compensation to the original

    claimants.

    [4.] Before considering the merits of the appeal, it would be

    appropriate to briefly consider the manner in which the accident has

    been reported. Before the Claim Tribunal, the heirs of the deceased

    had pleaded that on the fateful day of the accident i.e. on 24.03.2007,

    the deceased Naginbhai Dayabhai, who was working as Police

    constable, while on his duty was on his way to Dhuvaran Khamabat

    Road on the motorcycle bearing registration no.GJ-23-0073 owned by

    the State Authorities. At around 10:00 to 10:30 hours in the night,

    when he had reached near the bridge, one tempo had approached

    from the opposite side and had dashed with the said motorcycle. The

    driver of the tempo had fled away from the place of the accident. The

    motorcycle went off the road, because of the impact caused by the

    tempo, resulting in the fall of the deceased from the motorcycle.

    Because of the aforesaid impact, the deceased had received fatal

    injuries and when he was brought to Khambhat General Hospital, he

    was declared dead.

    
    
                          [5]               The heirs and legal representatives of the deceased,
    
    
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                                 C/FA/211/2015                                      JUDGMENT DATED: 19/06/2026
    
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    including the mother of the deceased, had preferred the claim

    petition before the Motor Accident Claim Tribunal, Ahmedabad, which

    was registered as M.A.C.P. No. 1663 of 2008, praying for

    compensation of Rs. 4,50,000/- with interest at the rate of 12% and

    proportionate costs from the original opponents, which includes the

    D.G.P. Office, Gandhinagar, and the District Superintendent of Police,

    Anand, as opponent nos. 1 and 2, and the Insurance Company of the

    motorcycle involved in the accident as opponent no. 3. Along with the

    claim petition, the claimants have produced on record various

    documents, including the true copy of the FIR, the panchnama of the

    place of accident, the inquest panchnama of the dead body, the copy

    of the post-mortem report, the identity card of the deceased issued

    by the D.S.P. Office, Anand, reflecting the date of birth as 03.02.1982,

    the true copy of the driving licence of the deceased, the R.C. book of

    the motorcycle involved in the accident, the copy of the insurance

    policy, the pay slip of the deceased of the month of February-2007,

    and the summary report submitted by the Investigating Officer under

    Section 173 of the Code of Criminal Procedure, 1973, vide list at Exh.

    6.

    [6.] Before the Claim Tribunal, the summons issued upon the

    original opponents were duly served.

    
    
    
    
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                                C/FA/211/2015                                           JUDGMENT DATED: 19/06/2026
    
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                          [6.1]            Original opponent nos. 1 and 2 have submitted their
    
    

    written statements at Exh.16 and had disputed the occurrence of the

    accident, the involvement of the vehicle, the quantum of

    compensation as well as their liability to pay any compensation.

    [6.2] The original opponent no. 3- Insurance Company had also

    submitted its written statement at Exh. 19, mainly raising the defense

    by disputing their liability on the ground that the policy of the

    motorcycle alleged to be involved in the accident was a “liability only,”

    i.e an “Act Only” policy. It was also contended that the risk of a driver

    of the insured vehicle is not covered and, since the deceased himself

    was driving the insured vehicle at the time of the accident, the

    applicant was not legally entitled to claim any compensation against

    opponent no. 3- Insurance Company. The other facts pleaded in the

    claim petition, were objected to by the Insurance Company. On the

    issue of negligence, it was contended that the deceased had lost

    control over the motorcycle, because of the impact caused as being hit

    by the tempo, which was otherwise driven at an excessive speed and

    had dashed with the front side of the motorcycle. Therefore, it was

    submitted that the accident had taken place solely due to the

    negligence of the driver of the tempo and the motorcyclist was not

    liable for the accident.

    
    
    
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                          [6.3]                Unfortunately, pending the adjudication of the claim
    
    

    petition, the original claimant namely the mother of the deceased,

    was reported to have expired, and therefore, the heirs and legal

    representatives of the deceased claimant, have been brought on

    record, pursuant to the order passed by the Tribunal below Exh.20.

    [6.4] Considering the overall pleadings on record, the Tribunal

    has framed the issues at Exh.33 and, which are reproduced

    hereunder:

    “1. Whether the petitioner proves that deceased died
    because of rash and negligent driving of the driver of
    the vehicle involved in the accident?

    2. Whether the applicant is/are entitled to
    compensation ? If yes, what amount ?

    3. In case, if the finding of issue No.2 in the affirmative,
    who is liable to pay the compensation ?

    4. What order ?”

    [6.5] Before the Claim Tribunal, one of the claimants namely

    Manharba Bheemsih Rathod, had submitted her examination-in-chief

    affidavit at Exh. 21, who had mainly reiterated the case originally

    pleaded in the claim petition. The examination-in-chief affidavit of

    Manharba Bheemsih Gohil had been subsequently produced on record

    at Exh 34. The respondents-original opponent nos. 1 and 2, had failed

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    to cross-examine her. The respondent- Insurance Company had cross-

    examined her; however, no challenge was made to the case of the

    original claimants with regard to the deceased having succumbed to

    the fatal injuries caused due to the use of the motor vehicle.

    [6.6] Before conclusion of the proceedings, the opponent no. 3-

    Insurance Company had preferred an application under Section 170 of

    the Act of 1988 at Exh.35, which was allowed vide order dated

    13.12.2011. Similarly, the examination-in-chief affidavit of the newly

    added applicant No. 3- Chetnaben Kuwarba Chavda, was also brought

    on record at Exh.37, who was cross-examined by the original opponent

    no. 2-State Authorities, wherein she had reasserted the fact that the

    deceased had succumbed to fatal injuries caused in the motor vehicle

    accident. The opponent no. 3-Insurance Company has produced on

    record the true copy of the insurance policy of the insured motorcycle

    vide list at Exh.45. Apart from the aforesaid document and the

    evidence produced on record, which has later been admitted as

    Exh.47, the Insurance Company has examined one Mr. Chaitanyabhai

    Somchand Bhavsar, the Assistant Manager of the Insurance Company,

    as a witness. In his deposition before the Tribunal, the said witness has

    categorically deposed that the risk of the motorcyclist is not covered

    under the policy and, in such circumstances, the Insurance Company

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    cannot be held liable. In the cross-examination, the said witness has

    admitted the fact that the accident had taken place on 24.03.2007 and

    the period of coverage as indicated in the policy is 01.01.2007 to

    31.12.2007. In his cross-examination, he has admitted that, as per the

    Schedule, the basic premium of Rs. 300/- has been realized towards

    third-party risk and has denied that the minimum premium to be

    realized was Rs. 100/-. In para-8, the said witness has categorically

    denied the fact that the deceased can be treated as a third party. He

    has admitted to the suggestion that the deceased cannot be treated

    as the owner of the insured vehicle; however, he has reiterated that

    the policy in question was confined to basic third-party risk and there

    was no risk covered for the driver of the insured vehicle.

    [6.7] The Tribunal, while examining a claim petition preferred

    under Section 163A of the Act, 1988, has proceeded to decide the

    issue of negligence on appreciation of documentary evidence such as

    the complaint at Exh.56 and the panchnama at Exh.57, and held the

    driver of the tempo solely negligent towards the occurrence of the

    accident, in absence of the driver/owner of the unknown vehicle i.e.

    tempo being joined as a party to the proceedings.Having held the

    driver of the tempo negligent, the Tribunal has further decided the

    issue of entitlement of compensation as well as the quantum of

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    compensation. Having noted that the proceedings being preferred

    under Section 163A of the Act, 1988, the Tribunal has arrived at a

    finding that the deceased was working as a Constable in the Police

    Department and was receiving a salary of Rs. 6,204/-, and therefore,

    considering the income at Rs. 40,000/- per annum under Section 163A

    of the Act of 1988, the Tribunal applied deduction of 1/3rd towards

    the personal expenses of the deceased, and thereafter, applied

    multiplier of 17, considering the age of the deceased to be 25 years,

    thereby holding the claimants entitled to recover compensation of Rs.

    4,50,000/-.

    [6.8] As regards the issue of liability, the Tribunal has

    considered the contents of the policy and has held that the policy was

    an “Act Only” policy. While appreciating the evidence of the Assistant

    Manager at Exh.46, the Tribunal, after considering the ratio laid down

    by the Hon’ble Supreme Court in the case of United India Insurance

    Co. Ltd. vs. M. Laxmi and others reported in 2009 ACJ 104, and in

    the case of New India Assurance Co. Ltd. vs. Sadanand Mukhi and

    others, reported in 2009 ACJ 998, as relied upon by the learned

    advocate for the Insurance Company, has drawn the conclusion that

    the risk of the driver was not covered under the policy in question and,

    has thereby exonerated the Insurance Company from its liability to

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    pay any compensation to the claimants. The Tribunal has considered

    the provisions of Section 163A and has noted that the State

    Authorities have failed to produce any evidence to show that the

    Insurance Company is liable to pay compensation and has thereby held

    the owners i.e. opponent nos. 1 and 2, liable to pay compensation

    under Section 163A of the Act of 1988.

    Hence, the present appeal is preferred by the State Authorities

    disputing their liability to pay any compensation.

    SUBMISSIONS ON BEHALF OF APPELLANT STATE :

    [7.] Learned AGP Ms. Surbhi Bhaiti appearing for the

    appellants- State Authorities has vehemently assailed the impugned

    judgment and award, mainly disputing their liability.

    [7.1] The attention of this Court was invited to the findings and

    reasons assigned by the Tribunal, to contend that the Tribunal

    committed serious error in entertaining the claim petition preferred

    under Section 163A of the Act of 1988, in the facts of the case and the

    evidence on record. Inviting my attention to the issue of negligence,

    learned AGP has submitted that, in absence of the driver and owner of

    the alleged tempo involved in the accident, the Tribunal had arrived at

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    a conclusion holding the driver of the tempo solely negligent towards

    the occurrence of the accident. On such an erroneous foundational

    basis, the Tribunal has proceeded to examine the claim petition under

    Section 163A of the Act of 1988.

    [7.2] She has fairly conceded to the fact that the policy

    produced on record at Exh.47 is an “Act Only” policy. Referring to the

    policy produced on record, she has fairly pointed out that no

    additional premium has been paid covering the risk of the driver of the

    insured vehicle. The only premium, which was realized by the

    respondent no. 3- Insurance Company, is towards the third-party risk.

    However, she has objected to the liability of the State as, according to

    her, the deceased being the driver of the insured vehicle-motorcycle,

    in absence of his negligence, the State as owner of the vehicle could

    not have been held liable to pay compensation.

    [7.3] Learned AGP has invited my attention to the recent order

    of the Hon’ble Supreme Court passed in the case of Wakia Afrin

    Versus M/S National Insurance Company Limited, arising from

    Special Leave Petition (Civil) Nos.15447-48 of 2024 (Neutral

    Citation: 2025 INSC 919). The attention of this Court was invited to

    the various earlier decisions on the issue reconsidered by the Hon’ble

    Supreme Court, while referring the matter for reconsideration to a

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    Larger Bench. She has, therefore, submitted that in the case of a

    motor vehicle accident, if the tortfeasor is the driver, the owner has

    the vicarious liability, which liability is indemnified by the insurer only

    when there is a valid policy. She has further submitted that, in absence

    of the second vehicle involved in the accident and in absence of the

    driver and the owner of that vehicle being joined as parties to the

    proceedings, a claim petition under Section 163A of the Act of 1988,

    would not be maintainable.

    [7.4] Reliance was also placed on the order dated 25.08.2022

    passed by the Hon’ble Supreme Court in the case of Mohana Krishnan

    S vs K. Balasubramaniyam, in Special Leave to Appeal (C) No(s).

    3433/2020, wherein, after considering the earlier decisions, the issue

    as to whether a pillion rider on a motorcycle is not a third party, and

    therefore, the Insurance Company is not liable to indemnify the

    insured on account of the injuries or death of such pillion rider, is

    pending consideration before the Larger Bench. She has, therefore,

    submitted that since the question, as to whether the “third party”

    includes all other persons other than the insured, who is the first party

    and the insurer, who is the second party, is pending consideration

    before the Larger Bench. It was submitted that the hearing of the

    present appeal may be deferred as the insurance policy admittedly

    covers the risk of third party only being an “Act Policy” and in case the

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    reference is answered in near future then the same will have bearing

    on the issue of liability of Insurance Company.

    [7.5] Similarly, reliance was placed on the order dated

    06.02.2026 passed by the Hon’ble Supreme Court in the case of

    Shyamkishor Choudhary vs. Branch Manager in Special Leave

    Petition (Civil) Diary No. 2862 of 2026. While condoning the delay,

    the Court had entertained an appeal to reconsider the issue, as to

    whether a pillion rider can be treated as a third party. Noticing the

    earlier order referring the matter to a Larger Bench in case of

    Mohana Krishnan S (supra), the Hon’ble Supreme Court while issuing

    notice in the main matter, has stayed the direction of the High Court

    to refund the amount to the Insurance Company.

    [7.6] Reliance was also placed on the order dated 11.08.2025

    passed by the Hon’ble Supreme Court in the case of Sudha Hari @

    Sudha vs. The United India Insurance Company Limited and others,

    in Civil Appeal No.13426 of 2024, wherein the issue as to whether the

    owner/driver/representative of the vehicle stands covered for the

    purpose of the applicability of Section 163A of the Act of 1988,

    considering the fact that issue has been referred to a Larger Bench in

    the case of Wakia Afrin (supra), the Court has directed to tag the

    matter along with the main matter. Reliance was also placed on the

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    order dated 14.07.2025 passed by the Hon’ble Supreme Court in the

    case of The Divisional Manager vs. Radha Santosh & Ors. In Special

    Leave to Appeal (C) No.17630 of 2025.

    SUBMISSIONS ON BEHALF OF RESPONDENT CLAIMANT :

    [8.] Learned advocate Mr. Hiren Modi appearing for

    respondent no. 1-the original claimant, has though objected to the

    aforesaid submissions made by the learned AGP on the issue of

    maintainability of claim petition under section 163A, however, has

    made submissions on the aspect of liability.

    [8.1] Learned advocate, at the outset, has invited my attention

    to the findings and reasons assigned by the Tribunal in this regard. It

    was submitted that, admittedly, the deceased was a Constable, and

    therefore, he was an employee of the original opponent nos. 1 and 2.

    It was submitted that, considering the provisions of Section 163A of

    the Act of 1988, the Tribunal was not required to examine the issue of

    negligence, though an issue was framed in this regard. It was

    submitted that in order to consider the entitlement to the

    compensation under Section 163A of the Act of 1988, the only

    requirement was to establish the fact that the deceased had

    succumbed to injuries caused in an accident arising out of the use of

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    the motor vehicle.

    [8.2] He has further submitted that, considering the arguments

    advanced before this Court in the present appeal, there is no dispute

    with regard to the manner in which the accident had taken place. The

    requisite documents, in the nature of the R.C.book and the driving

    licence of the deceased have been brought on record. The

    involvement of the motorcycle in the accident has also been

    established by the claimant. With such evidence on record, no error

    can be found with the approach of the Tribunal in entertaining the

    claim petition under Section 163A of the Act of 1988.

    [8.3] On the issue of liability, learned advocate have mainly

    relied upon Section 147 of the Act of 1988, which deals with the

    requirements of policies and the limits of liability incurred. It is

    submitted that, considering the proviso to Clauses (i) and (ii) of Clause

    (b) of sub-section (1) of Section 147, it can be inferred that there is an

    inbuilt risk covered to indemnify the employer towards the liability in

    respect of the death of his employee during the course of his

    employment. Referring to sub-clauses (a), (b), and (c) of Clause (i) of

    the proviso to sub-section (1) of Section 147, learned advocate has

    submitted that once a valid policy is issued then risk of an employee

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    engaged in driving of the insured vehicle can always be inferred to be

    covered.

    [8.4] Referring to the aforesaid provision, learned advocate has

    submitted that, irrespective of any additional amount of premium

    being paid towards the Workmen’s Compensation Act, 1923

    (hereinafter to be referred as “the Act of 1923”), considering the fact

    that a valid policy was issued in respect of the vehicle used/involved in

    the accident i.e. the motorcycle owned by the State Authorities, the

    risk of the motorcyclist stood covered under the policy.

    [8.5] To substantiate his submission, learned advocate has

    placed reliance upon the judgment of the Hon’ble Supreme Court in

    the case of National Insurance Company Ltd. vs Prembai Patel And

    Others reported in 2005 (6) SCC 172. The attention of this Court was

    invited to the facts. It was a case where the driver of the truck had

    succumbed to injuries, as the truck had overturned. However,

    considering the fact that the death of the driver had taken place out

    of and in the course of the employment, the claimants had preferred a

    claim petition under Section 166 of the Act of 1988. The insurance

    company had objected to its liability to indemnify on the ground that,

    though the vehicle was insured, it was an “Act Liability.” The High

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    Court, upon appreciation of the aforesaid contention, had held that

    the liability of the insurance company is not limited to the extent

    provided under the Act of 1923 and had directed the insurance

    company to pay the awarded amount granted by the Tribunal. The

    insurance company once again approached in appeal before the

    Hon’ble Supreme Court . The question arose, in the facts of the case,

    as to whether the liability of the insurance company was limited to the

    extent arising under the Act of 1923? The Hon’ble Supreme Court,

    while accepting the aforesaid stand of the insurance company,

    observed that the effect of the proviso was that if an insurance policy

    covers the liability under the Act of 1923, in respect of the death of

    any employee as described in sub-clauses (a), or (b), or (c) of proviso (i)

    of Section 147(1)(b), it will be treated as a valid policy and the

    insurance company would be required to comply with the

    requirements of Chapter XI of the Act. The Court had further

    considered Section 149 of the Act, which imposes a duty upon the

    insurance company to satisfy the judgments and awards against the

    person insured in respect of third-party risks. Considering the effect of

    the said provision, the Court held that a policy which covers only the

    liability arising under the Act of 1923, in respect of death or bodily

    injury to any such employee, as described in sub-clauses (a), (b), or (c)

    of proviso (i) to Section 147(1)(b) of the Act, is perfectly valid and is

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    permissible under the Act. However, the Court further observed that,

    considering the fact that the claim petition was preferred under

    Section 166 of the Act, the High Court committed an error in holding

    that the liability of the insurance company was not limited to the

    extent provided under the Act of 1923, and therefore, the Hon’ble

    Supreme Court restricted the liability of the insurance company to

    satisfy the award to the extent arising under the Act of 1923 and

    thereby issued further directions to the owner of the insured vehicle

    to satisfy the remaining portion of the award.

    [8.6] Learned advocate has also placed reliance upon the

    unreported decision of the Co-ordinate Bench of this Court in the case

    of Sashikant Manubhai Bhatti (Deceased) & Ors. Versus Minaben

    Prakashbhai Bhatti & Anr. rendered in R/First Appeal No. 582 of

    2013 on 12.01.2026, to contend that under Section 163A of the Act of

    1988, negligence is not required to be examined. Inviting my attention

    to the facts of the case, it was pointed out that the scooterist had got

    hit by a donkey on the road and slipped. It was submitted that despite

    no other vehicle being involved, the Court, by referring to the decision

    of the Hon’ble Supreme Court in the case of United India Insurance

    Co. Ltd. V. Sunil Kumar & Anr. reported in 2017 (0) AIJEL-SC 61480,

    had quashed and set aside the order passed by the Tribunal, rejecting

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    the claim petition preferred under Section 163A of the Act of 1988, by

    holding that the issue of negligence was not required to be seen by

    the Tribunal, while deciding a claim petition preferred under Section

    163A of the Act of 1988.

    [8.7] Lastly, learned advocate has placed reliance upon the

    unreported judgment of the Co-ordinate Bench of this court in the

    case of United India Insurance Company Limited Versus Bharatbhai

    Manuprasad Upadhyay & Ors rendered in First Appeal No.3904 of

    2025 on 06.01.2026. It is submitted that in the claim petition preferred

    by the original claimants under Section 166 of the Act of 1988, the

    Tribunal had partly allowed the claim petition. Disputing the liability,

    the insurance company had approached in appeal on the ground that

    the claim petition was preferred under Section 167 of the Act of 1988

    and the deceased driver of the offending vehicle himself was the sole

    tortfeasor in causing the accident. It was pointed out that the Tribunal

    ought to have considered that the owner of the offending vehicle had

    not paid any additional premium under the head of legal liability

    towards the paid driver, and therefore, the insurance company was

    wrongly held liable to pay compensation under Section 147 of the Act.

    Alternatively, the argument was made by the insurance company that

    the Tribunal ought to have taken into consideration the structured

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    calculation provided under Section 4 of the Act of 1923, based on

    prevailing minimum wages, while deciding the liability of the insurance

    company in terms of the policy. The Co-ordinate Bench, after

    appreciating the principles laid down by the Hon’ble Supreme Court in

    the case of New India Assurance Co. Ltd vs C.M. Jaya & Ors reported

    in 2002 (2) SCC 278 as well as in the case of Prembai Patel (supra),

    held that the liability under Section 147(1)(b) of the Act, 1988, and

    under Section 4 of the Act, 1923, are different. Considering the fact

    that the claim petition was filed under Section 167 of the Act of 1988

    and appreciating the policy produced on record, it was held that the

    Tribunal ought to have awarded compensation in terms of the

    provisions of the Act of 1923, by considering the minimum wages

    prevailing at the time of the accident to award just compensation. This

    Court, therefore, considering the minimum wages of Rs. 8,000/- per

    month and applying 50% of the said wages by applying appropriate

    factor, had held the insurance company liable to pay compensation in

    terms of the provisions of Section 4 of the Act of 1923. However,

    noticing the fact that the original claim petition was preferred under

    the provisions of the Motor Vehicles Act, as against the total amount

    of compensation adjudicated, after directing Insurance Company to

    indemnify to the extent of liability under the Workmen’s

    Compensation Act , the remaining amount was directed to be realized

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    from the owner.

    [8.8] Reliance was also placed on the decision of the Hon’ble

    Supreme Court in the case of Ramachandra vs. Regional Manager,

    United India Insurance Company Limited reported in (2013) 12 SCC

    84. Referring to the relevant observations made by the Hon’ble

    Supreme Court in paras 22 and 23, learned advocate has submitted

    that, in absence of any expressive clause being included in the

    insurance policy, this Court can always infer about risk covered, in view

    of the statutory liability imposed on the employer by the provisions of

    the Act of 1923, the insurance company cannot escape its liability to

    pay the compensation, in the facts of the case, where the insured

    vehicle was driven by the employee under the instructions of the

    employer. He has therefore submitted that suitable directions can be

    issued holding the respondent- Insurance Company liable to pay the

    amount of compensation to the extent of their liability in terms of the

    provisions of the Act of 1923 and, the remaining amount of

    compensation may be directed to be realized from the owner of the

    insured vehicle i.e. the appellant herein, in view of Section 163A of the

    Act of 1988. Learned advocate has, therefore, urged this Court to

    suitably modify the order to the aforesaid extent, more particularly,

    when there is no challenge to the amount of compensation as

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    quantified by the Tribunal while entertaining the claim petition under

    Section 163A of the Act of 1988.

    REJOINDER OF STATE :

    [9.] In rejoinder, learned AGP has objected to the aforesaid

    submissions made by the learned advocate for respondent no. 1-

    Insurance Company. Reliance was placed on the recent decision of the

    Hon’ble Supreme Court in the case of Mohammed Masood vs The

    New India Assurance Co. Ltd & Anr. (Neutral Citation: 2025 INSC

    1179 ). She has submitted that the claimants have the option to seek

    compensation either to prefer a claim petition under Sections 166 or

    163 of the Act of 1988, or to apply under the Act of 1923. She has

    therefore, submitted that both the aforesaid remedy provided to the

    claimants, are distinct and, in view of Section 167 of the Act of 1988,

    once the remedy under the Act of 1988, is elected and the Tribunal

    has adjudicated the claim, this Court may not import the provisions of

    the Act of 1923, while considering the issue of liability. She has,

    therefore, submitted that the State cannot be held liable to pay

    compensation and the impugned judgment and award passed by the

    Tribunal, may be quashed and set aside.

    [9.1] Disputing the findings and reasons assigned by the

    Tribunal exonerating the Insurance Company from its liability to pay

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    the amount of compensation, learned AGP has submitted that, in a

    similar set of facts, the deceased who was driving the tractor and

    holding a valid driving licence, succumbed to injuries. The tractor was

    turtled and the deceased had died on the spot. An appeal was

    preferred by the original claimants, being the heirs and legal

    representatives of the deceased, being aggrieved by the directions of

    the Tribunal exonerating the insurance company. She has fairly

    pointed out that the policy produced on record indicated the payment

    of an extra premium for legal liability to the driver in terms of IMT-28.

    In the written statement, as well as before the Appellate Court, the

    respondent-insurance company had specifically contended that the

    deceased was not a third party, and therefore, can not claim

    compensation against his own insurance company. It was also

    contended that the claim petition is not maintainable because the

    deceased himself was driving the tractor involved in the accident.

    Inviting my attention to the findings and reasons assigned by this

    Court, learned AGP has submitted that, while entertaining the appeal

    of the original claimants, the Court appreciated the insurance policy

    and the fact of the additional premium being paid under Clause IMT-

    28 towards the legal liability of the driver. Considering the judgment

    of the Larger Bench of this Court in the case of Valiben Laxmanbhai

    Thakore (KOLI) Wd/O Late Laxmanbhai Ramsingbhai Thakore

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    (KOLI) & Ors. vs. Kandla Dock Labour Board & Ors. reported in 2021

    (4) GLH 77, as well as the judgments of the Hon’ble Supreme Court in

    the case of Chandrakanta Tiwari vs. New India Insurance Company

    Limited, reported in (2020) 7 SCC 386, and Ramkhiladi vs. United

    India Insurance Company Limited, reported in (2020) 2 SCC 550, the

    Court has held the insurance company liable to pay compensation to

    the claimants under Section 163A of the Act of 1988, by considering

    Section 147 of the Act of 1988. Learned AGP has, therefore, prayed

    that, alternatively, the Court may allow the appeal, by holding the

    Insurance Company, jointly and severally, liable to pay the amount of

    compensation to the claimants.

    SUBMISSIONS ON BEHALF OF RESPONDENT INSURANCE

    COMPANY :

    [10.] Notably, learned advocate for the respondent Insurance

    company on record had chosen not to appear and conduct the matter

    and while the matter was at verge of dictation of order, the request

    was made on behalf of Insurance company to grant adjournment to

    engage a different lawyer. Learned advocate Mr. Meena was

    permitted to enter the appearance on behalf of respondent Insurance

    Company. It was argued that the Tribunal has rightly exonerated the

    respondent insurance company from liability to pay compensation.

    
    
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    Learned advocate had relied upon findings and reasons assigned by

    the tribunal in this regard.

    [10.1] The reliance was placed on a decision of the Hon’ble

    Supreme Court in the case of Oriental Insurance Co. Ltd vs. Meena

    Variyal and others, reported in (2007) 5 SCC 428 and has submitted

    that the liability of insurance companies in view of section 147 of the

    Motor Vehicles Act is not intended to cover risk of persons other than

    third parties. It was submitted that the liability of the insurance

    company covered under statutory insurance does not cover risk of

    every employee except in cases where the liability arises under the

    Workmen’s Compensation Act, 1923. The attention of his Court was

    invited to Section 147 1)(b). It was submitted that the Court held that

    section 149(1) of the Act cannot be used to enlarge the liability of the

    Insurance Company if it does not exist.

    [10.2] The reliance was placed on a decision of Hon’ble Supreme

    Court in the case of Ramkhiladi (supra), to contend that the claim

    petition itself was tenable in eyes of law in absence of the alleged tort

    feasor viz. The tempo driver and the owner being joined in the claim

    petition. The question which arose for consideration as recorded in

    para 5 was read over and further referring to observations recorded n

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    para 5.5, it was submitted that the deceased having entered into the

    shoes of the owner of the insured vehicle and in absence of any

    contract to indemnify the owner of the insured vehicle, the insurance

    company can n ot be held liable to pay compensation.

    [10.3] The attention of this Court was invited to the recent

    judgment of the Hon’ble Supreme Court in the case of Daivshala &

    ORS. vs. Oriental Insurance Company Ltd. and ors., Neutral Citation :

    225 INSC 904, to contend that the claimant has to establish that the

    accident had occurred during the course of employment.

    [10.4] Lastly, the judgment of the Hon ‘ble Supreme Court in the

    case of Mohamed Masood vs. The New India Assurance Co. Ltd :

    Neutral Citation : 2025 INSC 1179, has been relied upon. It was

    submitted that this Court cannot apply parameters of Workmen ‘s

    Compensation Act, 1923 regarding fixing of income when the

    compensation was assessed under Motor Vehicles Act.

    [10.5] Learned advocate, referring to aforesaid principles has

    further submitted that admittedly, the policy produced on record at

    EXH. 478 is an ‘Act Policy’ and therefore in absence of any additional

    premium being paid covering risk of the owner of the insured vehicle

    or its driver, no liability can be imposed on respondent insurance

    company to pay compensation. The said Policy is confined to only third

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    party risk. According to him, the judgment of Prembai (supra) shall not

    be applicable in the facts of the case. He has therefore urged this

    Court to dismiss the present appeal.

    ANALYSIS :

    [11.] I have heard the learned AGP for the appellants-State

    Authorities and learned advocate for the respondent no.1-original

    claimant and insurance company. Considering the submissions made

    and the grounds raised in the appeal, the question which arises for

    consideration in the present appeal is, as to whether the Tribunal

    committed any error in entertaining the claim petition under section

    163A of the Motor Vehicles Act, 1988, against the owner and

    insurance company of the insured vehicle, when the accident has

    taken place while the insured vehicle was driven by the deceased.?

    [11.1] I have carefully considered the arguments submitted by

    the learned advocates appearing in light of the findings and reasons

    assigned by the Tribunal. I have also carefully re-appreciated the

    evidence on record, in light of the provisions of Sections 147 and 163A

    of the Act of 1988. At the outset, it would be appropriate to note the

    undisputed facts, which can be gathered from the record. Considering

    the arguments made by the appellants-State Authorities and in

    absence of any challenge being made with regard to the manner in

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    which the accident has occurred and the involvement of use of

    motorcycle owned by the State Authority, there is no challenge to the

    fact that the deceased has succumbed to the injuries caused in the

    motor vehicle accident, during the course of his employment. It is an

    admitted fact that the deceased was a Constable working under the

    appellants-State Authorities i.e. at the D.S.P. Office, Sanand. Thus,

    considering the deposition of the claimants and the documentary

    evidence, more particularly, the salary slip produced on record, the

    relationship of the employee/employer, has been established on

    record.

    [11.2] As rightly submitted by learned advocates appearing for

    the respective parties, while deciding the claim petition under Section

    163A of the Act of 1988, the issue of the negligence of the driver of

    the vehicle involved in the accident, is not required to be looked into.

    Despite the aforesaid settled legal position, in my view, the Tribunal

    committed grave error in examining the issue of negligence. The

    Tribunal, in absence of the necessary party namely the driver/owner of

    the alleged tempo involved in the accident, has proceeded to hold the

    driver of the tempo negligent towards the occurrence of accident. Be

    that as it may, the fact remains that it is not the case of either of the

    opponents that it was the deceased who had negligently contributed

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    to the accident. Considering the scheme of “no fault liability”, in view

    of Section 163A of the Act of 1988, the sole requirement which is

    required to be established is that the deceased had succumbed to the

    injuries caused in the accident by use of a motor vehicle. Bearing in

    mind, the aforesaid provision of the Act, the Tribunal has rightly

    entertained the claim petition preferred by the heirs and legal

    representatives of the deceased under Section 163A of the Act of

    1988.

    [11.3] As regards, reliance placed by learned advocates for the

    Appellant State and for Insurance Company on the decision of

    Ramkhiladi (supra) is concerned, it is required to be noted that the

    Supreme Court has in para 5.3 has noted the facts that there is no

    evidence on record to suggest that the deceased was in employment

    as driver of the owner of the insured vehicle and has found him a

    permissible user. It is in this background of facts, the Court has

    applied the principle laid down in the case of Ninagamma (supra) to

    conclude that the deceased had entered into the shoes of the owner

    and therefore section 163A would not apply where the owner himself

    is involved in an accident. While considering the ratio laid down in the

    case of Dhanraj (supra), the Court was guided by the provisions of

    section 147 of the ACt which clearly suggest that there is no statutory

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    obligation to get risk cover of the owner of the vehicle.

    [11.4] The submission made by learned AGP, as regards the

    reference in the case Wakia Afrin (supra), pending consideration, it

    would be appropriate to note that in the aforesaid case, the facts of

    the case suggest that the parents of the claimant had expired in an

    unfortunate accident when their vehicle had dashed against a road

    side building, as the tyre had burst. The claim petition was preferred

    under Section 163A of the Act of 1988. The owner of the vehicle was

    father of the claimant, who was shown as the deceased respondent in

    the array of the parties and the Insurance Company of the vehicle, was

    joined as second respondent. Noticing the aforesaid facts, the High

    Court was of the view that a dead person cannot be made the

    respondent, and therefore, held the claim petition not maintainable.

    In the appeal before the Supreme Court, the Court noted that the

    validity of the insurance policy was not in question and the fact that

    the vehicle was driven by a person, who had a valid licence. The

    question arose before the Supreme Court that, whether the liability of

    the insurer can be confined to that provided in the policy or it can be

    determined under Section 163A of the Act of 1988. In the process, the

    Court has considered the provisions itself. The attention of the Court

    was invited to the various earlier decisions including the judgment of

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    the Supreme Court in the case of The Oriental Insurance Company

    Limited vs Meena Variyal & Ors, reported in 2007 (5) SCC 428,

    arising out of the proceedings filed under Section 166 of the Act of

    1988. Thus, considering the orders as relied upon by learned Assistant

    Government Pleader referring matter to larger bench, in my the said

    orders does not touch issue of liability with facts like in present case

    about deceased driver of the insured vehicle being employed by the

    owner of the vehicle vis-a-vis liability of insurance company being

    examined.

    [12.] Having held so, the second question which arises for

    consideration is as to whether the Tribunal committed any error in

    exonerating respondent Insurance Company from making any

    payment of compensation by relying upon the Judgment of the

    Hon’ble Supreme Court in the case of M. Laxmi (supra) and Sadanand

    Mukhi (supra), in the facts of the case.? Whether the heirs and legal

    representatives of deceased driver are entitled to any compensation

    from the owner and the insurance company of the insured vehicle in a

    claim petition filed under Section 163A of the Act of 1988? The

    subliminal question, which arises for consideration of this Court is, as

    to whether the appellant State as owner of the insured vehicle can be

    held liable to pay compensation to the heirs and legal representatives

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    of deceased driver of the insured vehicle in claim petition filed under

    Section 163A of the Act of 1988. ?

    [13.] It is required to be noted that the view expressed in M.

    Laxmi ( supra) deals with a case of pillion rider and ‘Act only Policy’. It

    is this background of facts of the case, the Hon’ble Supreme Court

    ruled that the meaning of the words “any person” must also be

    attributed having regard to the context in which they have been used

    i.e. “a third party”. Keeping in view the provi- sions of the 1988 Act, it

    was held that as the provisions thereof do not enjoin any statutory

    liability on the owner of a vehicle to get his vehicle insured for any

    passenger travelling in a goods vehicle, the insurers would not be

    liable therefor. Thus, the said principle would not be applicable to

    exonerate insurance company from its liability merely because it is an

    ‘Act only Policy’ as it does not touch to proviso to clause (b) of

    subsection (1) of section 147 of the Act which deals with liability of

    the owner of insured vehicle cum employer to secure the risk of

    employee.

    [13.1] In the case of Sadanand Mukhi (supra), the Hon’ble

    Supreme Court was called upon to examine the issue of liability in the

    facts of the case where the deceased was father and the owner of the

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    insured vehicle was a son, and thus the deceased was not a third party.

    Considering the provisions of section 165 of the MV. The Court held

    that in cases involving the owner of the vehicle or others, the risk of

    whom, if proposed to be covered, an additional premium was required

    to be paid for covering their life and property. Thus, as noted earlier in

    the said case, the Court has ruled so in light of the facts of the case

    and had no occasion to deal with circumstances involving employees.

    [13.2] The judgments relied upon by learned advocate for the

    respondent insurance company shall also be not applicable in the facts

    of the case for the reasons recorded in the preceding paras.

    In view thereof, the Tribunal committed grave error in applying

    the aforesaid precedents in the facts of the case while deciding the

    issue of liability of the insurance company.

    [14.] This brings me back to the subliminal questions which

    arise for consideration. In order to examine the aforesaid issue, it

    would be appropriate to find out as to whether the deceased, who

    was indubitably a Police Constable, can be treated as an employee of

    the State in terms of the provisions of the Employees’ Compensation

    Act, 1923. It would be appropriate to consider the definition of the

    term ’employee’ as provided under Section 2(1)(n)(dd) of the

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    Employees’ Compensation Act, 1923. Thus, the term ’employee’ as

    defined under the aforesaid provision reads as under:

    “(c) a person recruited as driver, helper, mechanic,

    cleaner or in any other capacity in connection with a

    motor vehicle.”

    [15.] Normally the regular police service would be governed by

    the special service Rules, however, considering the peculiar facts of

    the case, as a part of his duty, when the State has entrusted the motor

    vehicle, the question arises as to whether the Police Constable can be

    said to be an employee within the meaning of Section 2(1)(dd) of the

    State under the Employees’ Compensation Act, 1923? It would be

    appropriate to look into the definition of the term ’employer’ as

    defined under Section 2(e) of the Employees’ Compensation Act,

    1923. The term ’employer’ as defined under the aforesaid provision

    includes any body of persons, whether incorporated or not, and any

    managing agent of an employer and the legal representatives of the

    deceased employee, and, when the services of an employee are

    temporarily lent or let out on hire to another person by the person

    with whom the employee has entered into a contract of service or

    apprenticeship, means such other person while the employee is

    working for him.

    
    
    
    
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                          [16.]            Considering the said provisions, the categories of the
    
    

    employees as provided under Schedule II also needs to be looked into.

    Considering the definition of the term ’employee’, as noted earlier and

    the scope of Section 12 of the Employees’ Compensation Act, 1923, it

    is evident that the core intention of the legislation to incorporate

    the aforesaid provision in the statute was to give protection to the

    employee. It would be appropriate to consider the judgment of the

    Division Bench of this Court in the case of Bhutabhai Angadbhai And

    Anr. vs Gujarat Electricity Board And Ors. reported in (1987)1 GLR

    617. The Court has observed as under:

    “9. The object of enacting Section 12 of the Act is to give
    protection to the workmen and secure compensation from the
    persons who can pay and in case of an accident such workmen
    will not be dependent, sometime upon a petty contractor who
    will not be able to pay compensation on account of his
    financial inability. In our opinion, the main object of enacting
    Section 12 of the Act is to secure compensation to the
    employees who have been engaged through the Contractor by
    the principal employer for its ordinary part of the business,
    which, in the ordinary course, the principal employer is
    supposed to carry out by its own servants.

    10. While imposing this liability on the principal employer, sub-
    Section (2) of Section 12 of the Act has provided that the
    principal employer will be entitled to be indemnified by the
    contractor in case the principal employer is required to pay
    compensation to the employees of the contractor.”

    The Employees’ Compensation Act,1923, thus covers full-time,

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    temporary or even cases of casual workers. Keeping in mind the

    aforesaid provisions, in my view, the Police Constable was casually

    engaged by the Employer who was also owner of the insured vehicle

    to drive the motorcycle while he was on his special duty as officer.

    [17.] Considering the aforesaid provision and the fact that the

    deceased had met with the accident and had succumbed to the same

    while he was on his duty, and considering the scheme of benevolent

    legislation which intends to provide immediate relief to the victims

    under the Employees’ Compensation Act, 1923, the Police Constable

    can be treated as an employee for the purpose of enforcement of

    provisions of the Act of 1988. If one looks at section 147 of the Motor

    Vehicles Act, 1988, the said section deals with the liability of insurance

    companies regarding accidents involving motor vehicles. It specifies

    the conditions under which an insurance policy must compensate for

    death or bodily injury sustained by an employee during the course of

    their employment. The First Proviso to Section 147(1)(b), outlines the

    exceptions where the insurance policy does not cover certain

    liabilities, such as when an employee is not performing his designated

    role ie. driving at the time of the accident but is engaged in other

    tasks. However, once he is engaged by the employer to drive the

    vehicle, the crucial question which is required to examine is whether

    the employee was acting within the duties and responsibilities

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    assigned by the employer at the time of the incident. What is required

    to be established for liability purposes is a direct link between the

    employment and the incident.

    [18.] If one looks at the categories/class of persons, the risk of

    whom is mandatorily covered as provided under Section 147, which

    deals with “Requirements of policies and limits of liability,” sub-clause

    (b) of Section 147(1) read with the proviso lays down a statutory

    scheme of compulsory coverage of liability incurred by the employer

    vis-a-vis his employees when they meet with the accident or sustain

    injuries by the use of motor vehicles during their employment, and on

    account of motor accidents arising out of, and in the course of their

    employment. As laid down by the Hon’ble Supreme Court in the case

    of Prembai Patel (supra), the aforesaid statutory coverage for such

    liability is limited to the extent of liability of the insured employer

    arising under the Workmen’s Compensation Act in respect of death or

    bodily injury to such employees. Thus, in motor accidents resulting in

    fatal injuries to the employees, whatever liability is incurred by the

    insured in connection with proceedings arising out of the Workmen’s

    Compensation Act shall be governed by the statutory liability of the

    respondent- Insurance Company. It is required to be noted that sub-

    section (2) of Section 147 of the Motor Vehicles Act, 1988, lays down

    the limits of liability. Sub-section (5) of Section 147 of the Act of 1988

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    is a non-obstante clause, which makes the insurers liable to indemnify

    the person or class of persons specified in the policy in respect of the

    liability covered by the policy. Thus, even in case it was an ‘Act Liability

    Policy’, the insurance company shall be liable to pay compensation to

    the heirs of the deceased employee to the extent as limited under the

    Workmen’s Act.

    [19.] In view thereof, considering the judgment of the Hon’ble

    Supreme Court in the case of Prembai Patel (supra), the Tribunal

    committed grave error in exonerating the Insurance Company from

    its liability to pay compensation to the original claimants, ignoring the

    status of the deceased as an employee of the respondent State-

    employer.

    [20.] In view of the aforesaid legal position, if the facts of the

    case are appreciated, it is true that the deceased was engaged for a

    momentous work in connection with the use of a motor vehicle and

    such engagement to perform the task was under the instruction of the

    employer–the State; the deceased having succumbed to fatal injuries

    during the course of the aforesaid employment, the requisite criteria

    so as to attract the provisions of the Workmen’s Compensation Act

    stands fulfilled. On careful consideration of the principles laid down

    by the Hon’ble Supreme Court in the case of Prembai Patel (supra), it

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    is evident from the facts of the case that the claim petition was filed

    under Section 167 of the Act, 1988; and while appreciating the terms

    and conditions of the policy produced on record, the Hon’ble Supreme

    Court was of the view that the Tribunal ought to have awarded

    compensation in terms of the provisions of the Act of 1923 by

    considering the minimum wages prevailing at the time of the accident

    to award just compensation. Thus, applying the provisions of Section 4

    of the Act of 1923, an appropriate amount of compensation was

    determined. Considering the fact that the original claim petition was

    filed under the provisions of the Motor Vehicles Act, after

    determining the total amount of compensation, the Hon’ble Supreme

    Court directed the Insurance Company to indemnify the claimants to

    the extent of their statutory liability in terms of the provisions of the

    Employees’ Compensation Act, 1923, whereas the remaining amount

    was directed to be realized from the employer i.e. the owner of the

    insured vehicle/insurer.

    [21.] Considering the aforesaid principles in the facts of the

    case, in absence of any challenge being made to the quantum of

    compensation determined as Rs. 4,50,000/- with interest at the rate of

    7.5% per annum from the date of filing of the claim petition, till its

    actual realization, the respondent no.3- Insurance Company shall be

    liable to pay the compensation determined in terms of the provisions

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    of the Employees’ Compensation Act, 1923.

    CONCLUSION :

    [22.] In view of the above discussions, the First Appeal is partly

    allowed. The impugned judgment and award dated 29.06.2013 passed

    by learned 5th Additional District Judge & Motor Accident Claims

    Tribunal, Ahmedabad (Rural) in M.A.C.P. No.1663 of 2008, is hereby

    modified by holding the original claimant entitled to recover

    compensation of Rs. 4,50,000/- with interest at the rate of 7.5% per

    annum from the date of filing of the claim petition till its actual

    realization.

    [23.] As regards the liability to pay such compensation is

    concerned, opponent no.3- Insurance Company is liable to pay

    compensation of Rs. 3,57,901/- ( Rs 3,300 x 50% = Rs. 1650 x 216.91 ) ,

    with proportionate costs and interest as directed by this Court.

    Whereas, the original opponent nos.1 and 2 are held jointly and

    severally liable to pay remaining amount of compensation to the

    extent of Rs. 92,099/- ( Rs. 4,50,000 – Rs. 3,57,901).

    [24.] As the entire award amount has been deposited by the

    appellant-State Authorities pending the appeal, the Tribunal is

    directed to release and disburse the entire award amount in favour of

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    the original claimants, subject to verification and strictly adhering to

    the guidelines of the Hon’ble Supreme Court in this regard. At the

    same time, the appellant-State Authorities shall be at liberty to realize

    the amount to the extent of the liability of the Insurance Company,

    which otherwise the Insurance Company was liable to satisfy in terms

    of the policy. Thus, the appellant-State shall be at liberty to realize the

    amount towards the liability of the Insurance Company being paid on

    their behalf to the original claimant, by seeking appropriate legal

    remedy available in law.

    [25.] With these observations, the First Appeal stands disposed

    of, in the aforesaid terms. Record and proceedings, if any, are

    directed to be sent back to the concerned Tribunal forthwith along

    with the Writ of this judgment.

    (NISHA M. THAKORE,J)
    SUYASH SRIVASTAVA

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