Chandreshbhai Ebhabhai Maru vs Pradipbhai Govindbhai Parmar

                                                                                       NEUTRAL CITATION




     C/FA/2296/2022                                     ORDER DATED: 08/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2296 of 2022

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                      CHANDRESHBHAI EBHABHAI MARU
                                  Versus
                      PRADIPBHAI GOVINDBHAI PARMAR
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 2
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 08/08/2023

                               ORAL ORDER

1. Challenge in this Appeal is to the judgment and award dated 21.06.2019 passed in M.A.C. Petition No.1040 of 2013 passed by the learned M.A.C. Tribunal (Auxiliary) at Rajkot whereby the claim petition came to be dismissed.

2. The grounds raised challenging the judgment and award inter alia states that learned Tribunal failed to consider the policy whereby additional premium to cover the risk of the paid driver was received by the insurance company and the Tribunal ought to have considered that being engaged as driver by Respondent Page 1 of 9 Downloaded on : Sun Sep 17 00:43:59 IST 2023 NEUTRAL CITATION C/FA/2296/2022 ORDER DATED: 08/08/2023 undefined No.1, the risk of the appellant is statutorily covered under the purview of Section 147 of the Motor Vehicles Act, 1988.

3. Learned advocate Mr.Bhalodi referring to the judgment rendered in case of Valiben Laxmanbhai Thakore vs. Kandla Dock Labour Board reported in 2021 (1) GLR 440 submitted that Insurance company cannot deny the liability to pay the compensation after accepting the additional premium which indemnifies owners for paid driver and / or conductor and risk of driver / conductor gets covered therein and thus learned advocate Mr.Bhalodi submitted that upon that ground injury caused to the driver or conductor the insurance company would be liable to satisfy such claim irrespective of self-negligence.

4. Learned advocate Mr.Rushabh Mehta submitted that the facts of the case have been appreciated by the Tribunal. Janva Jog entry, panchnama of place of accident and RC Book of the vehicle were examined and the learned Tribunal was of the view that the driver of the vehicle was to be blamed for accident.

NEUTRAL CITATION C/FA/2296/2022 ORDER DATED: 08/08/2023 undefined Learned advocate Mr.Mehta submitted that perusal of panchnama Exh.39 suggests that vehicle was lying on the right side below the road in a turtle condition after crossing about 58 wide road and had traveled wrong side before turning turtled which itself suggests that driver had taken the vehicle on right-hand side all of a sudden and a plea had been taken that it was caused due to wild animal i.e. Neel Gaay crossing the road. Learned advocate Mr.Mehta submitted that the learned Tribunal had not believed the said fact on the ground that had the wild animal entered the road from left side and dashed with the vehicle, it would have dashed on the left side of the vehicle and if the driver had not applied brake then the animal must have fallen down on the left side with the injury. He submitted that the panchnama does not support the said fact and thus learned advocate Mr.Mehta submitted that the learned Tribunal has rightly concluded that it was rash and negligence driving of the driver which led to the accident.

5.1 The accident has taken place on 09.01.2023 at Page 3 of 9 Downloaded on : Sun Sep 17 00:43:59 IST 2023 NEUTRAL CITATION C/FA/2296/2022 ORDER DATED: 08/08/2023 undefined about 10:30 p.m. The applicant was on his duty as a driver of truck bearing registration number GJ-3-AX- 2346 and was passing the road near village Timbi within local limits of Umrala Police Station and as per his case suddenly Neel Gaay dashed his truck and, therefore, truck turtled on the left side of the road and he sustained injuries.

5.2 As per the claimant he was 32 years of the age at the time of accident he was paid driver on the truck of opponent no.1.

5.3 In case of Valiben Laxmanbhai Thakore vs. Kandla Dock Labour Board reported in 2021 (1) GLR 440, the Division Bench of this Court while dealing with the issues urged, had framed the following question to be examined and answered by the Bench that :-

"Whether the Division Bench of this Court in the case of Saberabibi Hisammiya Umarmiya (supra) laid down correct law by holding that in view of insured paying additional premium for the liability of the paid driver, the Insurance Company is liable to pay compensation under the Motor Vehicles Act Page 4 of 9 Downloaded on : Sun Sep 17 00:43:59 IST 2023 NEUTRAL CITATION C/FA/2296/2022 ORDER DATED: 08/08/2023 undefined computed upon the death or injury caused to the driver out of an accident which arises solely on account of driver's own negligence?"

Thereafter, in Paragraph 13 of the decision in the case of Valiben (supra), the Division Bench held as under :-

"13. Thus, when the owner of a vehicle pay additional premium and same is accepted by the Insurance Company, liability of the Insurance Company gets extended under the Motor Vehicles Act. Section 147 of the Act clearly prescribes for statutory liability to cover risk of paid Driver and Conductor under the Insurance Policy, which is a matter of contract. On payment of such additional premium by the owner, the liability of the owner shifts upon the Insurance Company. Thus, the risk of paid Driver and Conductor would be covered under the Insurance Policy. Only when the additional premium is not paid, liability would be as per the Employees Compensation Act, 1923 and in such cases, compensation would be computed as prescribed under the Act which is limited to the extent provided under provisions of the Act. However, when owner pays additional premium to cover the legal liability of his paid driver and conductor to the Insurance Page 5 of 9 Downloaded on : Sun Sep 17 00:43:59 IST 2023 NEUTRAL CITATION C/FA/2296/2022 ORDER DATED: 08/08/2023 undefined Company, as such, the Insurance Company is enlarging the scope for unlimited liability for payment of compensation, when additional premium is accepted. The liability of the Insurance Company gets extended and it has no right to raise issue of self negligence or otherwise of the such class of the driver of the Insured vehicle. By accepting additional premium as per the IMT 28, the Insurance Company expressed its willingness to extend its liability under the Clause of Legal Liability to the Paid driver and conductor as envisaged under Section 147 of the Act. Thus, in our opinion, Insurance Company has no legal right to avoid its legal liability under the indemnity clause arising from the contract of insurance towards the insured - owner of such classes of vehicles."

5.4 In view of prepositions laid down in case of Valiben Laxmanbhai Thakore vs. Kandla Dock Labour Board (supra) and perusal of insurance policy produced at Exh.45 of the truck bearing registration No.GJ-3-AX- 2346 shows that Rs.100/- was collected under the head of legal liability to cover paid driver / cleaner . Thus, the Insurance Company would become liable to pay compensation for the risk covered in the present case of the heavy motor vehicle driver.

NEUTRAL CITATION C/FA/2296/2022 ORDER DATED: 08/08/2023 undefined 5.5 The learned Tribunal while considering the oral evidence on record has observed the admission of the claimant that he was going to Amreli by driving Chhota Hathi bearing registration number GJ-3-AX- 2346. The opponent no.1 i.e. the owner of the Vehicle filed his reply at Exh.35 who had admitted that he was paying Rs.5,000/- per month towards salary to the driver, however, no documentary evidence is produced on record to substantiate the same but considering the admitted position that the applicant was driver of the vehicle on the date of accident, Rs.5,000/- can be considered as monthly income of the driver.

5.6 The disability certificate produced on record at Exh.42 shows that the injury caused to the body as a whole was 23% and there is no reason to disbelieve the same since the claimant sustained injury while driving the truck which had turned turtled on the road.

5.7 Further taking into consideration the age, 40% prospective rise in income is required to be considered and as such monthly income would come to Rs.5,000 Page 7 of 9 Downloaded on : Sun Sep 17 00:43:59 IST 2023 NEUTRAL CITATION C/FA/2296/2022 ORDER DATED: 08/08/2023 undefined + 40% of monthly income = Rs.7,000/-, 23% disability of Rs.7,000/- would come to Rs.1610/-.

5.8 Considering the functional loss of Rs.1610/- annually and applying 15 multiplier, the future loss would come to Rs.2,89,800/- [Rs.1610/- X 12 X 15].

5.9 Considering the extent of disability, this Court considers appropriate to grant Rs.30,000/- under head of 'Pain, Shock and Suffering'. Considering the disability and fact that the driver would not have been in a position to continue with his work with injury he was suffering from, it would be just and proper to grant Rs.20,000/- under head of 'Special Diets, Attendant Charges and Transportation'.

5.10 Since the applicant is driver by profession, he would not be in a position to carry on with profession of driver, and, therefore, this Court is of the view that 6 months loss of income is required to be assessed and thus Rs.30,000/- shall be granted under head of 'actual loss' [Rs.5,000 X 6 months = Rs.30,000/-].

NEUTRAL CITATION C/FA/2296/2022 ORDER DATED: 08/08/2023 undefined 5.11 The compensation amount thus be computed as under:

Rs.2,89,800/- Loss of amenities Rs. 30,000/- Pain, shock and suffering Rs. 20,000/- Special diet, transportation and attendant charges Rs. 30,000/- Actual Loss Rs.3,69,800/- Total compensation

6. The Insurance Company is thus directed to deposit the said amount with 7.5% interest from the date of application within a period of eight weeks from the date of receipt of writ of this Court. . Since the claim petition was for amount of Rs.3/- Lakhs and compensation of Rs.3,69,800/- is granted, let the Court Fees of difference amount be recovered as per Rules.

7. Registry is directed to send the record and proceedings back to the Tribunal, if received.

(GITA GOPI,J) MISHRA AMIT V.