NEUTRAL CITATION
C/FA/2877/2019 JUDGMENT DATED: 27/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2877 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNITED INDIA INSURANCE COMPANY LTD.
Versus
KIRANKUMAR CHANDULAL PARMAR & 1 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/09/2023
ORAL JUDGMENT
[1] The challenge is given by the insurance company to the judgment and award dated 20.9.2017 passed by the MACT (Aux), Ahmedabad Page 1 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined City, Ahmedabad in MACP no.317/2012. Primarily the grounds raised inter-alia state that the Tribunal has erroneously laid down the liability of payment of money on the insurance company since the certificate issued by RTO of the driving license of the insured three wheeler transport vehicle of owner-cum-driver, supported by the evidence of the RTO proves that the driver of the transport vehicle was holding license to drive only non-transport motorcycle with gear and had no authority to drive transport vehicle on the date of the accident. Further, the compensation under the head of future loss of income is erroneous since has not suffered any loss because of the physical disability of 9%.
[2] The notice was served to the other side. The claimant was also served, but has failed to appear in person nor is he represented by any lawyer on record.
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NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined [3] Mr. Maulik J. Shelat, learned advocate for the insurance company referring to the judgment in the case of National Insurance Company Limited v. Navalsinh Ramsinh Bariya rendered in First Appeal no.3556/2005 dated 2.9.2014 and in the case of Vimlaben Vinodchandra Modi v. Rabari Chinubhai Amrabhai rendered in First Appeal no.2217/2018 dated 28.9.2018, submits that when the claimant has not been degraded because of the physical disability in his service and when there is no loss of income, then no amount should be granted under the said head. Mr. Shelat also referred to the judgment in the case of Raj Kumar v. Ajay Kumar & Anr., reported in (2011) 1 SCC 343 to support his contention that if the claimant continues in his service, then no amount should be granted under the head of loss of future income while has been adequately compensated under the head of pain, shock and suffering in the ratio of the physical Page 3 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined disability sustained by him.
[4] The Hon'ble Apex Court in the case of Raj Kumar v. Ajay Kumar & Anr., reported in (2011) 1 SCC 343 has observed as under:-
"10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether Page 4 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined
(i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."
[5] Mr. Shelat further stated that in case of Oriental Insurance Company Ltd. v. Zaharulnisha & Ors., reported in (2008) 12 SCC 385, the law has been declared that if the person drives totally different class of vehicle which he has not been authorized by Page 5 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined any endorsement for an effective license to drive on the date of the accident, then it would be the case of violation of Section 10(2) of the Motor Vehicles Act and thus, the insurance company would not be liable to pay the compensation.
[6] The case of the claimant as was urged before the Tribunal was that on 19.12.2011 at 11:30 noon, the claimant was proceeding from Gomtipur to Asarva by riding on a motorcycle bearing registration no. GJ-1 ND-282. When he had reached near Shriji weigh bridge near Gandhi Vidyalaya, a rickshaw bearing registration no. GJ-1 CV-6592 came from opposite direction in a rash and negligent manner and in excessive speed and the loading rickshaw collided with the motorcycle and knocked him down. As a result, he sustained injuries.
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NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined During the course of trial, he examined himself at Exh.25 and the insurance company examined RTO officer - Dushyantsinh Natvarsinh Jadeja at Exh.38.
[7] FIR was produced at Exh.30. Panchnama of the place of accident at Exh.31. True copy of the injury certificate was produced by the claimant at Exh.32 and disability certificate at Exh.34. A purshis was produced at Exh.42 to consider the disability for the body as a whole at 9%.
[8] The claimant's salary slip of October, November and December, 2011 were put at Exhs.27 to 29 respectively. The insurance policy of the loading rickshaw bearing registration no. GJ-1 CV-6592 was placed on record at Exh.33, certificate issued by RTO regarding the driving license of opponent no.1 was produced on record at Exh.41 and the photocopy of the R.C. book of the rickshaw at Page 7 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined Exh.42.
[9] The learned Tribunal while considering the negligence aspect in the Panchnama considered that the road was 80 mtr. in width and the place of accident was busy road of Ahmedabad city. The front portion of the motorcycle was found damaged, lying on the road and thus, the learned Tribunal considered from the situation of the place of accident to make it clear that the rickshaw had not given safe passage to the ongoing motorcycle, on which the claimant was riding, and, further the opponent no.1- rickshaw driver has not stepped into the witness box and rebutted the facts deposed by the claimant and thus, the learned Tribunal has considered sole negligence on the part of the opponent no.1 rickshaw driver. [10] The claimant, to prove the disability, has produced the injury certificate and the disability certificate issued by Dr. Aditya Page 8 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined Upadhyay and by way of purshis, both the sides had declared consent to consider 9% disability for the body as a whole. At the time of the accident, the claimant was 47 years old. The evidence on record shows that he was working as packer in Gujarat State Board of School Text Books, Gandhinagar. His monthly total gross salary as per the evidence by way of pay slip was observed to be Rs.16,965/-. The learned Tribunal had considered the permanent nature of the claimant's employment and had also appreciated the admission in the cross- examination at Exh.25 that after the accident, when he resumed his service, he was not given light work nor had he lost his promotion because of the injury and there is no diminution in his earning capacity during his service period because of the accident. Inspite of that, the learned Tribunal referred the case of State of Gujarat v. Somabhai Dhurabhai, reported in 1993 (2) GLR 1043 and Page 9 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined considering his monthly income Rs.16,965/-, applying multiplier of 5 with the physical disability of 9%, granted him Rs.91,611/- as future loss of income. The judgment relied upon by the learned Tribunal was the case of State of Gujarat v. Somabhai Dhurabhai (supra). The said judgment now looses its force, after the law propounded in Raj Kumar (supra), wherein it has been held by the Hon'ble Supreme Court that no compensation under the head of loss of future earning should be awarded if the claimant continues in his service and if the claimant is not reduced in his position in his service. In the present case, the claimant has admitted that he has continued in his service. After the accident, there was no diminution in his income. He has not suffered any loss of income. Thus, this Court considers that in view of the settled proposition of law laid down in the case of Raj Kumar (supra), the physical disability has Page 10 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined not affected the earning capacity and the physical disability has not prevented him or restricted him from discharging his activities and function, but could carry on the same in the same scale to earn the same income and there would not be any loss of future earning. Hence, this Court is of the view that the amount granted towards future loss of income is not supported by the evidence on record where the admitted position is that the claimant had continued in his job without any loss of income where he has further admitted that he has received increase in his salary. Thus, this Court is of the view that the claimant would not be entitled to any amount under the head of future loss of income. Thus, the order passed of granting Rs.91,611/- towards future loss of income stands quashed and set aside.
[11] However, following the proposition as laid down in the case of Raj Kumar (supra), the Page 11 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined claimant can be compensated for the loss of amenities for life. Here the learned Tribunal has granted amount of Rs.10,000/- under the head of pain, shock and suffering as well as loss of amenities of life. This Court considers that since the claimant had suffered fracture, he may have suffered pain and thus, taking the said fact of injury under the head of pain, shock and suffering and including loss of amenities of life, the amount of Rs.20,000/- would be sufficient and an amount of Rs.5,000/- for medical, special diet, attendant and transportation is just and proper. Hence, in the result, the claimant would be entitled to total amount of compensation of Rs.25,000/-.
[12] The learned Tribunal while considering the liability aspect has found opponent no.1 solely liable for the accident. The insurance company has raised the issue that the driver of the loading rickshaw was not holding valid Page 12 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined driving license to drive 3 wheeler goods vehicle which is in breach of the policy condition. Hence, the insurance company was not liable to indemnify. To support the contention, the insurance company had examined Dushyantsinh Natvarsinh Jadeja, RTO officer at Exh.38 and the learned Tribunal considering the oral evidence and perusing the certificate of license issued by RTO authority, Ahmedabad found that opponent no.1 was holding transport vehicle license valid from 14.3.2007 to 19.8.2024. Learned advocate Mr. Shelat has drawn attention of this Court towards Exh.41 which is information of the smart card driving license. Mr. Shelat has drawn attention to submit that the document has been misread by the Tribunal where actually the smart card driving license is for the motorcycle and specifically validity for non-transport vehicle is from the date of issuance on 14.3.2007 till 19.8.2024. Mr. Shelat referring Page 13 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined to the document at Exh.41 submits that the column for transport vehicle is vacant, where there is no such endorsement and further the very document Exh.41 is in relation to motorcycle while here the involved vehicle is loading rickshaw. Mr. Shelat also referred to the deposition of the RTO officer who has clarified the said aspect that the vehicle involved is a rickshaw with registration no. GJ-1 CV-6592 while the document Exh.41 is for the type of vehicle MCE5G which was issued in the name of opponent no.1 - Parshottambhai Girdharilal Khatik.
[13] The learned Tribunal thus has committed an error in analyzing and appreciating the documents on record, where the driving license on record is with respect to the motorcycle and the very document Exh.41 does not bear any endorsement for the transport vehicle while R.C. book shows the ownership of the loading rickshaw in his name, but the document Exh.41 Page 14 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined regarding the smart card driving license does not show the authorization to drive the loading rickshaw as the transport vehicle. Section 10 of the Motor Vehicles Act deals with the form and contents of license to drive. While Section 10(2) provides that driving license shall be expressed as entitling the holder to drive a motor vehicle of one or more of the classes named in sub- section (2) of Section 10 wherein the classes have been categorized from (a) to (j) where transport vehicle is a different class than the motorcycle.
[14] In the case of Zaharulnisha (supra), it has been observed in Paragraph 21 as under:-
"21. In the light of the above settled proposition of law, the appellant insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and Page 15 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined effective licence to drive the vehicle on the day of accident. The scooterist was possessing a driving licence of driving HMV and he was driving a totally different class of vehicle, which act of his is in violation of Section 10(2) of the MV Act."
[15] Here in this case, opponent no.1 was not holding the driving license to drive the transport vehicle which is a loading rickshaw involved in the accident. The RTO officer examined on record had got the details of the license issued in favour of the opponent no.1 from the RTO office and according to his evidence, he was holding license for two wheeler from 14.3.2007 to 19.8.2024 and had clarified that the opponent no.1 was not having any license to drive three wheeler apart from two wheeler and that there had been no application in his office for any transfer of the license in any other office or other States. He has referred to R.C. book which he affirmed, that it was with regard to auto rickshaw, which will be transport vehicle and Page 16 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023 NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined has clarified that a person should have a license to drive three wheeler transport vehicle while Exh.41 does not show the authorization. Exh.41 is smart driving license details which shows that opponent no.1 has no valid driving license to drive three wheeler transport vehicle which was in his ownership as proved by the document at Exh.42-R.C. Book on record. In view of the same, the insurance company cannot be made liable to pay the compensation as there is breach of policy condition. Thus, the order passed by the Tribunal laying the liability on the insurance company along with opponent no.1 requires modification of 'pay and recover' as insurance company hereby stands exonerated. [16] It is submitted by Mr. Shelat that total amount has been deposited in compliance of the order dated 27.2.2020 of this Court. Page 17 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023
NEUTRAL CITATION C/FA/2877/2019 JUDGMENT DATED: 27/09/2023 undefined [17] Hence, in the result, the insurance company to pay an amount of Rs.25,000/- along with the accruing interest therein to the claimant and rest of the amount of Rs.81,611/- be remitted back to the insurance company where the insurance company is authorized to recover the said amount paid to the claimant by way of execution proceedings from the original opponent no.1 - Parshottambhai Girdharilal Khatik.
[18] The impugned judgment and award be modified accordingly. The appeal is disposed of accordingly. Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 18 of 18 Downloaded on : Sat Sep 30 20:37:58 IST 2023