Gujarat High Court
Heirs Of Anilbhai Dayalji Lakhani, ... vs Hitendra Doulatsingh Parmar on 24 April, 2025
NEUTRAL CITATION
C/FA/2334/2011 JUDGMENT DATED: 24/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2334 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2011
In R/FIRST APPEAL NO. 2334 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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HEIRS OF ANILBHAI DAYALJI LAKHANI, DAYALJI HARIDAS LAKHANI &
ORS.
Versus
HITENDRA DOULATSINGH PARMAR & ORS.
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Appearance:
MR MM TIRMIZI(1117) for the Appellant(s) No. 1,2,3
ADVOCATE NOTICE NOT RECD BACK for the Defendant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 24/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Deepak Vigora for learned advocate Mr. M. M. Tirmizi for the appellants and learned advocate Mr. H. G. Mazmudar for respondent No.3. Though served, none appeared for and on behalf of the respondent No.2. Perused the record. Page 1 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 00:32:07 IST 2025
NEUTRAL CITATION C/FA/2334/2011 JUDGMENT DATED: 24/04/2025 undefined
2. The challenge in the present appeal is by the appellants -
original claimants challenging the judgment and award dated 9.5.2011 passed by learned Motor Accident Claims Tribunal (Aux.), Porbandar in M.A.C.P. No.122 of 2009.
3. The facts in brief of the case are as under:
* On 6.9.2009, at about 13.41 pm, deceased Anil Dayalji Lakhani was travelling in Rickshaw No.GJ-23- T-2243 on the service road, and whey he reached near the board of village Dharampur, Udhyognagar area, Porbandar, because of excessive speed, driver of Rickshaw lost control over the steering and the Rickshaw turned turtled. Resultantly, the deceased sustained serious injuries and succumbed.
* Claimants being the legal heirs of the deceased filed claim petition under Section 166 of the M.V. Act for a compensation of Rs.15,00,000/- from the opponents. Opponents were served with summons. Opponent nos.1, 2 and 3 contested the claim petition by Page 2 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 00:32:07 IST 2025 NEUTRAL CITATION C/FA/2334/2011 JUDGMENT DATED: 24/04/2025 undefined filing Written Statement at Exhs.11, 12 and 23 respectively. After framing of issues, claimant No.1 - widow of deceased submitted her deposition at Exh.28 and produced FIR, Panchnama, PM report and other documents in support of claim petition. * After considering the evidence, learned Tribunal exonerated insurance company from liability to pay compensation and directed driver and owner of the Rickshaw to pay an amount of Rs.5,78,000/- to the claimants with interest @ 9% p.a. from the date of application till realisation.
* Being aggrieved and dissatisfied with the impugned judgment and award, the appellants - original claimants have filed the present appeal.
4. Learned advocate for the appellant has submitted that the deceased was 39 years of age and was earning Rs.8,000/- per month from practice as an advocate. In absence of any documentary evidence, learned tribunal considered income of deceased at Rs.4,800/- per month and 1/3rd Page 3 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 00:32:07 IST 2025 NEUTRAL CITATION C/FA/2334/2011 JUDGMENT DATED: 24/04/2025 undefined was deducted towards personal and living expenses. It is submitted that learned tribunal has exonerated insurance company from its liability to pay compensation as the driver of Rickshaw was found not having a valid driving licence. It is also submitted that Exh.38 is a certificate certifying that the driver of Rickshaw was holding LMV NT w.e.f. 3.4.2008. It is further submitted that on the date of accident, the driver of Rickshaw was driving the same category and type of vehicle for which he was holding licence and, therefore, the insurance company cannot be absolved from its liability. He has placed reliance upon decision of the Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Co. Ltd. reported in 2014(4) SCC 663.
5. Per contra, learned advocate for respondent/s - Insurance Company has supported the judgment and award and submitted that learned Tribunal has rightly considered the evidence on record and awarded just and reasonable compensation. The award passed by the learned Tribunal does not require any interference looking to the facts and circumstances of the case.
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6. I have considered the submissions of learned advocates for the respective parties and perused the Record and Proceedings. The issue involved in the present appeal is whether learned tribunal has rightly exonerated insurance company from its liability or not.
7. The contention of respondent - insurance company that the driver of the Rickshaw was not holding valid driving licence can be tested from the document produced at Exh.38 which is a certificate to drive licence issued by RTO. As per the said certificate, opponent No.1 was holding license of LMV NT. As per the deposition of the Officer of RTO, the licence was valid from 18.9.2002 to 17.9.2020. On the date of accident, opponent No.1 was holding valid driving license. The RC Book which is produced at Exh.36 would indicate that the vehicle was LMV and would fall under the category of LMV.
8. In the case of Mukund Dewangan (Supra) in paragraph Nos.60.1 and 60.2, Hon'ble Apex Court observed as under:
"60.1. "Light motor vehicle" as defined in Section 2(21) of the Act would include a transport vehicle as per the weight Page 5 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 00:32:07 IST 2025 NEUTRAL CITATION C/FA/2334/2011 JUDGMENT DATED: 24/04/2025 undefined prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.
60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form."
9. In view of the fact which is coming out on record that the gross vehicle weight does not exceed 7500 kg and, therefore, it would fall under the category of LMV.
10. Considering the law laid down by the Hon'ble Apex Court, the insurance company has wrongly been exonerated on the ground of not having valid driving licence. Resultantantly, the impugned judgment and award is quashed and set aside to the extent of exoneration of insurance company from its liability.
11. On the question of dependency, it is not a case made by claimants that claimant No.3 being a sister of deceased Page 6 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 00:32:07 IST 2025 NEUTRAL CITATION C/FA/2334/2011 JUDGMENT DATED: 24/04/2025 undefined was dependent upon her brother. It is also not coming out from the record as well as learned advocate for the appellant also could not point out whether the sister is married or not on the date of accident. In absence of any material, it would be just and proper to deduct ½ towards personal and living expenses.
12. In view of the above facts and circumstances, the claimant/s is/are entitled to following amount of compensation under the different heads:
Sr. Name of the Head Compensation
No. Amount
(In Rs.)
1 Future loss of Income :
Income per month 4800
(+)
Prospective Income (40%)
4800+1920 6720
(-)
Personal Expenses
Rs.6720X1/2nd 3360
Rs.3360/- X 12 X 15 multiplier 6,04,800/-
2. Loss of Estate 18,150/-
3. Funeral Expenses 18,150/-
4. Loss of Consortium 96,800/-
Total Compensation 7,37,900/-
(-) Awarded Amount 5,78,000/-
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NEUTRAL CITATION
C/FA/2334/2011 JUDGMENT DATED: 24/04/2025
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Enhanced Amount 1,59,900/-
Interest @ 7.5%
13. Therefore, total amount of compensation would come to Rs.7,37,900/- is required to be awarded with interest accrued thereon from the date of claim petition till its realisation, which would meet the ends of justice. It is pertinent to note that learned Tribunal has awarded Rs.5,78,000/- to the claimant/s, therefore, Rs.1,59,900/- (Rs.7,37,900-5,78,000) is required to be awarded with 7.5% p.a. interest.
14. For the reasons recorded hereinabove, the following order is passed:
[A]. The present appeal is partly allowed accordingly in above terms.
[B]. The Insurance Company is directed to deposit the enhanced amount Rs.1,59,900/- with 7.5% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, Page 8 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 00:32:07 IST 2025 NEUTRAL CITATION C/FA/2334/2011 JUDGMENT DATED: 24/04/2025 undefined within a period of six weeks from the date of receipt of this order.
[C]. 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, by `Account Payee Cheque' / RTGS / NEFT', after proper verification and after following due procedure.
[D]. While making the payment, the Tribunal shall deduct the Courts fees, if not paid, in accordance with the Rules.
[E]. Record & Proceedings, if any, be sent back to the concerned Tribunal, forthwith.
(D. M. DESAI,J) vk Page 9 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 00:32:07 IST 2025