National Insurance Company vs Sanjaybhai Pratapsinh Rathod
2021 Latest Caselaw 18388 Guj

      C/FA/5969/2019                             JUDGMENT DATED: 14/12/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 5969 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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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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                        NATIONAL INSURANCE COMPANY
                                    Versus
                       SANJAYBHAI PRATAPSINH RATHOD
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
DR RUSHANG D MEHTA(6989) for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1
RULE NOT RECD BACK(63) for the Defendant(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                            Date : 14/12/2021
                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

C/FA/5969/2019 JUDGMENT DATED: 14/12/2021

1. Feeling aggrieved and dissatisfied by the judgment and award dated 17.10.2018 passed by the Motor Accident Claims Tribunal (Aux), Vadodara at Savli in MACP no.1934/15, the appellant-insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. Following facts emerge from the record of the appeal:-

2.1 That the accident took place on 7.4.2004. It is the case of the original claimant that on that day, the claimant along with one Ramuday Prabhuray Kurmi was returning to Sundar Metal Company from Manjusar after completing their work at English Medium School on motorcycle bearing registration no. GJ-6 AJ-7745, which was driven in a moderate speed and on correct side of the road. At that time, a tempo bearing registration no. GJ-6 Y-5467 came from opposite direction being driven in a rash and negligent manner and dashed with the motorcycle, as a result of which, the original claimant and his friend both fell down on the road and the original claimant sustained injuries and his friend - Ramuday Prabhuray Kurmi died during the treatment.

C/FA/5969/2019 JUDGMENT DATED: 14/12/2021

2.2 The original claimant was examined at Exh.15.

The original claimant also relied upon the documentary evidences, such as, copy of complaint Exh.26, copy of Panchnama Exh.27, copy of driving license of the tempo Exh.28, copy of R.C. Book of tempo Exh.29, copy of original medical bills Exh.31, copy of consent purshis to treat disability @ 12% Exh.19 and the disability certificate Exh.19/A. It was the case of the original claimant that because of the injuries sustained in the accident, he had acquired 12% disability of the body as a whole that too, at the age of 31 years. It was further the case of the original claimant that he was running a Grocery shop and was also doing agriculture work and was earning Rs.10,000/- per month. The Tribunal considered the income of the original claimant at Rs.4,200/- per month and applied multiplier of 16 and awarded a sum of Rs.97,000/- towards future loss of income. The Tribunal also awarded Rs.8,400/- towards actual loss of income for two months, Rs.1,05,000/- towards medical expenses, Rs.10,000/- towards attendant, special diet and transportation expenses and Rs.15,000/- towards pain, shock and suffering including loss of amenities of life and thus, awarded total compensation of Rs.2,35,400/- along with 9% interest per annum

C/FA/5969/2019 JUDGMENT DATED: 14/12/2021

with proportionate costs and interest from the date of filing of the claim petition till its realization. Being aggrieved by the same, the appellant-insurance Company has preferred this appeal.

3. Heard Dr. Rushang Mehta, learned advocate for the appellant - insurance Company and Mr. Mohsin Hakim, learned advocate for the original claimant. The liability is not denied by the insurance Company and more so, the appeal is on other issues and therefore, presence of other respondents is not necessary to decide the present appeal.

4. Dr. Rushang Mehta, learned advocate for the appellant - insurance Company contended that the driver of the goods carriage vehicle involved in the accident was holding a license to drive Light Motor Vehicle (Non-transport) and therefore, there is clear breach of the conditions of the contract and such fundamental breach would absolve the insurance Company from its liability. Dr. Mehta further contended that the Tribunal has, without there being any proof, come to the conclusion that the income of the original claimant was Rs.4,200/- per month. Dr. Mehta contended that even if the minimum wages standard is considered, the same would be hardly

C/FA/5969/2019 JUDGMENT DATED: 14/12/2021

Rs.3,000/- per month. Dr. Mehta also made an attempt to contend that the compensation awarded under other heads are also excessive in nature and submitted that the appeal deserves to be allowed by modifying the impugned judgment and award.

5. Per contra, Mr. Hakim, learned advocate for the original claimant has opposed the appeal. According to Mr. Hakim, the Tribunal has correctly assessed the income of the original claimant and on the contrary, has awarded a meager amount of Rs.10,000/- under the head of attendant, special diet and transportation charges and Rs.15,000/- towards pain, shock and suffering including loss of amenities of life, which in fact is required to be enhanced. However, as the original claimant has not preferred any appeal, this Court may dismiss the appeal filed by the appellant - insurance Company as what is awarded by the Tribunal is just, proper and adequate compensation. It is therefore contended that the appeal, being merit-less, deserves to be dismissed.

6. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

C/FA/5969/2019 JUDGMENT DATED: 14/12/2021

7. We have gone through the original record and proceedings of the Tribunal. It is a matter of fact that the original claimant was running a Grocery shop. The Tribunal has not believed the tall claim placed by the original claimant i.e. the income is Rs.10,000/- per month, but has determined the income at Rs.4,200/- per month. Considering the fact that the original claimant is under a way businessman may be running a Grocery shop, the income at Rs.4,200/- per month determined by the Tribunal is just and proper. In facts of this case, this Court is of the opinion that the Tribunal has committed no error in determining the notional income of the Tribunal at Rs.4,200/- per month i.e. Rs.50,400/- per year from the date of the accident. As there is no controversy or dispute as regards disability, the same is not required to be dealt with by this Court.

8. The contention as regards the license is not raised. The issue raised by Dr. Mehta is clearly covered by the judgment in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited, reported in (2017) 14 SCC 663. The Hon'ble Apex Court has observed thus:-

C/FA/5969/2019 JUDGMENT DATED: 14/12/2021

"60. Thus we answer the questions which are referred to us thus:

60.1 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.

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 road roller, '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 road-roller, 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 54/1994 and 28.3.2001 in the form.

60.3 The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses

(e) to (h) of section 10(2) which contained "medium goods vehicle" in

C/FA/5969/2019 JUDGMENT DATED: 14/12/2021

section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)

(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.

60.4 The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."

9. Following the judgment of the Hon'ble Apex Court in the case of Mukund Devgan (supra) in the present case also, the driver of the vehicle involved in the accident was possessing valid and subsisting driving license to drive Light Motor Vehicle (Non- transport) and hence, following the judgment of the Hon'ble Apex Court in the case of Mukund Devgan (supra), the contention that the

C/FA/5969/2019 JUDGMENT DATED: 14/12/2021

license was not valid in absence of any endorsement to drive goods vehicle is negatived.

10. Upon reappreciation of the evidence on record, we hold that the Tribunal has granted just and adequate compensation under different heads and the same does not require to be interfered in exercise of the appellate jurisdiction of this Court. The appeal, being merit-less, deserves to be dismissed and is hereby dismissed. However, there shall be no order as to costs. Registry is directed to remit the record and proceedings back to the Tribunal forthwith.

(R.M.CHHAYA,J)

(MAUNA M. BHATT,J) Maulik