Heirs Of Deceased Champaben ... vs Udesinh Amarsinh Parmar
2021 Latest Caselaw 18603 Guj

      C/FA/1/2011                              JUDGMENT DATED: 21/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 1 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1    Whether Reporters of Local Papers may be allowed No
     to see the judgment ?

2    To be referred to the Reporter or not ?                  Yes

3    Whether their Lordships wish to see the fair copyNo
     of the judgment ?

4    Whether this case involves a substantial question No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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HEIRS OF DECEASED CHAMPABEN SHANABHAI PARMAR, SHANABHAI
                        & 4 other(s)
                          Versus
            UDESINH AMARSINH PARMAR & 1 other(s)
==========================================================
Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1,2,3,4,5
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                           Date : 21/12/2021

                          ORAL JUDGMENT

1. The present appeal is filed by the original claimants challenging the impugned judgment and award passed by the Motor Accident Claims Tribunal (Main), Kheda at Nadiad dated 15.07.2010 in MACP No. 911 of 2009, whereby the Insurance

C/FA/1/2011 JUDGMENT DATED: 21/12/2021

Company was exonerated on the ground that the driver of the offending vehicle was having a legal and valid licence.

2. The brief facts of the present case are as under.

2.1 On 28.05.2009 an accident was occurred at about 12:00 O'clock in the noon in the sim of village Kalsar on the Darkor - Raniya road. The deceased Champaben Shanabhai Parmar wife of applicant No.1 and mother of applicant Nos. 2 to 5 was travelling as a passenger in a rickshaw bearing registration No. GJ-7-Z-3562. The rickshaw was driven with excessive speed and negligently. Due to which, it turned in the pit and thereby the deceased Champaben thrown out from rickshaw and sustained the fatal injuries. Initially she was taken to Dakor Hospital, but for better treatment shifted to Shri Krushna Hospital at Karamsad, where she died. She was aged about 40 years and earning Rs. 3,000/- per month as she was engaged in cattling and agriculture work.

3. Learned advocate for the appellants has contended that the Tribunal has committed a serious error by appreciating the evidence on record. It is further contended by the learned advocate for the appellants that the Tribunal has committed a serious error by appreciating the evidence led by the parties in inherent and prospective spirit. In support of his submission, learned advocate for the appellants has relied on the decision of the Hon'ble Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company reported in (2017) 14 SCC 663. In the case of Mukund Dewangan (supra), the Apex Court in Para Nos. 60.1 to 60.4 has held as under.

C/FA/1/2011 JUDGMENT DATED: 21/12/2021

"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 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."

4. Having heard learned advocates for the respective parties and having considered the ratio laid down by the

C/FA/1/2011 JUDGMENT DATED: 21/12/2021

Hon'ble Apex Court, the present appeal requires to be allowed and the impugned order passed by the Motor Accident Claims Tribunal (Main), Kheda at Nadiad dated 15.07.2010 in MACP No. 911 of 2009 requires to be modified to the extent that the Insurance Company is exonerated from the liability.

5. In view of above, the present appeal is allowed. The impugned judgment and award passed by the Motor Accident Claims Tribunal (Main), Kheda at Nadiad dated 15.07.2010 in MACP No. 911 of 2009 is modified to the extent that the Insurance Company is exonerated from its liability considering the ratio laid down by the Hon'ble Apex Court. The Insurance Company shall satisfy with the impugned award first and the Insurance Company can recover the said amount from the owner of the offending vehicle. No order as to costs.

Record and proceedings be sent back to the concerned Tribunal forthwith.

(HEMANT M. PRACHCHHAK,J) SALIM/