New India Assurance Co Ltd vs Sardarbhai Somabhai Vanjara
2021 Latest Caselaw 3088 Guj

         C/FA/3877/2012                              JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO. 3877 of 2012
                                 With
                    R/FIRST APPEAL NO. 3878 of 2012

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

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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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                   NEW INDIA ASSURANCE CO LTD
                              Versus
            SARDARBHAI SOMABHAI VANJARA & 4 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
 for the Defendant(s) No. 5
MR MTM HAKIM(1190) for the Defendant(s) No. 1,2
MR.HIREN M MODI(3732) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2,3,4
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                          Date : 23/02/2021

                            ORAL JUDGMENT

1. Being aggrieved and dissatisfied by the judgment and award dated 20.08.2012 passed buy the Motor

C/FA/3877/2012 JUDGMENT

Accident Claims Tribunal (Main) Sabarkantha at Himmatnagar in MACP Nos. 419 and 420 of 2007, the insurance company has preferred both these appeals under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. Both the appeals arise out of the same accident and same set of evidence is adduced before the Tribunal and hence, both appeals were heard together and are disposed of by this common judgment and order.

3. As per the record of the appeal, it transpires that the accident took place on 23.12.206. The deceased minor Bharat and injured minor Prakash along with other passengers were travelling from Satalpur to Talod in rickshaw bearing registration No.GJ­1­V­854. The record indicates that while the rickshaw was passing trough Sanman Society at Talod, a tractor trolley bearing Engine No. 511026400858 and Chasis No. 911015147625 came from the other side and dashed with the rickshaw in such a manner that the rickshaw got dragged and the passengers travelling in the rickshaw sustained serious injury. The record indicates that the minor Bharat and Prakash were first taken at Civil Hospital, Talod, then to Civil Hospital, Himmatnagar and thereafter taken to Civil Hospital, Ahmedabad where minor Bharat succumbed

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to injuries. The present claim petitions were filed by the respondents­original claimants being MACP No. 419 of 207 claiming compensation of sad demise of minor Bharat and for injury of minor Prakash for Rs. 3 lakhs and 1 lakh respectively.

4. The original claimants in MACP No. 419 of 2007 was examined at exhibit 40 and the original claimant of MACP No. 420 of 2007 was examined at exhibit 36. Various documentary evidences were relied upon by the parties such as copy of the FIR at exhibit 33, panchnama of the place of incident at exhibit 34, panchnama of the rickshaw at exhbit 35, panchnama of the tractor at exhibit 3, inquest panchnama of deceased minor bharat at exhibit 37, PM report of deceased Bharat at exhibit 38, injury certificate of Prakash issued by Civil Hospital, Ahmedabad at exhibit 53, discharge card of Prakash at exhibit 54, Medical bills, receipts and reports of Prakash at exhibits 55 to 59, Medical bills, reports and receipts of deceased Bharat at exhibit 67 to 86 and disability certificate of Prakash issued by Dr. Vijay Sheth and N.K. Acharya at exhibit 91 and 97.

5. The Tribunal after appreciation of the oral as well as documentary partly allowed the MACP No. 419 of 2007 and awarded a sum of Rs. 1,30,180/­ with 8% interest p.a. and was pleased to partly

C/FA/3877/2012 JUDGMENT

allow the claim petition No. 420 of 2007 against the owner of tractor and the appellant insurance company and awarded a sum of Rs. 61,250/­. Being aggrieved by such common judgment and award, both these appeals are preferred by the appellant insurance company.

6. Heard Mr. H.G. Mazmudar, learned advocate for the appellant and Mr. M.T.M. Hakim, learned advocate for respondent No.1 and 2, Mr. Hiren Modi, learned advocate for respondent no.3 in First Appeal No. 3877 of 2012 and Mr. M.T.M. Hakim for respondent no.1 and Mr. Hiren Modi for respondent no.2 in First Appeal No. 3878 of 2012. Though served, no one appears for other respondents.

7. I have also perused copies of the relevant evidence, which were supplied by the learned advocates appearing for the parties.

8. Mr. Mazmudar, learned advocate appearing for the appellant has contended that the Tribunal has failed to consider the principle of indemnity while passing the impugned award. It was also contended by Mr. Mazmudar that the Tribunal did not consider that the tractor was registered for the use of agricultural purpose only and when the accident occurred, it was found that the vehicle was used for carrying sand, i.e., for commercial purpose. According to Mr. Mazmudar, the vehicle was not insured for commercial

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purpose. It was also contended by Mr. Mazmudar that the driver of the tractor was not holding a valid and effective license on the date of the accident to drive any transport vehicle and his license was not having any endorsement to drive transport vehicle. On the aforesaid grounds therefore, Mr. Mazmudar contended that both the appeals deserve to be allowed and the appellant insurance company deserve to be exonerated.

9. Mr. Hiren Modi, learned advocate appearing for the original claimants has supported the impugned award. It was submitted by Mr. Modi that even though the contention is raised that the tractor was registered for agricultural purpose, the policy does not show that it was for any specific purpose. Mr. Modi further contended that the issue as regards endorsement is covered by the judgment of the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd. reported in (2017) 14 SCC

663. Mr. Modi therefore contended that the appeals are meritless and the same deserves to be dismissed.

10. Mr. Hakim has not made any submissions on merits.

11. As far as the contention of the registration of the tractor for a particular purpose only is concerned, the same is not at all proved by the appellant. Upon re­

C/FA/3877/2012 JUDGMENT

appreciation of the evidence, there is no evidence to show that the tractor was registered only for the purpose of agricultural use and therefore, the contention raised by Mr. Mazmudar deserves to be negatived.

12. The contention raised by Mr. Mazmudar to the effect that the license of the driver of the tractor had no endorsement of transport vehicle is concerned, the said issue is covered by the judgment of the Apex Court in the case of Mukund Dewangan (supra), wherein the Hon'ble Apex Court has observed thus -

"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 road­roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to

C/FA/3877/2012 JUDGMENT

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."

13. Thus, all the grounds raised by Mr. Mazmudar fail and the appeals deserve to be dismissed and are hereby dismissed.

(R.M.CHHAYA, J) BIJOY B. PILLAI