New India Assurance Co. Ltd. vs Pinaben Wd-O. Rohitbhai ...
2021 Latest Caselaw 3089 Guj

         C/FA/556/2014                                            JUDGMENT



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO.              556 of 2014

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
     PINABEN WD­O. ROHITBHAI RAMESHBHAI GAMIT & 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
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3,4
RULE SERVED(64) for the Defendant(s) No. 5
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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 04.10.2013 passed by the Motor Accident Claims Tribunal (Aux), Vyara, in MACP No. 76 of 2011, the insurance company has preferred this appeal under Section 173 of the

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Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The following facts emerge from the record of the appeal -

2.1 That on 05.01.2011, at 21.00 hrs., when the deceased was going from Chikhalda village to Khurdi village on his motorcycle bearing registration No. GJ­19­N­4483 with utmost care and caution, and while passing through Chikhalda­Vyara Highway, at that time one tempo bearing registration no. GJ­15­T­ 5900, being driven in rash and negligent manner, without giving any signal or blowing horn, dashed with the motorcycle of the deceased due to which the deceased received serious injuries and succumbed to the injuries. Police complaint being C.R. No. 3/2011 came to be registered before the Vyara Police Station against the driver of the said tempo.

2.2 Claim Petition under Section 166 of the Act came to be filed by the heirs of the deceased and claimed compensation of Rs. 6,00,000/­. The original claimant no.1 had deposed at exhibit 18. Various documentary evidences were relied upon by the parties such as FIR at exhibit 28, Panchnama at exhibit 29, inquest panchnama at exhibit 30, PM report at exhibit 31, copy of the

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charge­sheet at exhibit 32, copy of the RC book at exhibit 33, School Leaving Certificate of the deceased at exhibit 34, birth certificate at exhibit 35, Driving license at exhibit 25, Insurance policy at exhibit 38, Goods carriage permit of the vehicle at exhibit 39, RC book at exhibit

42. The Tribunal after appreciation of the evidence, was pleased to award a sum of Rs. 4,18,000/­ with 8% interest to be paid jointly and severally. Being aggrieved by the same, the insurance company has preferred the present appeal.

3. Heard Mr. H.G. Mazmudar, learned advocate for the appellant and Mr. Hiren Modi, learned advocate for THE original claimants­respondents no.1 to 4. Though served, no one appears for respondent no.5.

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

5. Mr. Mazmudar, learned advocate for the appellant insurance company contended that though the vehicle involved in the accident was a transport vehicle, the driver of the said vehicle was holding license to driving non­transport vehicle, and was not holding valid and effective driving license to drive transport vehicle and therefore, the award passed by the learned

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Tribunal deserves to be set aside. On the aforesaid ground, Mr. Mazmudar contended that the appeal deserves to be allowed and the appellant insurance company deserves to be exonerated.

6. Mr. Hiren Modi, learned advocate appearing for the original claimants has supported the impugned award. It was submitted by Mr. Modi that the issue involved in the present claim petition as regards endorsement of transport vehicle is concerned, is covered by the judgment of the Apex Court in the case of Mukund Dewangan s. Oriental Insurance Co. Ltd. reported in (2017) 14 SCC 663. Mr.Modi, learned advocate contended that the appeal being meritless, deserves to be dismissed.

7. No other or further contentions have been raised by the learned advocates appearing for the parties.

8. The contention of Mr. Mazmudar to the effect that the license of the driver of the tempo had no endorsement of driving 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

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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 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

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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. Thus, the ground raised by Mr. Mazmudar fails and the appeal deserves to be dismissed and is hereby dismissed.

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