National Insurance Co Ltd vs Satishbhai Maheshbhai Baraiya ...
2021 Latest Caselaw 3145 Guj

           C/FA/34/2013                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/FIRST APPEAL NO. 34 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

==========================================================

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 ?

==========================================================
               NATIONAL INSURANCE CO LTD
                          Versus
SATISHBHAI MAHESHBHAI BARAIYA SINCE DECD. THROUGH HEIRS &
                         4 other(s)
==========================================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 1,2,3,4,5
==========================================================

    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                                 Date : 24/02/2021

                                ORAL JUDGMENT

1. Feeling aggrieved by and dissatisfied by the judgment and award dated 29.9.2012 passed by the Motor Accident Claims Tribunal (Aux.),

C/FA/34/2013 JUDGMENT

Nadiad in MACP No.1397 of 2019, 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:­

That, the accident occurred on 2.8.2009 when the deceased Satishbhai was driving his motorcycle bearing registration no. GJ­1 EF­ 7143. Record indicates that the deceased was passing through the market and at that time, a tractor­trolley bearing registration no. GJ­7 AN­3229 being driven in a rash and negligent manner came from the other side and ran over the deceased. The record further indicates that the deceased succumbed to such injuries on the spot. An FIR was registered with Mahemdabad Police Station bearing CR no. I­181 of 2009 and the respondents - original claimants filed the present claim petition under Section 163A of the Act and claimed compensation of Rs.4,53,300/­. The original claimant no.1 was examined at Exh.17 and the original claimants also relied upon the documentary evidence, such as, FIR Exh.22, Panchanma of the tractor Exh.23, inquest Panchnama Exh.24, postmortem report Exh.25, charge­sheet Exh.26, driving license of

C/FA/34/2013 JUDGMENT

original opponent no.1 Exh.29, R.C. book of tractor Exh.30, Panchnama of the place of accident Exh.53. The insurance Company also examined Amrishkumar Mukeshbhai Patel at Exh.38 and relied upon the documentary evidence, such as, extracts of registration of the tractor involved in the accident at Exh.39, driving license of original opponent no.1 Exh.40 and insurance policy of tractor Exh.48. The Tribunal, after appreciation of the evidence on record, applied structured formula and while partly allowing the claim petition, awarded total compensation of Rs.3,88,500/­ and being aggrieved by the same, the present appeal is filed by the appellant- insurance Company.

3. Heard Mr. H.G. Mazmudar, learned advocate for the appellant. Though served, no one appears for the respondents. I have also perused the original record and proceedings.

4. Mr. H.G. Mazmudar, learned advocate for the appellant has contended that the driver of the tractor involved in the accident who was driving tractor with a trolley possessed only license for Light Motor Vehicle and there was no endorsement of transport vehicle. It was contended that the driver of the tractor did not have a valid and effective license on the

C/FA/34/2013 JUDGMENT

date of the accident. It was also contended that the Tribunal has committed an error in not considering the plea of negligence raised by the appellant. According to Mr. Mazmudar, learned advocate for the appellant, even in claim petition filed under Section 163A of the Act, negligence has to be considered. It was further contended that the original claimant­ deceased was a pillion and therefore, even as per the structured formula, one­half is required to be deducted. On the aforesaid grounds, it was therefore contended by Mr. Mazmudar, learned advocate for the appellant that the impugned judgment and award deserves to be modified by allowing the appeal.

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

6. So far as the first contention about the non­ endorsement of transport vehicle in the driving license is concerned, the said issue is covered by the judgment of the Hon'ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited, (2017) 14 SCC 663, wherein the Hon'ble Apex Court has observed thus:­

C/FA/34/2013 JUDGMENT

"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 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)

C/FA/34/2013 JUDGMENT

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."

7. In the case on hand, it is not the case of the appellant that the driver of the tractor­ trolley did not have any license. The contention raised is that the license possessed by the driver of the truck­trolley in fact permitted only to drive Light Motor Vehicle and there was no endorsement of

C/FA/34/2013 JUDGMENT

transport vehicle. In view of the binding decision of the Hon'ble Apex Court in the case of Mukund Dewangan (supra), the said contention deserves to be negatived.

8. Similarly, the second contention raised by the learned advocate for the appellant to the effect that even in claim petition under Section 163A of the Act, negligence has to be considered, is considered by the Hon'ble Apex Court in the case of United India Insurance Co. Ltd. Vs. Sunil Kumar, AIR 2017 SC 5710, wherein the Hon'ble Apex Court has held that it is not open for the insurer to raise any defence of negligence on the part of the victim in a claim petition under Section 163A of the Act. It would be appropriate to refer to the observations made by the Hon'ble Apex Court in the case of Sunil Kumar (supra), wherein the Hon'ble Apex Court has observed thus:­

"6. Deepal Girishbhai Soni's case (supra), in fact, arose out of a reference made for a decision on the correctness of the view expressed in Oriental Insurance Co. Ltd. vs. Hansrajbhai V. Kodala and other4 that determination of compensation in a proceeding under Section 163A of the Act is final and further proceedings under Section 166 of the Act is barred. The opinion rendered

C/FA/34/2013 JUDGMENT

in Hansrajbhai V. Kodala (supra) contains an elaborate recapitulation of the reasons behind the enactment of Section 92A to 92E of the Old Act (i.e. Motor Vehicles Act, 1939) (corresponding to Sections 140 to 144 of the present Act) introducing for the first time the concept of 'no fault liability' in departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for death or permanent disablement caused on account of a motor vehicle accident. In the said report, there is a reference to the deliberations of the Committee constituted to review the provisions of the Motor Vehicles Act, 1988 and the suggestions of the Transport Development Council on the basis of which the draft Bill of 1994 was enacted, inter alia, to provide for:

"(h) increase in the amount of compensation to the victims of hit­ and­run cases;

(k) a new predetermined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational."

7. As observed in Hansrajbhai V.

Kodala (supra) one of the suggestions made by the Transport Development Council was "to provide adequate compensation to victims of road accidents without going into long drawn procedure." As a sequel to the recommendations made by the

C/FA/34/2013 JUDGMENT

Committee and the Council, Section 140 was enacted in the present Act in place of Section 92A to 92E of the Old Act. Compensation payable thereunder, as under the repealed provisions, continued to be on the basis of no fault liability though at an enhanced rate which was further enhanced by subsequent amendments. Sections 140 and 141 of the present Act makes it clear that compensation payable thereunder does not foreclose the liability to pay or the right to receive compensation under any other provision of the Act or any other law in force except compensation awarded under Section 163A of the Act. Compensation under Section 140 of the Act was thus understood to be in the nature of an interim payment pending the final award under Section 166 of the Act. Section 163­A, on the other hand, was introduced in the New Act for the first time to remedy the situation where determination of final compensation on fault basis under Section 166 of the Act was progressively getting protracted. The Legislative intent and purpose was to provide for payment of final compensation to a class of claimants (whose income was below Rs.40,000/­ per annum) on the basis of a structured formula without any reference to fault liability. In fact, in Hansrajbhai V. Kodala (supra) the bench had occasion to observe that:

"Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of

C/FA/34/2013 JUDGMENT

ever­increasing motor vehicle accidents in a fast­moving society. Further, the law before insertion of Section 163­A was giving limited benefit to the extent provided under Section 140 for no­fault liability and determination of compensation amount on fault liability was taking a long time. That mischief is sought to be remedied by introducing Section 163­A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured­formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the defaulting vehicles."

8. From the above discussion, it is clear that grant of compensation under Section 163­A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the

C/FA/34/2013 JUDGMENT

very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self­contradictory but also defeat the very legislative intention."

9. Following the ratio laid down by the Hon'ble Apex Court in the above­referred judgments, the contention as regards negligence raised by the appellant deserves to be negatived.

10. The third contention raised by Mr. Mazmudar, learned advocate for the appellant that there should be deduction to the tune of one­half also, in facts of this case, deserves no merit as the Tribunal has awarded just compensation and in facts of this case, even on such ground, no interference is called for. The appeal therefore fails and is hereby dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA, J) MRP