Gujarat High Court
New India Assurance Co. Ltd vs Hareshkumar Narendrakumar Alias ... on 24 February, 2021
Bench: R.M.Chhaya
C/FA/1760/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1760 of 2017
With
R/FIRST APPEAL NO. 1761 of 2017
With
R/FIRST APPEAL NO. 1762 of 2017
With
R/FIRST APPEAL NO. 1763 of 2017
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
HARESHKUMAR NARENDRAKUMAR ALIAS NAVANDRAM PARWANI & 3
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 PALAK H THAKKAR(3455) for the Defendant(s) No. 4
RULE SERVED(64) for the Defendant(s) No. 1,2,3
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 24/02/2021
Page 1 of 8
Downloaded on : Thu Jan 13 02:59:15 IST 2022
C/FA/1760/2017 JUDGMENT
ORAL JUDGMENT
1. These appeals arise out of the common judgment
and award dated 28.12.2016 rendered by the
Motor Accident Claims Tribunal (Main),
Junagadh in MACP nos. 571/04, 54/16, 52/16 and
53/16. The Tribunal has partly allowed all the
claim petitions and has awarded compensation
with 9% interest per annum from the date of
filing of the claim petition till its
realization as under:
MACP no. 54/16 Rs.3,93,500/
MACP no. 52/16 Rs.7,53,000/
MACP no. 53/16 Rs.7,53,000/
MACP no. 571/04 Rs.1,35,000/
2. Feeling aggrieved by and dissatisfied with the
same, the appellant-insurance Company has
preferred these appeals under Section 173 of
the Motor Vehicles Act, 1988 (hereinafter
referred to as "the Act").
3. Following facts emerge from the record of the
appeal:
That, the accident occurred on 9.7.2004 at
about 09:30 p.m., near Galodar Village on
JunagadhVeraval Highway. It is the case of
the original claimants that the deceased-Abdul
C/FA/1760/2017 JUDGMENT
Razak, Ravikumar Anilbhai, Manishkumar
Anilbhai and Hareshkumar Narendrakumar were
traveling in a luxury bus bearing registration
no. GJ11 T1729 being driven by the original
opponent no.1 and the said luxury bus dashed
with the stationary truck bearing registration
no. GJ3 Y8083. Because of the injuries
sustained, 3 out of 4 persons succumbed to the
same and thereafter, MACP no.54/16 was filed
under Section 163A of the Act and compensation
claim petitions i.e. MACP no.52/16 was filed
under Section 166 of the Act and compensation
of Rs.5,00,000/ was claimed, MACP No.53/16
was filed under Section 166 of the Act and
compensation of Rs.5,00,000/ was claimed and
MACP no.571/04 was filed under Section 166 of
the Act and compensation of Rs.3,00,000/ was
claimed. All the appeals are heard together
and same set of evidence has been considered
by the Tribunal while passing the impugned
judgment and award. The original claimants
relied upon the oral deposition of Nasimben
Abdul Razak, claimant of MACP no.54/16 at
Exh.34, Dilipbhai Lakhabhai Barad, one of the
claimants of MACP no.54/16 at Exh.71, Anilbhai
Parsotambhai Mavadiya at Exh.20, Pravinbhai
Meghjibhai Sansiya at Exh.81 and Hareshkumar
Narendrakumar Parwani at Exh.35. The original
claimants also relied upon the documentary
C/FA/1760/2017 JUDGMENT
evidence, more particularly, enlisted in
Paragraph 7 of the impugned judgment and
award. After appreciating the evidence on
record, the Tribunal allowed each of the claim
petitions and awarded compensation as observed
hereinabove. Being aggrieved by the same, the
appellant - insurance Company of the luxury
bus has preferred these appeals.
4. Heard Mr. H.G. Mazmudar, learned advocate for
the appellants in all the appeals, Mr. Palak
Thakkar, learned advocate for the other
insurance Company. Though served, no one
appears for the other respondents. It is also
pointed out by Mr. Mazmudar that in First
Appeal no.1761/17 to First Appeal no.1763/17,
the heirs are already on record and therefore,
the respondents who are shown to have expired
may be deleted. The appellant is permitted to
delete the original claimants who have expired
during pendency of these appeals.
5. Mr. H.G. Mazmudar, learned advocate for the
appellant has raised a sole contention to the
effect that the driver of the luxury bus does
not have a valid and effective driving
license. It was contended that there was no
endorsement of transport vehicle and
therefore, the driver of the luxury bus was
not authorized to drive a commercial or
C/FA/1760/2017 JUDGMENT
transport vehicle and in absence of any such
endorsement in the license, the appellant
insurance Company cannot be held to be liable
to indemnify the original claimants who are
third parties. On the aforesaid grounds, Mr.
Mazmudar, learned advocate for the appellant
contended that the appeals may be allowed and
the appellant - insurance Company also
deserves to be exonerated.
6. Mr. Palak Thakkar, learned advocate for the
other insurance Company has submitted that the
insurance Company of the truck is already
exonerated.
7. No other or further submissions, grounds
and/or contentions are made by the learned
advocates appearing for the respective
parties.
8. Upon appreciation of the evidence on record,
it appears that the driver of the luxury bus
was having a valid and effective driving
license, but for the Light Motor Vehicle. The
contention raised by Mr. Mazmudar, learned
advocate for the appellant is covered by the
decision 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/1760/2017 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
C/FA/1760/2017 JUDGMENT
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."
9. In the case on hand, it is not the case of the
appellant that the driver of the luxury bus
did not have any license. The contention
raised is that the license possessed by the
driver of the luxury bus in fact permitted
only to drive Light Motor Vehicle and there
was no endorsement of transport vehicle. In
C/FA/1760/2017 JUDGMENT
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.
10. Mr. Mazmudar has also made an attempt to raise
the issue on the quantum as well as liability.
Upon reappreciation of the evidence on record
both in form or oral as well as documentary
evidence, it is found that the Tribunal has
correctly appreciated the evidence on record
and has rightly come to the conclusion that
that the driver of the luxury bus was solely
negligent. Considering the manner in which the
accident has occurred, no such view needs to
be taken. As far as quantum is concerned, this
Court finds that the Tribunal has rightly
assessed the documentary evidence. Resultantly
on all 3 grounds, the appeals fail and are
hereby dismissed. However, there shall be no
order as to costs.
(R.M.CHHAYA, J)
MRP
