Gujarat High Court
New India Assurance Co. Ltd vs Hasuben Anopsinh Bariya on 24 February, 2021
Bench: R.M.Chhaya
C/FA/3412/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3412 of 2013
With
R/FIRST APPEAL NO. 2453 of 2013
With
R/FIRST APPEAL NO. 2454 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 ?
==========================================================
NEW INDIA ASSURANCE CO. LTD.
Versus
HASUBEN ANOPSINH BARIYA & 1 other(s)
==========================================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR CHETANKUMAR K SHAH(7364) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2
==========================================================
CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 24/02/2021
COMMON ORAL JUDGMENT
1. All these appeals are directed against the
same judgment and award and hence, all the
C/FA/3412/2013 JUDGMENT
appeals are clubbed together and are hereby
disposed of by this common judgment and order.
2. The present appeals are directed against the
common judgment and award dated 20.2.2013
passed by the Motor Accident Claims Tribunal
(Aux.), Panchmahal at Godhra in MACP
Nos.339/07, 338/07 and 452/07.
3. Following facts emerge from the record of the
appeal:
Suffice it to note that the accident occurred
on 18.1.2007 at about 17:15 hrs. In First
Appeal no.3412 of 2013, the original claimant-
Hasuben is an insured who was walking on the
road side and was hit by the impeding vehicle
bearing tempo no.GJ17 X7898. Similarly,
First Appeal no.2453 of 2013 arises out of
MACP No.338/07, wherein the original claimant-
Sukhiben was hit by the same tempo in a
similar manner on 18.1.2007. First Appeal
no.2454 of 2013 arises out of MACP no.452/07,
wherein the deceased Sangitaben was insured in
the same accident and was hit by the same
tempo. The said claimants succumbed to the
fatal injuries.
4. Heard Mr. H.G. Mazmudar, learned advocate for
the appellant in all the appeals and Mr.
C/FA/3412/2013 JUDGMENT
Chetankumar Shah, learned advocate for the
original claimants in all the appeals. Though
served, no one appears for the other
respondents.
5. The sole contention raised in these appeals by
Mr. H.G. Mazmudar, learned advocate for the
appellant is that the driver of the tempo did
not possess a valid and effective driving
license. According to the learned advocate for
the appellant, as there was no endorsement of
transport vehicle in the license possessed by
the driver of the tempo, the appellant
insurance Company deserves to be exonerated.
The Tribunal disbelieved the case of the
appellant. Relying upon the decision of the
Hon'ble Apex Court in the case of National
Insurance Company Limited Vs. Swaran Singh as
well as the decision of the Hon'ble Supreme
Court in the case of Oriental insurance
Company Ltd. Vs. Zaharulnisha & Ors., AIR 2008
SC 2218, the Tribunal was pleased to partly
allow the claim petitions and awarded
Rs.61,500/ in MACP No.339/07 i.e. First
Appeal no.3412/13, Rs.61,000/ in MACP
No.338/07 i.e. First Appeal no.2453/13 and
Rs.2,25,000 in MACP no.452/07 i.e. First
Appeal no.2454/13.
C/FA/3412/2013 JUDGMENT
6. No other or further submissions, grounds
and/or contentions are made by the learned
advocates appearing for the respective
parties.
7. Upon appreciation of the evidence on record,
it appears that the license of the driver of
the tempo shows that the license was a valid
and effective, 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:
"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
C/FA/3412/2013 JUDGMENT
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 substituted in
C/FA/3412/2013 JUDGMENT
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."
8. In the case on hand, it is not the case of the
appellant that the driver of the tempo did not
have any license. The contention raised is
that the license possessed by the driver of
the tempo in fact permitted only to drive
Light Motor Vehicle and there was no
endorsement of 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.
9. The appeal therefore fails and is hereby
dismissed. However, there shall be no order as
to costs. Registry is directed to send the
original record and proceedings back to the
Tribunal forthwith.
(R.M.CHHAYA, J)
MRP
