New India Assurance Co. Ltd vs Ushaben Wd-O Premchand Zavrabhai ...
2021 Latest Caselaw 3163 Guj

          C/FA/2881/2013                                        JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 2881 of 2013


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
USHABEN WD-O PREMCHAND ZAVRABHAI GUJARATI -MALI & 7 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 SHAIVAL PATEL for MR NIRAL R MEHTA(3001) for the Defendant(s)
No. 1,2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 5
RULE SERVED(64) for the Defendant(s) No. 3,4,6,7,8.1,8.2
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    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 19.1.2013 passed by

C/FA/2881/2013 JUDGMENT

the Motor Accident Claims Tribunal (Aux.), Panchmahal at Godhra in MACP No.534/02, 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 10.11.2001 at about 09:00 p.m. at Zalod­Santrampur Road, near Sukhsar Village. It is the case of the original claimants that the deceased-Premchand and the deceased-Anil were traveling in a Maruti Van bearing registration no. GJ­6 AA­ 6131 and the Maruti Van was being driven by the deceased Anilbhai. Record indicates that when the Maruti Van reached Sukhsar Village because of the negligence on the part of the driver of the Maruti Van - Anilbhai, the Maruti Van dashed with the tractor bearing registration no. GJ­17 D­136 and trolley bearing registration no. GJ­17 T­8401. Ultimately, because of the accident, deceased­ Anilbhai sustained fatal injuries. An FIR was lodged with the jurisdictional Police Station bearing CR no. I­163/01 and the present claim petition was filed under Section 166 of the Act and the respondents ­ original claimants

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raised claim of Rs.6,48,000/­. Oral evidence was led at Exh.28 of Ushaben Premchandbhai Gujarati (Mali) and documentary evidences were also relied upon, such as, FIR Exh.36, Panchnama Exh.37, driving licence Exh.38, R.C. Book Exh.39, R.C.Book of tractor Exh.40, postmortem report Exh.41, charge­sheet Exh.42, driving licence Exh.43, school leaving certificate of the deceased Exh.44, driving license of original opponent no.4 Exh.45, insurance policy Exh.46. The Tribunal came to the conclusion that drivers of both the vehicles were negligent for the accident and upon appreciation of the evidence on record, the Tribunal was pleased to award Rs.4,60,800/­ as compensation under future loss of income and further awarded an additional sum of Rs.20,000/­ for loss of estate and consortium and Rs.2,000/­ for funeral expenses and thus, awarded total compensation of Rs.4,82,800/­ with 9% interest per annum from the date of filing of the claim petition till its realization 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, Mr. Shaival Patel, learned advocate for Mr. Niral Mehta, learned advocate for the respondents ­ original claimants and

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Mr. Vibhuti Nanavati, learned advocate for respondent no.5 - insurance Company. Though served, no one appears for the other 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 tractor­trolley did not possess a valid and effective license. According to the learned advocate for the appellant, license of the driver of the tractor­trolley did not have any endorsement of transport vehicle. It was therefore contended that the appellant­ insurance Company deserves to be exonerated.

5. Mr. Patel, learned advocate for the respondents ­ original claimants has supported the impugned judgment and award.

6. Mr. Vibhuti Nanavati, learned advocate for the respondent no.5 ­ insurance Company has also adopted the arguments made by Mr. Mazmudar, learned advocate for the appellant ­ insurance Company.

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

C/FA/2881/2013 JUDGMENT

8. Upon appreciation of the evidence on record, it appears that the driver of the tractor­ trolley at Exh.43 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 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

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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 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

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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 tractor­ trolley did not have any license. The contention raised is that the license possessed by the driver of the tractor­trolley 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.

10. 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