United India Insurance Company ... vs Shantuben Raghubhai Vaghela - ...
2021 Latest Caselaw 3164 Guj

          C/FA/2318/2016                                         JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 2318 of 2016


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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           UNITED INDIA INSURANCE COMPANY LIMITED.
                             Versus
      SHANTUBEN RAGHUBHAI VAGHELA - LEGAL HEIRS OF DECD.
       RAGHUBHAI TABHABHAI @ RAMABHAI VAGHELA & 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
RULE SERVED BY DS(65) for the Defendant(s) No. 3,4
RULE SERVED(64) for the Defendant(s) No. 1,2
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                                   Date : 24/02/2021

                                  ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied by the judgment and award dated 3.8.2016 passed by

C/FA/2318/2016 JUDGMENT

the Motor Accident Claims Tribunal (Aux.), Ahmedabad (Rural) in MACP No.396/13, 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 7.11.2012 at about 09:15 a.m. near Kalupur, Ahmedabad City. It is the case of the original claimants that the deceased Raghubhai was on his bicycle on the correct side of the road and when he reached Opp. Keshavlal Na Dela, Nr. Kamdar Chokdi, driver of the vehicle loading Rickshaw bearing registration no. GJ­1 CY­043 came from the other side without observing traffic rules because of which he lost control over the rickshaw. Record indicates that because of the rash and negligent driving, the rickshaw turned turtled and deceased Raghubhai was pressed in between. It is the case of the original claimants that the deceased Raghubhai succumbed to the same and ultimately, died after 3 days i.e. 10.11.2012. An FIR was lodged with Gomtipur Police Station bearing CR no. I­134/12 and the present claim petition was filed under Section 166 of the Act and the

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original claimants claimed total compensation of Rs.5,00,000/­. It was the case of the original claimants that the deceased was aged 60 years and was doing work as cobbler and was earning Rs.5,000/­ per month. The original claimant - Shantuben was examined at Exh.23 and the original claimants also relied upon the documentary evidence, such as, FIR Exh.25, Panchnama of the scene of occurrence Exh.26, inquest Panchnama Exh.27, postmortem report Exh.28, insurance policy of loading rickshaw Mark 24/5, R.C. Book of the loading rickshaw Mark 25/6. The insurance Company also examined one Hiteshkumar Amthabhai Desai, Junior Clerk of RTO, Ahmedabad at Exh.33 and produced driving license of the vehicle involved i.e. loading rickshaw at Exh.35. After appreciation of the evidence on record, the Tribunal was pleased to hold that the driver of the rickshaw was solely negligent for the accident and while partly allowing the claim petition, the Tribunal awarded sum of Rs.2,88,000/­ as compensation under the head of future loss of income, Rs.50,000/­ towards consortium, Rs.50,000/­ towards love and affection and Rs.10,000/­ towards funeral expenses and thus, awarded total compensation of Rs.3,98,000/­ and being aggrieved by the same, the insurance Company has preferred this appeal.

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3. Heard Mr. H.G. Mazmudar, learned advocate for the appellant. Though served, no one appears for the other respondents.

4. Mr. H.G. Mazmudar, learned advocate for the appellant has raised a sole ground that the driver of the rickshaw did not possess a valid and effective license and there was no endorsement of transport vehicle in the license possessed by the driver of rickshaw. On the aforesaid ground, it was contended by Mr. Mazmudar, learned advocate for the appellant that the appeal may be allowed and the impugned judgment and award may be quashed and set aside.

5. No other or further submissions, grounds and/or contentions are made by Mr. Mazmudar, learned advocate for the applicant.

6. Upon appreciation of the evidence on record, it appears that the license possessed by the driver of the rickshaw 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:­

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"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

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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."

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

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

8. This Court has also considered the fact that the Tribunal has awarded a sum of Rs.1,10,000/­ as compensation under different conventional heads. However, considering the peculiar facts and upon reappreciation of the evidence on record, the same does not require any alteration, more particularly, to see that the respondents ­ original claimants are awarded just compensation. It deserves to be noted that this view is taken in peculiar facts and circumstances arising out of this appeal to the effect that while considering the income of the deceased at Rs.4,000/­ per month, no prospective income has been granted to the original claimants and considering the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680, as the deceased was 60 years old, 10% future prospects could have been awarded and therefore, this Court deems it fit not to reduce the compensation awarded under the conventional heads as if 10% prospective income is added, the same would not make any difference.

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9. Resultantly, the appeal 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