National Insurance Company Ltd. vs Savitaben Manubhai Dantani
2021 Latest Caselaw 3181 Guj

          C/FA/3060/2017                                        JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 3060 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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                   NATIONAL INSURANCE COMPANY LTD.
                                 Versus
                 SAVITABEN MANUBHAI DANTANI & 1 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
HCLS COMMITTEE(4998) for the Defendant(s) No. 1
MR JB DASTOOR(239) for the Defendant(s) No. 1
MRS NISHA M PARIKH(2397) for the Defendant(s) No. 1
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 by and dissatisfied by the judgment and award dated 28.10.2016 passed by

C/FA/3060/2017 JUDGMENT

the Motor Accident Claims Tribunal (Aux.), Gandhinagar in MACP No.568/02, 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 1.2.2002 at about 09:00 a.m. It is the case of the respondent ­ original claimant that the respondent no.1 - Savitaben was traveling in a commercial vehicle being rickshaw bearing registration no. GJ­1 VV­1104. As the said rickshaw turned turtle, respondent no.1 ­ original claimant sustained serious injuries. A claim petition under Section 166 of the Act came to be filed by the respondent no.1 ­ original claimant and claimed compensation of Rs.1,50,000/­. The Tribunal assessed the disability of the respondent no.1 at 9% of the body as a whole. Relying upon the purshis at Exh.42, the Tribunal assessed the monthly income of the respondent no.1 at Rs.2,500/­ per month and applying appropriate multiplier of 17, awarded a sum of Rs.46,000/­ under the head of future loss of income, Rs.35,600/­ towards medical charges, Rs.20,000/­ under the head of pain, shock and suffering, Rs.7,500/­ towards actual

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loss of income for 3 months, Rs.7,500/­ under the head of special diet, transportation and attendant charges and thus, awarded total compensation of Rs.1,16,600/­ with interest at the rate of 9% 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 under Section 173 of the Motor Vehicles Act, 1988.

3. Heard Mr. H.G. Mazmudar, learned advocate for the appellant, Mrs. Nisha M. Parikh, learned advocate for respondent no.1. Though served, no one appears for respondent no.2. I have also perused copies of the relevant evidence produced by Mr. Mazmudar for perusal of this Court.

4. Mr. H.G. Mazmudar, learned advocate for the appellant has contended that the driver of the rickshaw involved in the accident did not have a valid and effective license. It was contended that though the driver was driving commercial vehicle, he did not have any authority or license to drive the transport vehicle and under such circumstances, the appellant ­ insurance Company deserves to be exonerated. On the aforesaid grounds, Mr. Mazmudar, learned advocate for the appellant

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contended that the impugned judgment and award deserves to be modified and the appeal may be allowed by exonerating the appellant­insurance Company.

5. Per contra, Mrs. Nisha Parikh, learned advocate for the respondent no.1 has supported the impugned judgment and award. Mrs. Parikh has relied upon the observations made by the Tribunal, more particularly, in Paragraphs 18 and 19 of the impugned judgment and award. It was contended that the driver of the rickshaw did possess a valid and effective license for Light Motor Vehicle and only because endorsement of transport vehicle is not found in the license of the driver of the rickshaw, the appellant ­ insurance Company cannot disown itself from the liability to indemnify the claimant as a third party. Mrs. Parikh therefore submitted that the appeal, being merit­less, deserves to be dismissed.

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

7. Considering the sole ground raised by Mr. Mazmudar, learned advocate for the appellant and upon appreciation of the evidence on

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record, the record shows that the policy was in force. Even considering the evidence of Mr. Jigar Mahendrabhai Patel at Exh.35, it appears that there was no endorsement in the license that the driver of the rickshaw was authorized to drive commercial vehicle, but the very evidence shows that the driver of the rickshaw had a license. 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

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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 the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor

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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, the license for Light Motor Vehicle was subsisting on the date of the accident and only because an endorsement of transport vehicle was not found, the appellant ­ insurance Company cannot be exonerated. Following the ratio laid down by the Hon'ble Apex Court in the case of Mukund Dewangan (supra), the contention raised by Mr. Mazmudar, learned advocate for the appellant deserves to be negatived.

9. Resultantly, the appeal therefore fails and is hereby dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA, J) MRP