Gujarat High Court
New India Assurance Co. Ltd. vs Padmaben W-O Gumansing Bodhabhai ... on 24 February, 2021
Bench: R.M.Chhaya
C/FA/2167/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2167 of 2014
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
PADMABEN W-O GUMANSING BODHABHAI CHAUDHARI & 5 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(64) for the Defendant(s) No. 1,2,3,4,5,6
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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 24.2.2014 passed by
the Motor Accident Claims Tribunal, Tapi and
C/FA/2167/2014 JUDGMENT
Vyara in MACP No.5/09, 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 12.11.2008. It
is the case of the original claimants that the
deceased - Bakul was traveling on his
motorcycle bearing registration no. GJ19 P
7267. Record indicates that the said
motorcycle met with head on collusion with
tractor bearing registration no. GJ19 B3587
with attached trolley bearing registration no.
GJ19 T7536. The deceased - Bakul succumbed
to the injuries received in the said accident.
An FIR was lodged and the respondents
original claimants preferred a claim petition
under Section 166 of the Act and claimed
compensation of Rs.3,00,000/. The Tribunal,
after appreciation of the evidence on record,
both oral and documentary and more
particularly, driving licence of the driver of
the tractor at Exh.48, R.C. Book Exh.49,
insurance policy Exh.42, deposition of the
witness of RTO Clerk Exh.46, complaint Exh.33,
Panchama of the scene of accident Exh.34,
inquest Panchnama Exh.35, postmortem report of
C/FA/2167/2014 JUDGMENT
the deceased at Exh.36, R.C. Book of the
tractor Exh.37, village form no.7/12 of the
claimants Exh.38, was pleased to partly allow
the claim petition and awarded a sum of
Rs.2,82,000/ as total compensation along with
the interest at the rate of 8% per annum 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. 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 Tribunal has
misread the evidence of the RTO Clerk at
Exh.46. Relying upon the copy of the driving
license of the driver of the tractor at
Exh.48, it was contended that the driver did
not possess a valid and effective driving
license and as such there was no endorsement
to drive the transport vehicle. It was further
contended that the Tribunal has not considered
the evidence that the tractor attached with
trolley was for commercial purpose and on both
grounds, it was submitted that the insurance
Company is not liable to indemnify and
therefore, Mr. Mazmudar contended that the
C/FA/2167/2014 JUDGMENT
appeal may be allowed and the insurance
Company may be exonerated.
5. No other or further submissions, grounds
and/or contentions are made by the learned
advocates appearing for the respective
parties.
6. The first contention raised by Mr. Mazmudar,
learned advocate for the appellant to the
effect that the license of the driver of the
tractor at Exh.48 has no endorsement of a
transport vehicle and therefore, the driver of
the tractortrolley was not authorized to
drive tractor. 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
C/FA/2167/2014 JUDGMENT
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
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
C/FA/2167/2014 JUDGMENT
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 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.
8. As far as the second contention is concerned,
there is no evidence except bare words and
upon reappreciation of the evidence on record,
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it clearly transpires that the appellant has
not been able to prove the same and therefore,
even the second contention fails.
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
