Gujarat High Court
National Insurance Company Ltd vs Satyam Harishbhai Marvadi on 21 January, 2021
Bench: R.M.Chhaya
C/FA/1889/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1889 of 2011
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
SATYAM HARISHBHAI MARVADI & 1 other(s)
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR MAHENDRA U VORA(3034) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 21/01/2021
ORAL JUDGMENT
1. Being aggrieved and dissatisfied by the judgment
and award dated 02.04.2011 passed by the Motor
Accident Claims Tribunal(Aux), Ahmedabad
(Rural), in MACP No. 805 of 2004, the Insurance
Company has preferred this appeal under section
C/FA/1889/2011 JUDGMENT
173 of the Motor Vehicles Act, 1988 (hereinafter
referred to as the "Act").
2. The following facts emerge from the record of
the appeal
2.1 That the accident occurred on 06.10.2003
near Mahalaxmi Char Rasta, Paldi, Ahmedabad
City. As per the record, it is the case of
the claimant that he was travelling in
rickshaw bearing registration No. GJ1XX3415
from Geeta Mandir to his house and when the
rickshaw was passing near Mahalaxmi Char
Rasta, the driver of the rickshaw lost control
over the steering and the rickshaw turned
turtle because of which the respondent
original claimant sustained serious injuries.
2.2 As can be seen from the record, the
original claimant was admitted to V.S.
Hospital for treatment as he had sustained
fracture on his left leg. The FIR came to be
lodged and the respondentclaimant filed
present claim petition under section 166 of
the Act and claimed compensation of Rs.
4,00,000/.
2.3 The respondentclaimant was examined at
exhibit 17 and the respondentclaimant also
relied upon the documentary evidence such as
FIR at exhibit 19, panchnama of the place of
incident at exhibit 20. The Insurance Company
C/FA/1889/2011 JUDGMENT
also filed its written arguments at exhibit
42. It was the case of the original claimant
that he was aged 23 years old on the date of
the accident and was engaged in the business
of cloths and was earning Rs. 4,500/ per
month. The Tribunal determined the income of
the deceased at Rs. 2,500/ per month as no
evidence was produced and as per the purshis
at exhibit 24, disability of the body as a
whole was determined at 12% and applying
multiplier of 17, an amount of Rs. 61,200/
was awarded under the head of Future Economic
Loss. Similarly, considering the evidence in
form of disability certificate Exhibits 23 and
24, the Tribunal awarded Rs.12,000/ under the
head of pain, shock and suffering and Rs.
29,000/ as medical expenses and Rs. 7,500/
under the head of actual loss of income and
Rs. 8,000/ under the head of special diet,
attendant and transportation charges. The
Tribunal in all awarded compensation of
Rs.1,17,700/ with interest at the rate of
7.5% per annum. Being aggrieved by the same,
the present appeal is preferred by the
Insurance Company.
3. Heard Mr. Maulik Shelat, learned advocate for
the appellant and Mr. Mahendra U. Vora, learned
advocate for respondent no.1original claimant.
Though served, no on appears for respondent
no.2.
C/FA/1889/2011 JUDGMENT
4. Mr. Maulik Shelat, learned advocate appearing
for the appellant contended that the rickshaw
driver was not holding a valid and effective
driving license. Relying upon the deposition of
the Transport Officer at Exhibit 38, it was
contended by Mr. Shelat that the driver of the
rickshaw was not holding license to drive
transport vehicle at the time of accident and
relying upon the judgment of the apex Court in
the case of The New India Assurance Co. Ltd. Vs.
Roshanben Rahemansha Fakir and Ors. reported in
2008(8) SCC 253 and the National Insurance Co.
Ltd. vs. Kusum Rai reported in 2006(4) SCC 250,
it was contended that the appellant insurance
company deserves to be exonerated. Mr. Shelat
further contended that even as per the evidence
on record, the driver of rickshaw had learner
license and therefore, he was not authorised to
carry any passenger in the rickshaw. On the
aforesaid grounds, Mr. Shelat contended that the
insurance company deserves to be exonerated by
allowing this appeal.
5. Per contra, Mr. Mahendra Vora, learned advocate
for the respondent no.1original claimant
supported the impugned judgment and award and
has submitted that the appeal is meritless and
the same deserves to be quashed and set aside.
6. No other or further submissions have been made
by the learned advocate appearing for the
parties.
C/FA/1889/2011 JUDGMENT
7. I have perused the original Record and
Proceedings.
8. As far as the first contention of Mr. Shelat is
concerned, the said issue is covered by the
judgment of the Apex Court in the case of Mukund
Dewangan vs. Oriental Insurance Co. Ltd.
reported in 2017(14) SCC 663 and therefore, the
same is negatived.
9. However, the question remains that as per Rule 3
of the Central Motor Vehicle Rules, 1989, the
driver having learner license cannot carter
passengers. However, the fact remains that
valid policy was there and considering the
principles laid down by the Apex Court in the
case of National Insurance Co. Ltd. Vs. Swaran
Singh and Ors. reported in 2004(3) SCC 297, in
the case of Amrit Paul Singh and Anr. vs. TATA
AIG General Insurance Co. Ltd. and Ors. reported
in 2018 (7) SCC 558, in the case of Kempaiah and
Ors. vs. S.S. Murthy and Anr. Reported in 2018
(12) SCC 706 and in the case of Anu Bhanvara Vs.
IFFCO Tokio General Insurance Co. Ltd. reported
in 2019 SCC Online SC 1006, the insurance
company is not liable to indemnify the
respondentoriginal claimant. However,
following the ratio laid down by the Apex Court
in the aforesaid judgments, the appellant
insurance company shall be liable to pay the
awarded compensation to the claimant and the
C/FA/1889/2011 JUDGMENT
appellant insurance company shall have the right
to realise/recover the said amount of
compensation from the driver and owner of the
vehicle involved in the accident by way of
resorting to appropriate legal remedies
available in law. The appeal is allowed to the
aforesaid extent. The impugned award stands
modified. No costs. Record and proceedings be
transmitted back to the Tribunal forthwith.
(R.M.CHHAYA, J)
BIJOY B. PILLAI
