Gujarat High Court
United India Insurance Company ... vs Sureshbhai Mansukhbhai Chavda on 7 October, 2021
Bench: A.G.Uraizee
C/FA/863/2019 ORDER DATED: 07/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 863 of 2019
With
R/CROSS OBJECTION NO. 67 of 2021
In
FIRST APPEAL NO. 863 of 2019
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UNITED INDIA INSURANCE COMPANY LTD
Versus
SURESHBHAI MANSUKHBHAI CHAVDA
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
for the Defendant(s) No. 2,3
NISHIT A BHALODI(9597) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 07/10/2021
ORAL ORDER
1. The appeal and the Cross Objection arise from the
selfsame judgment and award of the tribunal. They are,
therefore, disposed of by this common judgment.
2. The Insurance Company has preferred the appeal
under Section 173 of the Motor Vehicles Act, 1988 ('M.V.
Act' for short) to assail the judgment and award dated
04.10.2018 passed by MACT (Main), Morbi in MACP
No.120/2012 whereas the claimants had preferred the
Cross Objection for enhancement of the compensation.
3. The Cross Objections are admitted. Mr. Maulik J.
Shelat, learned advocate for the Insurance Company waives
service of notice of admission. Presence of respondent is
not necessary for the purpose of disposal of the appeal as
well as the Cross Objection.
4. The facts giving rise to the present appeal and cross
objection are that the claimant was riding motorcycle as a
pillion rider. The motorcycle was being plied by
C/FA/863/2019 ORDER DATED: 07/10/2021
Jayeshbhai-respondent No.3 herein on 12.2.2011, the
motorcycle met with an accident with a truck bearing
registration No. GJ-12-T-5172 which was of the ownership
of respondent No.2 herein the truck was insured with the
appellant - Insurance Company. In the accident, claimants
suffered serious bodily injuries. He, therefore, filed Claim
Petition being MACP No.120/2012 in the MACT, Morbi
against the owners of both the vehicles and Insurance
Company of the Truck to recover a sum of Rs.5,00,000/-
as compensation under Section 166 of the M.V. Act.
5. The Insurance Company resisted the claim petition
inter alia disown its liability to pay compensation on the
ground that the respondent No.2 herein was driving HGV
insured vehicle. He was holding license to drive
LMV/MCWG.
6. The tribunal after considering ocular and
documentary evidence partly allowed the claim petition
and directed the appellant - Insurance Company and
respondent No.2 herein to pay the compensation along-
with interest and costs jointly and severely to the
claimant.
7. Insurance Company is aggrieved by the fastening of
liability of compensation on its while the claimant is not
happy with the quantum of compensation. Therefore, the
appeal and the cross objection.
8. Mr. Shelat, learned advocate for the Insurance
Company submits that the driver of the offending vehicle
was not not holding valid license to drive a tanker which
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is HGV type vehicle. Relying upon the decision of the
Supreme Court in the case of Oriental Insurance Co.
Limited v. Jahrul Zaharulnisha and others reported in 2008
(12) SCC 385 to submit that the liability of payment of
compensation could not have been saddled on the
Insurance Company on account of absence of valid driving
license by the respondent No.2. He, therefore, urges that
the matter may be remanded to the tribunal for fresh
consideration. He further submits that the tribunal has not
recorded any reasons on the submission of the Insurance
Company regarding non holding of valid license by the
respondent No.2 for driving the offending tanker. He,
therefore, urges that the matter may be remanded to the
tribunal for fresh consideration so far as the liability of the
Insurance Company to pay compensation is concerned.
9. Mr. Bhalodi, learned advocate for the claimant
submits that the tribunal has committed an error in
assessing the proper monthly income of the claimant. He
further submits that the tribunal has assessed 28%
disability body as a whole though the claimant has
suffered 100% disability. It is his further submission that
the tribunal has also not considered future economic loss
in view of the decision of the Supreme Court in the case
of Saiyad Sadiq (supra). He submits that considering the
injury suffered by the claimant, the compensation awarded
under the head of pain shock and suffering also very lower
side in view of the Supreme Court in the case of Govind
Yadav (supra) in SLP (C) No.30556/2019. He further
submits that compensation awarded under the head of loss
of amenities, special diet, attending charges and
consortium is also on very lower side. He would also
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content that the tribunal has not awarded any
compensation under the head of future medical expenses.
He, therefore, submits that he has no objection if the
matter is remanded to the tribunal with a direction to
consider the submissions of claimant on the ground of
quantum of compensation as well. He also submits that the
tribunal may be directed to decide the matter within
reasonable time as the year of accident is 2011.
10. I have considered the submissions of learned
advocates for the parties. I have also perused the
impugned judgment and award of the tribunal.
11. Considering the rival submissions, I am of the opinion
that the submission of learned advocates for the parties to
remand the matter for fresh consideration on the question
of liability of the Insurance Company to pay the
compensation in view of the driver of the vehicle insured
was not holding proper license in light of the decision of
the Supreme Court in the case of Zahrulnisha (supra) and
to consider the question of quantum of compensation after
affording opportunity of hearing to the learned advocates
for the parties.
12. In view of above, the appeal as well as the cross
objection are allowed. The matter is remanded to the
tribunal for fresh consideration to decide the liability of
the Insurance Company to pay the compensation as well as
quantum of compensation in light of observation made in
hereinabove. The tribunal is directed to finally dispose of
the matter on or before 30th April, 2022.
C/FA/863/2019 ORDER DATED: 07/10/2021
13. It is clarified that this Court has not expressed any
opinion on the question of liability of the Insurance
Company in view of non holding of valid license by the
driver of the vehicle and also quantum of compensation
which should be awarded to the claimants. The tribunal is
directed to decide the two issues i.e. driving license and
liability of Insurance Company as well as quantum of
compensation without being influenced by this order
independently in accordance with law.
14. Record and Proceedings summoned, is ordered to be
remitted to the tribunal forthwith.
(A.G.URAIZEE, J)
Manoj
