Gujarat High Court
Mahmad Rafik Munnebhai Ansari vs Gujarat State Road Transport ... on 22 October, 2021
Bench: Mauna M. Bhatt
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 801 of 2021
In
R/FIRST APPEAL NO. 3173 of 2021
With
R/FIRST APPEAL NO. 3173 of 2021
With
R/FIRST APPEAL NO. 3849 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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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MAHMAD RAFIK MUNNEBHAI ANSARI
Versus
GUJARAT STATE ROAD TRANSPORT CORPORATION
==========================================================
Appearance:
MR. HEMAL SHAH(6960) for the Applicant(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
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C/CA/801/2021 JUDGMENT DATED: 22/10/2021
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 22/10/2021
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
KUMAR)
Oral order in CIVIL APPLICATION (for condonation of
delay) No. 801 of 2021
1. This application under section 5 of the Limitation
Act is filed seeking condonation of delay of 690 days in filing
the appeal. The cause shown for the delay is traceable to
paragraph 6 of the application.
2. We have heard learned advocates appearing for the
parties.
3. In this application, it is stated that against the
judgment and award dated 15.07.2017, a Review Application
was filed which came to be rejected on 17.07.2019, and
immediately on dismissal of the said review application, within
one month, the appeal has been filed. Merely because the
applicant was pursuing his remedy under the review
jurisdiction, by itself would not be a good ground to accept the
cause for delay, however, on account of the applicant
prosecuting the cause before the jurisdictional tribunal, the
cause shown for the delay deserves to be accepted subject to
applicant being put on terms. Hence, we hold that applicant -
appellant would not be entitled for the interest for the delay
period, in the event of applicant - appellant succeeding in the
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
appeal since first respondent which is a Government
Corporation and third respondent which is an Insurance
Company, cannot be fastened with liability to pay interest for
no fault of theirs. Hence, to balance the equities, it would
suffice to allow the application by holding that applicant -
appellant would not be entitled to interest for the delay period.
4. Accordingly, Civil Application No. 801 of 2021 is
ALLOWED. Delay in filing the first appeal is condoned subject
to the condition that in the event of appellant succeeding in
the First Appeal No. 3173 of 2021, he would not be entitled to
the interest on the enhanced compensation for the delay
period.
Oral order in FIRST APPEAL NO. 3173 of 2021 and FIRST
APPEAL NO. 3849 of 2017
1. The appellant who is the claimant before the
Tribunal, has presented First Appeal No. 3173 of 2021 and the
insurer of motorcycle bearing Registration No. GJ-3-RR-4554
has filed First Appeal No. 3849 of 2017 challenging the
correctness and legality of the judgment and award passed by
the Motor Accident Claims Tribunal (Special) at Rajkot in MACP
No. 544 of 2009 dated 15.07.2017, whereunder the claim
petition filed by the claimant under section 166 of the M.V. Act,
1988 has been allowed in part and compensation of Rs.
13,23,700/- with interest 9% per annum from the date of claim
petition till realisation has been allowed and respondents Nos.
1 to 3 before the Tribunal have been directed to indemnify the
award jointly and severally.
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
2. The facts in brief which has led the appellants to
present these Appeals are as under.
3. A claim petition came to be filed by the claimant
initially seeking for compensation of Rs.4 lacs and later sought
for compensation of Rs.44 lacs contending inter alia that on
22.02.2009 at about 5:00 p.m., while he was travelling as a
pillion rider on a motorcycle bearing registration No.GJ-3-RR-
4554, they had reached the bungalow of Municipal
Commissioner at Sadar Bazar at Rajkot, and at that time,
driver of the State Transport Corporation bus bearing
registration No. GJ-18-V-2491 came in excessive speed, driving
the said vehicle in a rash and negligent manner, endangering
human life and dashed against the motorcycle, and as a result
of which the claimant sustained injuries. The respondents
being notified of the claim petition, insurer of both the vehicles
appeared and filed their statement of objections denying the
averments made in the claim petition except to the extent
expressly admitted thereunder. On the basis of the pleadings
of the parties, issues came to be framed by the Tribunal as
under : -
"1. Whether it is proved that the claimant
sustained injuries on account of rashness or
negligence in driving on the part of the
drivers of the vehicle involved in the
accident ?
2. What amount, if any, the claimants are
entitled to by way of compensation and from
which of the opponents ?
3. What order ?"
4. In order to substantiate his claim, claimant got
himself examined and also examined a witness by namely Dr.
Nimish P. Trivedi and in all produced 62 documents as per Exh.
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
1 to 60. The insurer of the motorcycle filed his affidavit in lieu
of examination in-chief and got marked three documents Exh.
66, 67 and 73. After considering the arguments advanced by
the learned advocates appearing for the parties, Tribunal as
noticed hereinabove awarded a total compensation of
Rs.13,23,700/- and the break up of it is as under : -
Rs. 9,18,000/- Future loss of income
Rs. 75,000/- Pain, shock and suffering
Rs. 75,000/- Special diet, attendance and
transportation
Rs. 1,55,700/- Medical Expenses
Rs. 1,00,000/- Loss of marriage prospectus, loss of
amenities and loss of enjoyment of life.
_____________
Rs.13,23,700/- Total compensation
Hence, these two appeals.
5. We heard heard Mr. Vibhuti Nanavati, learned
advocate appearing for the insurer of the motorcycle, Mr.
Devang Bhatt, learned advocate appearing for Mr.H.S.
Munshaw for the Gujarat Transport Corporation and Mr. Hemal
Shah, learned advocate for the claimant.
6. The sum and substance of the contentions raised by
the learned advocates for the insurer and the Transport
Corporation is that Tribunal committed an error in arriving at a
conclusion that though driver of the motorcycle did not
possess the driving license it has been held that burden was
cast on the insurer and the Transport Corporation to prove that
the driver was disqualified from holding a driving license and
as such fastening the liability on them was erroneous. It is also
contended that finding recorded by Tribunal with regard to
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
composite negligence is contrary to the evidence available on
record and it is submitted that driver of the motorcycle himself
was injured, had also filed a claim petition in which the insurer
of the motorcycle was deleted and now Tribunal by the
impugned judgment and award has also held that insurer of
the motorcycle would also be liable to indemnify the award
jointly and severally along with the Transport Corporation and
to that extent, the learned advocate Mr.Nanavaty appearing
for the appellant - insurer would contend that award passed by
the Tribunal is liable to be set aside.
7. Mr. Devang Bhatt, learned advocate appearing for
the Transport Corporation though has not filed appeal, has
contended that no liability can be fastened on the Corporation,
inasmuch as, accident had occurred on account of the
negligence of the driver of the motorcycle and 100% liability is
to be fastened on the driver of the motorcycle and accordingly,
the award requires to be modified. He would also submit that
compensation awarded by the Tribunal itself is exorbitant and
excessive.
8. Per contra, learned advocate Mr. Hemal Shah
appearing for the claimant would not only support the
judgment and award passed by the Tribunal, insofar as
fastening the liability on the insurer of the motorcycle as well
as transport corporation whereunder the composite negligence
has been held as proved and to the extent of quantum
awarded by the tribunal, he would submit that tribunal
committed a serious error in not considering the actual income
or the reasonable income that the claimant was drawing /
earning as on the date of accident i.e. on 22.02.2009 and a
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
sum of Rs. 4,500/- is taken which is abysmally on lower side.
He would also submit that the quantum of compensation
awarded under all heads requires to be enhanced. Hence, he
prays for allowing the appeal filed by the claimant.
9. Having heard the learned advocates appearing for
the parties and on perusal of papers placed before the Court,
we are of the considered view that following points would arise
for consideration : -
(1) whether Tribunal was correct in arriving at a
conclusion that burden cast on the insurer to
prove that driver of the motorcycle was
possessing valid driving license had not been
discharged;
(2) whether compensation awarded by the
Tribunal is just and reasonable or it requires to
be modified ? and if so, to what extent ;
10. Before answering the points formulated
hereinabove, it requires to be noted that there is no dispute
with regard to the fact of accident in question having occurred
on 22.02.2009 as a result of which claimant sustained injuries.
It is also not in dispute that on account of the two vehicles
involved namely the motorcycle and the bus, the accident
having occurred. Hence, we do not propose to repeat those
facts which have already been discussed by the Tribunal.
11. Tribunal while answering the issue regarding liability,
has held that insurer of the motorcycle had failed to prove that
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
driver of the motorcycle was not holding valid and effective
driving license at the time of the accident. It has also been
further held that in the light of the driving license produced at
Exh. 43 and 67 which was for the period from 26.06.2009 to
25.06.2009 that driver of the motorcycle was not disqualified
for obtaining such driving license. The defence which is
available to the insurer to stave off the liability to be fastened
on it by virtue of the insurance policy taken on the motorcycle
is traceable to section 149(2)(a)(ii) of Motor Vehicle Act, 1988,
which mandates that driver of the offending vehicle is required
to have effective and valid driving license as on the date of the
accident. The Hon'ble Apex Court in the case of National
Insurance Co. Ltd. versus Swaran Singh and Others
reported in 2004(1) GLH 691, has held to the following
effect : -
"WHEN ADMITTEDLY NO LICENCE WAS
OBTAINED BY A DRIVER:
82. We have analysed the relevant provisions of
the said Act in terms whereof a motor vehicle
must be driven by a person having a driving
licence. The owner of a motor vehicle in terms of
Section 5 of the Act has a responsibility to see
that no vehicle is driven except by a person who
does not satisfy the provisions of Section 3 or 4
of the Act. In a case, therefore, where the driver
of the vehicle admittedly did not hold any licence
and the same was allowed consciously to be
driven by the owner of the vehicle by such
person, the insurer is entitled to succeed in its
defence and avoid liability. The matter, however,
may be different where a disputed question of
fact arises as to whether the driver had a valid
licence or where the owner of the vehicle
committed a breach of the terms of the contract
of insurance as also the provisions of the Act by
consciously allowing any person to drive a
vehicle who did not have a valid driving licence.
In a given case, the driver of the vehicle may not
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
have any hand at all, e.g. a case where an
accident takes place owing to a mechanical fault
or vis-major.
83. In V. Mepherson v. Shiv Charan Singh [1998
ACJ 601 (Del.)] the owner of the vehicle was held
not to be guilty of violating the condition of
policy by willfully permitting his son to drive the
car who had no driving licence at the time of
accident. In that case, it was held that the owner
and insurer both were jointly and severally liable.
84. In New India Assurance Co. Ltd. vs.
Jagtar Singh and Others, [1998 ACJ 1074],
Hon'ble M. Srinivasan, CJ, as His Lordship then
was, dealing with the case where a duly licensed
driver was driving a vehicle but there was a
dispute as to who was driving the vehicle. In that
case the court referred to the judgment in
Kashiram Yadav vs. Oriental Fire & General
Insurance Co. Ltd. [1989 ACJ 1078 (SC)] and
expressed its agreement with the views taken
therein.
85. In National Insurance Co. Ltd. vs. Ishroo
Devi and Others, [1999 ACJ 615] where there was
no evidence that the society which employed the
driver was having knowledge that the driver was
not holding a valid licence, it was held the
insurance company is liable. The court relied
upon the decisions of this Court in Kashiram
Yadav's case (supra), Skandia's case (supra) and
Sohan Lal Passi's case (supra)."
12. Thus, insurer would be entitled to raise a defense
that driver of the offending vehicle was not possessing a valid
driving license at the time of the accident and as such it is not
entitled to indemnify the claim. If it is to be construed that
burden was on the insurance company to prove that owner of
the vehicle had consciously allowed the driver of the vehicle
whom he knew, did not possess driving license, then in such
circumstances also insurer would not be required to indemnify
the award. In the instant case, said situation would not arise,
inasmuch as, the owner of the vehicle who was arraigned as
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
respondent No. 2, did not appear before the Tribunal and did
not contest the matter. As such, burden had shifted on the
insurance company. Only on initial burden cast on the insured
namely the owner of the vehicle was discharged, it would have
shifted to the claimant to dispense the same. The said exercise
having not been done and undisputedly Exh. 43 and 67, the
driving license which was produced by the claimant disclosing
that driver of the motorcycle was possessing the driving
licence which was effective from 26.06.2009 onwards, and he
did not possess the driving license as on the date of accident
i.e. 22.02.2009, it cannot be gainsaid by the claimant that
insurer was required to indemnify the claim. It is not the case
of the claimant that either the driver of the motorcycle was
possessing a learner license or the said driving license which
had been issued, had expired. In that view of the matter, the
contention raised by the learned counsel appearing for the
claimant, cannot be accepted and it stands rejected. In the
facts obtained in the present case clearly disclosing that driver
of the offending vehicle namely driver of the motorcycle was
not possessing the driving license as on the date of accident,
insurer of the motorcycle cannot be made to indemnify the
claim. However, we make it clear that the claimant would be at
liberty to proceed against owner of the said vehicle for
recovering the compensation. Hence, point no. 1 is answered
in favour of the insurer and held that insurer of motorcycle had
proved that driver of the motorcycle did not possess valid
driving licence as on date of accident.
13. It requires to be noted that Tribunal has awarded the
compensation of Rs. 13,23,700/- under various heads as
already noticed hereinabove. However, the claimant who is
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
assailing the said award as being on the lower side, on being
examined, we are of the considered view that it merits
acceptance partially. The Tribunal while assessing loss of
future income, has completely ignored the documentary
evidence which was available on record namely Exh. P-56
which is the certificate issued by Agra University certifying that
claimant is a holder of Master Degree in Arts. It is the specific
case of the claimant as deposed before the Tribunal that he is
a Glass Designer and Tribunal committed a serious error in
construing his income at Rs.4,500/- per month as against claim
of Rs.10,000/- per month and the income construed by the
tribunal is on the lower side and which is also abysmally on the
lessor side. Hence, he prayed for enhancement of
compensation.
14. The accident in question having occurred in the year
2009 and claimant having engaged himself in occupation of
Glass Designer, it cannot be construed that his income was
around Rs.4,500/- per month by treating him on par with a
Coolie or a Hamali. As such, we are of the considered view
that the income for the purposes of computation of
compensation under the head of future loss of income
deserves to be construed as Rs.9,000/- per month.
15. The compensation that has been awarded towards
pain and suffering is partially on the lower side. The claimant
having been admitted to a hospital and being an impatient for
a month and having suffered crush injury on head and
subarodinoid hemorrhage with cerebral oedma, the pain and
suffering which the claimant had undergone, is much more and
as such reasonable compensation deserves to be awarded
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
under this heading. In fact Tribunal has noticed that Dr.
Trivedi was examined on behalf of claimant as per affidavit
Exh. 34 and said doctor had treated the claimant as an indoor
patient from 23.02.2009 to 20.03.2009. He has clearly
deposed about the nature of injuries sustained by the claimant
and finding recorded by the Tribunal in this regard is to the
following effect : -
"18. ......... He has stated that claimant
received crush injury on head and
subarodinoid hemorrhage. Rt.parietal
region with cerebral oedma on detailed
evaluation of injury, contusions in right
middle cerebral peduncle, pons, mid-
brain, selenium of corpus callosum
towards right side and other
injuries................"
16. Thus, the compensation towards pain and suffering
requires to be marginally enhanced by awarding additional
sum of Rs. 25,000/-. Tribunal has awarded Rs.75,000/- towards
special diet, attendance and transportation and Rs. 1,55,700/-
towards medical expenses, which is in consonance with the
nature of injuries sustained and number of days of
hospitalization and same would not call for interference.
However, for loss of marriage prospectus and loss of
amenities, which has been combined and a compensation of
Rs. 1,00,000/- is awarded, is also on the lower side. Tribunal
having noticed that claimant is a young man aged about 27
years and now on account of 100% disability, he would not be
able to function normally and there is 100% reduction in his
income, just a reasonable compensation under these two
heads is to be awarded by awarding additional Rs.50,000/-
each and accordingly we do so. Thus, the claimant would be
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
entitled for total compensation under the following heads in
substitution to what has been awarded by the Tribunal : -
(i) future loss of income - 4,500 x 40% = 1,800/-
4,500 + 1,800 = 6,300/-
6,300 x 12 x 17 =
12,85,000/-
(ii) pain shock and suffering 1,00,000/-
(iii) special diet, attendance
and transportation 75,000/-
(iv) medical expenses 1,55,700/-
(v) loss of amenities 1,00,000/-
(vi) loss of marriage prospectus 1,00,000/-
___________
Total 18,15,700/-
Accordingly, point no. 2 is answered partly in favour of
the appellant in the First Appeal No. 3173 of 2021.
17. For the reasons aforestated, we proceed to pass
following
ORDER
(i) The First Appeal No. 3849 of 2017 is allowed and
First Appeal No. 3173 of 2021 is allowed in-part.
(ii) Judgment and award passed by the Tribunal in
MACP No. 544 of 2009 dated 15.07.2017, insofar as
fastening the composite liability on the insurer of
the motorcycle is set aside. It is made clear that
that claimant would be entitled to recover the
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
compensation jointly and severally from respondent
No. 1 (Gujarat State Road Transport Corporation)
and respondent No. 2 (Vipul Meghjibhai Ghelani -
owner of the motorcycle) which liability is joint and
several and in substitution to the compensation
awarded by the Tribunal, a sum of Rs.18,15,700/- is
awarded with interest @ 9% per annum from the
date of petition till date of deposit or payment
whichever is earlier excluding interest for 690 days
on the enhanced compensation. The appellant in
First Appeal No. 3849 of 2017 would be at liberty to
withdraw the amount with accrued interest which is
said to have been deposited before the Tribunal by
filing appropriate application.
18. It is noticed by this Court that the First Appeal No.
3849 of 2017, having been admitted on 28.11.2017, resulted
in the Registry calling for records from the jurisdictional
tribunal on 08.12.2017, yet till date records have not come.
However, learned advocates for the parties have made
available the pleadings and exhibits for our perusal, and as
such, the appeal was taken up for final disposal. However,
very intriguing factor which is noticed is that even after four
years, when the Registry of this Court has called for record and
proceedings from the trial court I.e. jurisdictional tribunal, for
reasons best known it has not been transmitted to this Court or
it has not reached this Court till date. This practice requires to
be deprecated and accordingly we deprecate and direct the
Registrar General to issue a circular that within 30 days from
the date of the communication received by the trial court or
the jurisdictional MACT as the case may be, records should be
C/CA/801/2021 JUDGMENT DATED: 22/10/2021
despatched by such Courts and the Registrars of the
respective District Courts should ensure such despatch is made
on time and any failure on the part of the official/s of the
Registry will be viewed seriously.
(ARAVIND KUMAR,CJ)
(MAUNA M. BHATT,J)
AMAR SINGH
