Arvindbhai Chhaganbhai Padhiyar vs Mohammed Aklim Irshad Ahmadkhan
2022 Latest Caselaw 10089 Guj

     C/FA/2580/2018                               JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                      R/FIRST APPEAL NO. 2580 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                                      Sd/-
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1    Whether Reporters of Local Papers may be allowed                   NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                            NO

3    Whether their Lordships wish to see the fair copy                  NO
     of the judgment ?

4    Whether this case involves a substantial question                  NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                ARVINDBHAI CHHAGANBHAI PADHIYAR
                              Versus
            MOHAMMED AKLIM IRSHAD AHMADKHAN & 2 other(s)
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
NOTICE UNSERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 14/12/2022

                             ORAL JUDGMENT

1. The claimant is in appeal against the judgment and award dated 25th January 2018 passed by the Motor Accident Claims Tribunal (Auxi), Bharuch in MACP No.552 of 2009.

C/FA/2580/2018 JUDGMENT DATED: 14/12/2022

2. The appellant is claiming a compensation to the extent of )3 lakh under different heads for the accidental injuries received by him in an accident which took place on 6 th June 2009. The Tribunal has awarded compensation to the tune of )78,299/- under different heads considering the injuries sustained by the appellant.

3. Learned advocate for the appellant submitted that the Tribunal has committed an error in awarding the compensation amount by disregarding the evidence on record. The Tribunal has passed the order contrary to the settled principles and propositions of law. Learned advocate further submitted that the Tribunal has erred in exonerating the insurance company from the liability to pay the compensation amount, on the ground that the driver of the vehicle was holding a fake driving license, and that the claimant was a third party.

4. Learned advocate for the appellant submitted that the Tribunal has erred in considering the monthly income of the claimant at )2,500/- only. The Tribunal has also erred in considering the disability at 10% body as a whole. Moreover, the Tribunal has manifestly erred in adopting the multiplier of 16 considering the age of the claimant. It is also claimed that an error is committed by the Tribunal in awarding compensation under different heads viz. future prospective rise in income, medical expenses, attendant charges, special diet,

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transportation, actual loss of income, pain, shock & suffering by considering the same on the lower side.

5. Learned advocate for the petitioner lastly submitted that the Tribunal has committed an error in exonerating the Insurance Company from its liability to pay the compensation amount on the ground that the driver of the Tanker was holding a fake driving license. He drew attention of this Court to the decision of the Apex Court in the case of National Insurance Company Limited vs. Swaran Singh, reported in (2004) 3 SCC 297, where the driver was not holding a valid license. The Insurance Company was made to pay the entire compensation and then to recover it from the owner of the vehicle. It is submitted that in the present case also instead of exonerating the Insurance Company from the liability to pay the compensation amount, the same method ought to have been adopted.

6. Learned advocate Mr.Shelat appearing for the Insurance Company has submitted that no error is committed in granting compensation on each count as the Tribunal has taken into consideration the decision laid down by the Apex Court and followed the parameters laid therein while calculating the compensation under each head and applying the parameters like multiplier, etc. and, therefore, no error could be said to have been committed in awarding the compensation.

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7. Learned advocate further submitted that the Tribunal was justified in exonerating the Insurance Company on the ground that the driver of the Tanker did not have the valid and effective driving license on the date of the accident and the same was also evident from the report placed before the Tribunal that the license which was placed on record purportedly being of a driver was a fake license, whereas the original license stood in the name of someone else who is not connected with the accident.

8. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the claim pertains to an accident which involved a Tanker whereby injuries were sustained by the claimant. The Court has gone through the nature of evidence on record and the reasoning given by the Tribunal. The Court has also gone through the parameters applied by the Tribunal under each head and concludes that no error can be found insofar as the finding given by the Tribunal on the nature of the injuries, the monthly income, the multiplier adopted and other parameters like future loss of income, actual loss of income, medical bills, attendance and special diet and non-pecuniary losses is concerned. Therefore, the compensation awarded appears to be justified and need not be interfered with. However, insofar as the liability of the Insurance Company is concerned, the Tribunal has exonerated the Insurance Company from its liability to pay compensation upon finding that the driver of the vehicle was not holding a valid license and, in fact, the license placed on record was fake and fabricated. It would appropriate, therefore, to refer

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to the decision of the Apex Court in the case of Singh Ram vs. Nirmala and others, reported in (2018) 3 SCC 800, wherein under similar set of facts the Apex Court has directed to adopt the principle of pay and recover. In para-5 of the said judgment, the Apex Court has recorded the facts as under :

"Before we advert to the decision in Swaran Singh (supra) a brief reference to the facts as they emerge from the decision of the Tribunal is necessary. Initially before the Tribunal the appellant produced a driving licence issued by the Motor Vehicles Department, Agra (Exh.R-1). The driving licence was found to be fake. The statement of the Senior Assistant in the office of the RTO, Agra was that Exh.R-1 had not been issued by the office. The Tribunal noted that the witness had proved the report (Exh.R-2) issued by the department and concluded that the licence was fake. Faced with this situation, the appellant attempted to prove that he held a valid driving licence issued by the licencing authority at Jagadhri to drive a motor cycle. The Tribunal rejected the application filed by the appellant for producing additional evidence. The Tribunal noted that even otherwise, the licence which was issued by the licencing authority, Jagadhri for a tractor and car was valid only until 29.8.2009. The accident took place on 22.3.2010. The licence was renewed on 28.11.2011 more than two years after it had expired. On these facts, the Tribunal observed that on the date of the accident, the appellant was not holding a valid and effective driving licence nor was there any evidence to indicate that the licence was sought to be

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renewed as required in law, within 30 days of its expiry. The Tribunal also observed that the appellant did not hold a valid licence to drive a motor cycle. On these grounds, the insurer was absolved. The High Court has confirmed the direction of the Tribunal to pay and recover."

9. In view of the aforesaid, the Court deems it fit to adopt the same modality by holding that the award of the Tribunal is hereby confirmed. However, the Insurance Company, i.e. the respondent no.3 herein, shall pay the compensation to the claimant as awarded by the Tribunal and would be entitled to recover the same from the party which is held primarily liable to pay the compensation, i.e. the respondents nos.1 and 2 respectively being the driver and owner of the offending vehicle.

10. The Insurance Company is directed to deposit the entire awarded amount of )78,299/- with interest at the rate of 9% per annum from the date of claim petition till its realization, within a period of six weeks from the date of receipt of copy of this order.

11. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal with accrued interest thereon, if any, to the claimant by account payee cheque after proper verification and after following the due procedure.

12. While making the payment, the Tribunal shall deduct the courts fee, if not paid, in accordance with rules/laws.

C/FA/2580/2018 JUDGMENT DATED: 14/12/2022

13. With the aforesaid, the Appeal stands partly allowed. Records and proceedings be sent back to the concerned Tribunal forthwith.

(A.Y. KOGJE, J.) /MOINUDDIN