Gujarat High Court

New India Assurance Co. Ltd vs Shamalbhai Kantibhai Vasava on 7 January, 2022

Bench: Sandeep N. Bhatt

     C/FA/1558/2013                               ORDER DATED: 07/01/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1558 of 2013

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                   NEW INDIA ASSURANCE CO. LTD.
                               Versus
               SHAMALBHAI KANTIBHAI VASAVA & 5 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 3,4,5,6
RULE SERVED(64) for the Defendant(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 07/01/2022

                               ORAL ORDER

1. The present First Appeal is preferred under section 173 of

the Motor Vehicles Act by the New India Assurance Company

Ltd. against the judgment and order dated 11.03.2013 passed

in Motor Accident Claim Petition No. 819 of 2007 by the Motor

Accident Claims Tribunal (Aux.), Vadodara, by which the

Tribunal has awarded Rs.7,22,125/- with interest @ 9% p.a. to

the claimants. The present appeal is filed on main ground that

the driver of the passenger carrying rickshaw was not holding

a valid and effective driving license.

2. The brief facts of the case are stated herein under for

ready reference:-

       C/FA/1558/2013                        ORDER DATED: 07/01/2022



2.1    On 29.05.2007, the deceased Fakirbhai Devipujak was

going to Sardar Market to purchase vegetables and raw

mangoes for his business purpose. When he reached Suresh

Body Works on National Highway Road which is going towards

Ahmedabad from Vadodara, the rickshaw turned turtle due to

loss of balance of the steering and the deceased got grievous

injuries on his chest and legs and latter succumbed to his

injuries during the treatment in the hospital.

2.2 Thereafter, the heirs of the deceased Fakirbhai Devipujak

filed the claim petition being Motor Accident Claim Petition No.

819 of 2007 seeking compensation of Rs.8,00,000/- under the

provisions of Motor Vehicles Act. It is the case of the claimant

in the claim petition that the driver of the rickshaw - opponent

No. 1 who was driving his rickshaw in excessive speed and in

rash and negligent manner. It is also the case of the claimants

in the claim petition that the claimants have lost their bread-

earner and have also suffered mental shock. It is also the case

of the claimants in the claim petition that the deceased -

Fakirbhai Devipujak was earning Rs.150/- to Rs.200/- per day

by selling vegetables and other seasonal vegetables and fruits

in huge quantities and hence, was having all the potential to

increase his income in the future. Therefore, claimants have

C/FA/1558/2013 ORDER DATED: 07/01/2022

filed claim petition to get compensation of Rs.8,00,000/-.

2.3 The summons was served on the respondent No. 2 -

owner of the vehicle, who did not participate in the

proceedings before the Tribunal. The opponent No. 3 -

insurance company appeared before the Tribunal and filed its

written statement at Exh. 13, wherein the involvement of

rickshaw bearing registration no. GJ-06-X-6743 as well as the

income and the age of the deceased is disputed. The opponent

- insurance company also raised the dispute of the

continuation of the policy and the validity of the license.

2.4 The Tribunal framed the issues at Exh. 15 and after

recording the oral evidence of the claimants at Exh. 19 and

after considering the documentary evidence produced on

record, the Tribunal held that respondent No. 1 i.e. driver of

the vehicle was negligent in driving, and that the opponent -

insurance company was liable to pay the amount of claim

which is to be awarded to the claimants as the insurance policy

was in existence at the relevant point of time. Thereafter, the

Tribunal considered income and other aspects by considering

various factors and under the various heads, compensation

came to be calculated and total compensation of Rs,7,22,125/-

C/FA/1558/2013 ORDER DATED: 07/01/2022

was granted to the claimants along with 9% interest per

annum from the date of petition. Against this, the present

appeal is preferred mainly on the ground that the driver was

not holding valid driving license.

3. Mr. Nanvati, learned advocate appearing for the

insurance company has submitted that on the aspect of

quantum, he cannot further argue, as looking to the various

judgments reported in the case of Sarla Verma Vs. Delhi

Transport Corporation & Anr. Reported in (2009) 6 SCC 121

and National Insurance Company Limited Vs. Pranay Sethi &

Ors. reported in (2017) 16 SCC 680 and the amount awarded

cannot be on the higher side. He has also submitted that the

First Appeal is mainly filed on the ground that the driver of the

rickshaw was not holding valid driving license. Therefore, he

submits that though there is judgment reported in (2017) 14

SCC 663 in case of Mukund Dewangan Vs. Oriental Insurance

Company Limited, the present Appeal can still be allowed in

the facts and circumstances of the present case and fairly

submits to pass appropriate order.

4. Per contra, Mr. Hakim, learned advocate for the

respondent No.3, 5 and 6 has submitted that in view ofteh

C/FA/1558/2013 ORDER DATED: 07/01/2022

decision in the case of Mukund Devgun (Supra), the present

issue of valid driving license by the driver of the rickshaw could

not survive and otherwise also, the amount which is granted

by the Tribunal is just and proper and the amount awarded

under the conventional head, is actually on the lower side, but

since the appeal is preferred by the insurance company, he is

not able to claim any further addition in the amount awarded

by the Tribunal and hence submits to dismiss the present

Appeal filed by the insurance company.

5. Having heard learned advocates for the respective

parties and having considered the material on record, this

Court finds that, it clearly transpires from the record of the

matter that present appeal is preferred mainly on the ground

that the driver of the rickshaw was not having a valid driving

license. I have perused the record, which clearly reveals that

Exh. 28 is copy of R.C. book, Exh. 31 is copy of policy of

insurance and Exh. 27 is copy of driving license. The insurance

company has not examined any witness from the Regional

Transport Office or any reliable evidence produced on record to

establish that the driver of the rickshaw was not holding valid

driving license. Moreover, in view of the judgments reported in

(2017) 14 SCC 663 in case of Mukund Dewangan Vs. Oriental

C/FA/1558/2013 ORDER DATED: 07/01/2022

Insurance Company Limited, more particularly para 60.4,

which reads as under, the stand taken by the insurance

company is ill-founded:-

"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."

6. In view of the above, the plea of the insurance company

that the driver of the rickshaw was not holding a valid driving

license is found meritless and the insurance company has not

established its case before the Tribunal that the driver of the

rickshaw was not holding a valid driving license at the time of

the accident. Hence, the insurance company is certainly liable

to pay the amount of compensation in view of the terms of the

insurance policy. Moreover, while looking to the amount

awarded under the various heads, the quantum of the

compensation awarded by the Tribunal is just and proper and

C/FA/1558/2013 ORDER DATED: 07/01/2022

on that ground also no interference is called for by this Court.