The Oriental Insurance Co Ltd vs Munghiben Munjabhai Godhania
2022 Latest Caselaw 240 Guj

      C/FA/300/2020                             JUDGMENT DATED: 07/01/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 300 of 2020
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 3 of 2019
                   In R/FIRST APPEAL NO. 300 of 2020

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA                           sd/-
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA                      sd/-
==============================================================
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 of            NO
      the judgment ?

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

==============================================================
                      THE ORIENTAL INSURANCE CO LTD
                                  Versus
                      MUNGHIBEN MUNJABHAI GODHANIA
=============================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR DIGANT B KAKKAD(6523) for the Defendant(s) No. 1,2,3
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 9
MR YS RAJPUT(1383) for the Defendant(s) No. 7
MUKESHGIRI K GOSWAMI(8904) for the Defendant(s) No. 7
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 6
NOTICE SERVED(4) for the Defendant(s) No. 4,5
SERVED BY AFFIX(N)(7) for the Defendant(s) No. 8
==========================================================
    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
            and
            HONOURABLE MR. JUSTICE NIRAL R. MEHTA
                       Date : 07/01/2022
                       ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 19.04.2018 passed by the learned

C/FA/300/2020 JUDGMENT DATED: 07/01/2022

Motor Accident Claims Tribunal (Auxi), Porbandar in MACP No.51 of 2010, the Insurance Company of one of the vehicle involved in the accident has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2.0. The following facts emerge from the record of this appeal: 2.1. That the accident took place on 27.02.2010 at about 7 pm when the deceased Lakhubhai Manjubhai was going to Ranakandorana to Porbandar on his Bajaj Motorcycle and when he reached near Mokar Village at that time, opponent no.1 came with his Harvester No. HR-05-R-4691 in excessive speed, rash and negligent manner and endangering the human life dashed with the deceased Motorcycle because of which, deceased sustained serious injuries and succumbed to the same. An FIR was lodged with the jurisdictional Police Station. It is the case of the appellants that deceased was aged about 45 years at the time of accident. The appellants preferred claim petition under Section 166 of the Act and claimed compensation at Rs. 33 lakh .

2.2. The Tribunal determined the income of the deceased as per the pay slip at Exh.42 and deposition of Rambhai Keshavbhai at Exh.39 and after giving benefit of 30% prospective income and deducting 1/4th towards personal expenses, applied multiplier of 14, awarded a sum of Rs.42,76,944/- as compensation under head of loss of dependency. Over and above the same, the Tribunal awarded a sum of Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of consortium and Rs.15000/- towards funeral expenses. Thus, the Tribunal has awarded total compensation of Rs.43,46,950/- with 9% interest and

C/FA/300/2020 JUDGMENT DATED: 07/01/2022

proportionate costs from the date of claim petition till its realization.

2.3. Being aggrieved and dissatisfied with the same, the present appellant Insurance Company has preferred the present appeal.

3.0. Heard Mr. Maulik Shelat, learned advocate for the appellant- Insurance Company, Mr. Rathin Raval, learned advocate for the respondent no.9, Mr. Digant Popat, learned advocate for the original claimants and Mr. Y S Rajput, learned advocate for respondent no.7. Though served, no one appears for other respondents. This Court vide order dated 26.02.2021 was pleased to issue notice for final disposal.

4.0. Mr. Shelat, learned advocate for the appellant relied upon the charge sheet at Exh.25 and the written argument at Exh.56. Mr. Shelat contended that a specific contention was raised before the Tribunal that the driver Mahendrasinh Kandal who was driving Harvester involved in the accident did not have any license. Relying upon the charge sheet at Exh.25, it was contended by Mr. Shelat that as per the charge sheet the said driver has committed an offence under Section 3 of the Act which inter alia provides for necessity for driving license. It was contended by Mr. Shelat that as provided under Section 3 of the Act, no person is permitted to drive motor vehicle in public place unless he holding effective license issued to him. Mr. Shelat further contended that though specific contention has been raised before the Tribunal which is vital and important for deciding the liability of the appellant, the same has not been dealt with by the learned Tribunal. Mr. Shelat invited attention

C/FA/300/2020 JUDGMENT DATED: 07/01/2022

of this Court to the observations made by the Tribunal in para 30 of the impugned judgment and award and contended that though the Tribunal while deciding the issue of liability has come to the conclusion that the driver of offending Harvester is responsible for causing the accident. The vital aspect of not having any type of valid license is not dealt with and examined by the Tribunal. Mr. Shelat also contended that the Tribunal has mentioned about considering the written argument at Exh.56 filed by the appellant, however no finding is given. On the aforesaid grounds, it was therefore, contended by Mr. Shelat that the impugned judgment and award is bad in law and same deserves to be quashed and set aside and the appellant Insurance Company deserves to be exonerated or in the alternative it was submitted that the impugned judgment and award be quashed and set aside and proceeding of MACP No.51 of 2010 be remanded back to the Tribunal for deciding the said issue within stipulated time.

5.0. Mr. Rathin Raval, learned advocate for the other Insurance Company submitted that the fact remains that such contention was raised, however the same has not been considered by the Tribunal.

6.0. Mr. Digant Kakkad, learned advocate for the original claimants however submitted that the Tribunal has rightly decided the question of liability and no interference is called for. 7.0. No other and further submissions/ grounds/ contentions have been raised by the learned advocates for the respective parties.

8.0. Having heard the learned advocates for the respective parties and only question which arise in this appeal is whether the Tribunal has committed an error in not deciding the issue

C/FA/300/2020 JUDGMENT DATED: 07/01/2022

whether driver of Harvester had any valid license or not and whether the Tribunal has correctly appreciated the evidence in form of charge sheet at Exh.25 or not. Having perused the original record and proceedings of the case and charge sheet at Exh.25 clearly spells out that the same is filed against the driver of Harvester involved in the accident being Mahendrasinh Kandal. In column no.5 of the charge sheet, it is clearly mentioned that the offence is under Sections 279, 304- Part I of IPC and Sections 183, 184, 177(3), 3 and 181 of the Act. Section 3 of the Act provides for necessity of having license to drive any type of vehicle and Section 181 provides that whoever drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees, or with both. We find that in written argument at Exh.56 specific contention has been raised by the appellant Insurance Company. The appellant Insurance Company has also relied upon the judgments of the Hon'ble Supreme Court to buttress said argument. Upon perusal of the impugned judgment and award, we do find that in para 7 thereof the Tribunal has observed that it has considered written argument at Exh.56, however in the whole judgment, we do not find any consideration of such a vital aspect involved in the present claim petition which would touch the liability of the appellant Insurance Company. In light of the aforesaid, therefore, it is eminent that such question is examined on the basis of evidence adduced before the Tribunal. We have no option but to quash and set aside the impugned judgment and award and remit back the proceeding of MACP No.51 of 2010 to the Tribunal for deciding the issue as raised by the present appellant in its written

C/FA/300/2020 JUDGMENT DATED: 07/01/2022

argument at Exh.56. The Tribunal will have to decide the issues which are as per the charge sheet at Exh.25 the driver of Harvester who is party to the proceedings have any valid or subsisting license or not. Resultantly, the impugned judgment and award dated 9.04.2018 passed by the learned Motor Accident Claims Tribunal (Auxi), Porbandar in MACP No.51 of 2010 is quashed and set aside and the proceedings of MACP No. 51 of 2010 are restored back to the file of the Tribunal at Porbandar. The Tribunal is directed to decide whether the driver of Harvester involved in the accident have valid license as envisaged under Section 3 of the Act or not and pass fresh judgment and award. It is also provided that no further evidence would be permitted and Tribunal shall decide the said issue as directed by this Court in accordance with law and after appreciating the evidence on record. Point raised in this appeal is answered accordingly. The Tribunal shall decide the said issue latest by 31.05.2022. The amount of compensation deposited by the Insurance Company shall be invested in a fixed deposit initially for a period of six months with cumulative interest by the Tribunal and original FDR shall be retained by Nazir of the Tribunal till the claim petition is decided and disposed of in light of present judgment and order. Present appeal is allowed to the aforesaid extent. However, there shall be no order as to costs.

In view of disposal of the appeal, connected Civil Application would not survive and stands disposed of.

sd/-

(R.M.CHHAYA,J)

sd/-

(NIRAL R. MEHTA,J) KAUSHIK J. RATHOD