National Insurance Co Ltd vs Rakesh Kalubhai Patel
2022 Latest Caselaw 4992 Guj

      C/FA/171/2010                              JUDGMENT DATED: 09/06/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                   R/FIRST APPEAL NO. 171 of 2010
                               With
                   R/FIRST APPEAL NO. 172 of 2010

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA                                      sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT                                  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 ?

==============================================================
                         NATIONAL INSURANCE CO LTD
                                    Versus
                      RAKESH KALUBHAI PATEL & 5 other(s)
==============================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3
RULE SERVED for the Defendant(s) No. 5,6
UNSERVED EXPIRED (N) for the Defendant(s) No. 4
==============================================================
    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE SANDEEP N. BHATT
                       Date : 09/06/2022
                       ORAL JUDGMENT

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

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi), Panchamals at Godhra in Claim Petition Nos. 1166 and 1167 of 1999, the appellant Insurance Company has preferred the present First Appeals under Section 173 of the

C/FA/171/2010 JUDGMENT DATED: 09/06/2022

Motor Vehicles Act, 1988 (hereinafter referred to as the "Act"). Both these appeals related to the same accident and as recorded hereinabove, both these appeals were heard together and are disposed of by this common judgment and order.

2.0. Facts leading to the present appeals in nutshell are as under:

2.1. That the accident took place on 12.4.1999 when the deceased Kalubhai Lalabhai Patel and his deceased wife Naniben were returning back from the In-laws house to their home on their motorcycle bearing Registration No.GJ-17-H-8279 and when they reached near the village Khanpur, at that time, from the opposite side, the opponent no.1 came with his Tempo bearing Registration No.GJ-17-X-3682 in rash and negligent manner and dashed with the motorcycle of the deceased, due to which, deceased sustained serious injuries and succumbed to the same. An FIR was lodged with the jurisdictional police station and claimants preferred present claim petition under Section 166 of the Act and claimed compensation at Rs.70 lakhs. It was the case of the claimants that the deceased Kalubhai Patel was a farmer and was doing business of animal husbandry and was earning Rs.65,000/- to Rs.70,000/- yearly. It was the case of the claimants that the deceased Naniben Kalubhai Patel was a farmer and was doing business milk production and was earning Rs.35,000/- to Rs.40,000/- yearly. The appellants- original claimants also relied upon the plethora of documentary evidence, which are as under :

Exh.No.              Particulars
18                   Leaving certificate of deceased Naniben






      C/FA/171/2010                                   JUDGMENT DATED: 09/06/2022



19                   PM Report of deceased Naniben
20                   Scene of offence panchnama
20                   Affidavit of Kailashben in MACP No.1167 of 1999
21                   PM Report of deceased Kalubhai
22                   Leaving certificate of deceased Kalubhai
23                   Driving license of deceased Kalubhai
24                   Form 8 A
25 to 29             Form 7 & 12
30                   Record of right
31                   Certificate for tractor of deceased issued by RTO
                     Godhra
32                   Affidavit of Kailashben
40                   Complaint
49                   Evidence of Hakimbhai Malek
50                   Income Certificate of deceased Kalubhai
51                   Certificate of Member and Chairman in Limadiya
                     Milk Product cooperative Society
52                   Income Certificate of deceased Naniben
54                   Complaint (MACP No.1167 of 1999)
62                   Evidence of Rameshbhai Gajjar

The Tribunal after considering the evidence on record, more particularly, Exh.40- complaint and Exh.20- panchnama came to the conclusion that the driver of Tampo involved in the accident was solely negligent. Considering the other evidence on record in Claim Petition Nos. 1166 and 1167 of 1999, while partly allowing the claim petitions, the Tribunal awarded total compensation of Rs.13,74,000/-in MACP No.1166 of 1999 and Rs.6,27,000/- in MACP No.1167 of 1999. Being aggrieved and dissatisfied with the same, the present appellant preferred present appeals.

3.0. Mr. Bhalodi, learned advocate for the claimants at the

C/FA/171/2010 JUDGMENT DATED: 09/06/2022

outset, submitted that original claimant Gangaben Patel has expired during the pendency of the appeals and therefore, she may be permitted to be deleted as her estate is already represented. Original claimant Gangaben Patel stands deleted.

4.0. Heard Mr. Vibhuti Nanavati, learned advocate for the appellants and Mr. Nishit Bhalodi, learned advocate for the original claimants.

5.0. Mr. Nanavati, learned counsel for the appellant contended that the Tribunal has not appreciated the fact that the driver of Tampo involved in the accident did not possess valid and proper license. According to Mr. Nanavati, the license possessed by the driver of the Tampo was having endorsement of Light Motor Vehicles and not goods carriage vehicle and therefore, according to Mr. Nanavati, learned advocate for the appellant cannot be saddled with the liability of indemnify the award. Mr. Nanavati also contended that in both the claim petitions the Tribunal has awarded excessive amount of compensation. On the aforesaid grounds, it was contended by Mr. Nanavati that the appeals require consideration and same be allowed as prayed for.

6.0. Per contra, Mr. Bhalodi, learned advocate for the original claimants has opposed present appeals and has submitted that issue as regard endorsement in the license is covered by the judgment of the Hon'ble Supreme Court in the case of Mukund Dewagan vs. Oriental Insurance Company Limited reported in (2017) 14 SCC 663. Mr. Bhalodi further contended that no evidence whatsoever has been produced before the Tribunal by the appellants to even remotely establish that the driver of the Tamp do not possess valid license. As far as quantum is

C/FA/171/2010 JUDGMENT DATED: 09/06/2022

concerned, Mr. Bhalodi, contended that no interference is called for and Tribunal has granted just and adequate compensation which does not require any alteration or modification. On the aforesaid ground, Mr. Bhalodi, learned advocate for the original claimants contended that the appeal be dismissed.

7.0. No other and further submissions/ grounds/ contentions have been made by the learned advocates for the respective parties.

8.0. Upon perusal of the relevant record and proceedings of the case produced by the learned advocates for the respective parties, the questions which are raised in this appeals as far as quantum is concerned, this Court is of the opinion that following the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680, Magma General Insurance Co. Ltd vs. Nanu Ral Alias Chuhur Ram & Ors reported in (2018)18 SCC 130 and United India Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC 3076 on the contrary original claimants would be entitled to more compensation than what was awarded. However, in view of the fact that the compensation awarded is just and proper, we do not deem it fit to interfere with the same. Therefore, contention with regard to quantum deserves to be negatived outright. As far as contention about license is concerned, on perusal of the record and proceedings, we find that such contention was not proved at all before the Tribunal and in absence of any evidence on record, the appellant now cannot be permitted to be contended that the Driver of Tempo involved in the accident do not possess the proper license with an endorsement of goods

C/FA/171/2010 JUDGMENT DATED: 09/06/2022

vehicle. Even otherwise, the issue is squarely covered by the judgment of the Hon'ble Supreme Court in the case of Mukund Dewagan (supra), therefore, the said contention also fails. Consequently, both the appeals being meritless, deserves to be dismissed and are hereby dismissed. No costs.

sd/-

(R.M.CHHAYA,J)

sd/-

(SANDEEP N. BHATT,J) KAUSHIK J. RATHOD