Iffco-Tokio Gen Ins Co Ltd vs Shantaben Wd/O Balusinh Mansinh ...
2022 Latest Caselaw 2770 Guj

     C/FA/178/2011                               CAV JUDGMENT DATED: 11/03/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 178 of 2011

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SANDEEP N. BHATT

================================================================

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 ?

================================================================ IFFCO-TOKIO GEN INS CO LTD Versus SHANTABEN WD/O BALUSINH MANSINH SOLANKI & 7 other(s) ================================================================ Appearance:

MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1 MR AMIT C NANAVATI(1384) for the Defendant(s) No. 1,2,3,4,5,6 MR PS CHAMPANERI(214) for the Defendant(s) No. 7 MR R.K.MANSURI(3205) for the Defendant(s) No. 8 ================================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 11/03/2022

CAV JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by appellant-Iffco Tokiyo General Insurance Co. Ltd. (Original Opponent No.1), being aggrieved and dissatisfied with the judgment and award dated 29.09.2010 passed by the Motor Accident Claims Tribunal (Main), Sabarkantha at Himmatnagar in Motor Accident Claim Petition No.1106 of 2006, by which the

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Tribunal has awarded Rs.1,00,000/- with 7.5% per annum interest to the claimants, by holding Opponent No.1 liable.

2. Brief facts of the case are as under:

2.1 On 11.08.2006 at about 5:00 p.m., deceased-Balusinh Mansinh Solanki was going from Majra to Talod by driving the Hero Honda Motorcycle bearing registration No.GJ-9-AC-4936 and one Kansinh Chatursinh Solanki was the pillion rider on the said Hero Honda Motorcycle. When they were passing on Majra-Talod Highway road, near turning at Ganeshpura village patiya, Opponent No.2-driver of the involved Jeep bearing registration No.GJ-5-N-6274 came by driving the Jeep in full speed with rashly and negligently and dashed with the said motorcycle, thus, the accident has occurred. Due to excessive speed, jeep ran down on the side of the cross road, and the motorcycle was thrown down on the other side of the road. Deceased-Balusinh Mansinh Solanki sustained serious injuries at various parts of his body due to the accident and thereafter, got unconscious. He was immediately taken to Talod Hospital, and as advised by the doctors on duty, he was shifted to the Civil Hospital, Ahmedabad on the same day. He was admitted in the Civil Hospital, Ahmedabad, and on the same day i.e. on 11.08.2006, he succumbed to injuries during the treatment. At the time of accident, deceased- Balusinh Mansinh Solanki was aged about 40 years old and was earning Rs.4,000/- p.m. by doing house contract business and animal husbandry work and therefore, the claim petition is filed under Section 166 of Motor Vehicles Act, 1988 by his legal heirs and legal representatives to get the compensation of Rs.4,00,000/-.

   C/FA/178/2011                                CAV JUDGMENT DATED: 11/03/2022



2.2     The Tribunal has issued the notices to the opponents.

Opponent No.1-Iffco Tokio General Insurance Company Ltd. has appeared through his advocate and has filed its written statement at Exh.26 denying the allegation and averments made in the claim petition. Opponent No.3-owner of the involved Jeep has appeared through its advocate and has filed his written statement at Exh.36. By way of both the written statements, the respective opponents have denied all the averments made in the claim petition by the claimants.

2.3 The Tribunal has framed the issues at Exh.49 and thereafter, the deposition of widow of the deceased-Balusinh Mansinh Solanki, claimant No.1-Shantaben was recorded at Ex.58 and she was cross- examined by the Opponent No.1-insurance company and Opponent No.3. The claimants have produced documentary evidence like; certified copy of F.I.R. at Exh.50, certified copy of Panchnama at Exh.51, certified copy of inquest Panchnama of the deceased- Balusinh Mansinh Solanki at Exh.52, certified copy of injury certificate issued by Public Health Center, Talod at Exh.53, certified copy of P.M. Note of deceased at Exh.54, copy of insurance policy of involved motorcycle at Exh.56, certified copy charge-sheet at Exh.64 etc., on record.

2.4 After hearing learned advocates for the respective parties and after considering submissions, the Tribunal has awarded compensation of Rs.1,00,000/- with 7.5% p.a. simple interest from the date of filing of the claim petition to the claimants.

2.5 Being aggrieved and dissatisfied with the above finding on the aspect of quantum as well as liability of the Insurance Company, the present First Appeal is preferred by the Insurance Company under Section 173 of the Motor Vehicles Act, 1988.

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3.1 I have heard learned advocate Ms. Kirti S. Pathak for the insurance company. She has contended that the Tribunal has erred in coming to the conclusion that appellant-insurance company would be liable to satisfy the award. Thereafter, she has further contended that the claim petition by the claimants claiming compensation for the act of the deceased himself was not tenable under the provisions of Motor Vehicles Act, 1988. Thereafter, she has further contended that the Tribunal has not considered properly the compulsory liability contemplated under Chapter XI of the Motor Vehicles Act, 1988, specifically pertains to insurance of the Motor Vehicle against third party risk. She has further contended that the Tribunal has not appreciated the judgment of Hon'ble Apex Court in the case of Nigamma v. United India Insurance Co. Ltd., reported in 2009 ACJ 2020, wherein the Hon'ble Supreme Court has held that even under Section 163A, claim by the driver would not be tenable and the driver of the motorcycle insured by the insurance company could, by no stretch of imagination, be treated as a third party, whose risk is not contemplated under the provisions of Motor Vehicles Act, 1988, but was a contractual liability between the parties. In view of this, the Tribunal has no jurisdiction to adjudicate.

3.2 She has further contended that the Tribunal has not considered that the said liability would incur only in case when the owner of the vehicle complied with the terms and conditions of the policy, which was not so in the present case. She has further contended that the Tribunal ought to have considered that the accident was caused due to contributory negligence wherein, the jeep driver was having larger contributory and ought to have apportioned liability as per specific shares and the Tribunal has erred in coming to the conclusion that accident was caused due to 75% negligence of the driver of the said

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motorcycle. She has further contended that adverse inference may be drawn against the driver of the Jeep, who, despite service of summons, has not stepped into witness box before the Tribunal. She has further contended that in the facts and circumstance of the case, the Tribunal has committed an error by holding the insurance company liable, wherein the driver of the insured vehicle himself is responsible for occurrence of accident. She has prayed to allow this appeal.

3.3 She has further contended that the risk of the driver in the present case is not covered under the insurance policy as the driver was not holding valid and effective driving licence at the time of accident. She has further contended that the Tribunal has committed an error about the finding given on the basis of personal accident. The procedure to obtain personal accident is different, whereby the claimant has to fill up separate form for it.

3.4 In support of her submissions, she has placed reliance upon the following decisions of Hon'ble Apex Court as well as our High Court:

(i) Pappu & Others vs Vinod Kumar Lamba & Anr.-S.L.P. No.29032 of 2015., (ii) National Insurance Co. Ltd. v. Swarna Singh-(2004) 3 SCC 297, (iii) Ramkhiladi & Anr. vs. United India Insurance Co.-(2020) 2 SCC 550, (iv) Ningamma v. United India Insurance Co. Ltd.-(2009) 13 SCC 710, (v) Bajaj Alliance General Insurance Co. Ltd. Vs. Jitendrabhai Thakarsibhai Vadhaiya-Special Civil Application No.15533 of 2016 and has contended that the driver, who himself was driving the vehicle, cannot get the compensation from the insurance company of his vehicle as he is responsible for the commission of the accident. Further, she has placed reliance on the decision of Hon'ble Apex Court reported in Civil Appeal No.1799 of 2009 (arising out

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of SLP (c) No.14791 of 2006) whereby, the Hon'ble Supreme Court has observed that "Just because vehicle is uninsured, Tribunal cannot held insurance company liable, jointly and severally."

3.5 She has further placed reliance on the decision of Hon'ble Apex Court rendered in the case of G.S.R.T.C. Vs. Hanif Mohmed Bismillakhan & Ors., reported in 1997 ACJ 885, and has further disputed the submissions made by the learned advocate for the claimants, by placing reliance on the decisions of Hon'ble Apex Court in the case of (I) National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680, (ii) Usha Devi Vs. Pawan Kumar reported in Civil Appeal No.9936-9937 of 2016, where the Hon'ble Supreme Court has considered the risk of third party as per the insurance policy. Therefore, she has further contended that the Tribunal has committed grave error in directing the Opponent No.1- Insurance Company to pay the amount of compensation. She has submitted that this appeal may be allowed.

4. Per contra, learned advocate Mr. Amit C. Nanavati appearing for the claimants has submitted that the Tribunal has not committed any error in holding the insurance company liable and the Tribunal has not committed error in apportioning the liability to the Scooter to the extent of 75%. He has placed reliance on the decision of Hon'ble Apex Court rendered in the case of National Insurance Company Limited vs. Pranay Sethi & Ors. reported in AIR 2017 SC 5157 and has submitted that the future prospective income was not considered by the Tribunal. He has submitted that the Tribunal ought to have considered the compensation by considering the income, prospective income as well as age of deceased to award just compensation to the claimants. He prays that this Court can also consider that aspect for enhancement of compensation.

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4.2 He has further contended that the Tribunal has failed to consider the aspect of loss of consortium as per the judgment of Hon'ble Apex Court rendered in the case of New India Assurance Company Ltd. Vs. Somwati & Ors. reported in (2020) 9 SCC 644 and thereafter, he has further submitted that on these two counts, the Tribunal has failed to consider the appropriate amount for compensation, which this Court can certainly consider.

4.3 On the aspect of liability of the insurance company, he has pointed out from the record and proceedings of the Tribunal by showing the insurance policy produced at Exh.56, whereby the insurance policy indicates that the premium paid by P.A. to owner driver of Rs.50 and therefore, he has contended that the Tribunal ought to have considered this aspect by awarding reasonable compensation to the claimants. The Tribunal has rightly considered the liability of the insurance company. He has submitted that the present appeal may be dismissed.

4.4 He has further contended from the impugned judgment that the deposition of Shantaben - widow of deceased is also recorded at Exh.58 before the Tribunal, where she was also examined and cross- examined. He has further contended that the licence is not produced on record at the time of filing the claim petition, as the claimants are widow and children of the deceased, who are not much literate. Therefore, in absence of such document, it is duty of the insurance company to prove its case about invalid driving licence or driver was not holding driving licence, by examining the witness from the R.T.O. or by asking the relevant details about the licence from the R.T.O. That exercise is not carried out by the insurance company in the present case.

C/FA/178/2011 CAV JUDGMENT DATED: 11/03/2022

He has submitted that in view of the judgment reported in 2005 I ACC 588 in First Appeal No. 654 of 1995, our own High Court has has taken a view that though the driver of the insured vehicle is found negligent to the extent 100%, the insurance company is liable to pay the amount of compensation.

4.5 Thereafter, he has submitted that the Tribunal has rightly placed reliance on the decision of Rajasthan High Court in the case of United India Insurance Co. Ltd. Vs. Rekha reported in ACJ 2007 2614 and has submitted that in that case also, it is found that the driver can recover the amount from the insurance company. He has further contended that even the issue of compensation, which can be awarded to the driver or heirs of the driver of the offending vehicle is decided by the Hon'ble Apex Court in the case of Hansrajbhai vs. Kodala reported in 2001 ACJ 827 and the judgment rendered in the case of Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. reported in 2001 ACJ 934. Thereafter, he has further relied upon the judgment of Hon'ble Apex Court rendered in the recent case of Kurvan Ansari @ Kurvan Ali & Anr. Vs. Shyam Kishore Murmu & Anr. reported in (2022) 1 SCC 317 where the driver of the offending vehicle is not holding valid and effective driving licence. Therefore, he has submitted that keeping the judgments of Pranay Shetty(supra), Somwati(supra) and Ningamma (supra) of the Hon'ble Apex Court, some amount of compensation can be enhanced appropriately.

5.1 I have heard learned advocates for the respective parties. I have considered the impugned judgment delivered by the Tribunal. I found that in view of the judgment in the case of National Insurance Co. Ltd. v. Swaran Singh reported in 2004 ACJ 1, it is the duty of the insurance company to prove the factum of the

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submission that the driver of the offending vehicle, to whom insurance company has insured, was not holding valid and effective driving licence at the time of accident and the burden has not been discharged by the insurance company in the present case.

5.2 The Tribunal has rightly discussed the judgments (i) Punam Devi v. Divisional manager, New India Assurance Co. Ltd. reported in 2004 ACJ 785, (ii) Oriental Insurance Co. Ltd. Vs. Sushma & Ors., reported in 2009 ACJ 108, (iii) New India Assurance company Ltd. Vs. Asha Rani reported in 2010 ACJ 1847, (iv) New India Assurance Company Ltd. Vs. Mangala & Ors. reported in 2009 (2) TAC 769, where the Bombay High Court as well as Hon'ble Apex Court have found that when the driver himself has died due to the accident so it cannot be expected from the heirs of the deceased to produce the driving licence since the driver is not alive and it is the responsibility of the insurance company to discharge its burden by getting proper certification from R.T.O. in support of its arguments.

5.3 Further, the Tribunal has discussed the case of Laxmi Devi v. Mohammad Tabbar reported in 2008 ACJ 1488 for considering the income of deceased Rs.4,000/-p.m. Further, I found that there is sufficient submission made before the Tribunal about the issue of production of driving licence and about the question as to who will produce the driving licence. The Tribunal has discussed at length about the aspect of non-production of driving licence by the claimants by considering the judgment of Bombay High Court rendered in the case of New India Assurance Compant Ltd. Vs. Mangala & Ors. and the judgment reported in 2010 ACJ 1847 in the case of New India Assurance Co. Ltd. Vs. Ansuiya Devi & Ors. and also subsequent judgment of the Hon'ble Apex Court.

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The burden of proof is always on the shoulder of the insurance company by examining appropriate officer from the R.T.O. or by getting certificate from the R.T.O. officer. In the present case, the insurance company has failed to prove so and therefore, it can be presumed that in absence of any evidence to the effect that the driver was not holding any valid and effective driving licence, which cannot be considered against the claimants. Looking to the discussion in the impugned judgment regarding the liability of the insurance company to pay the amount of compensation, if we consider the policy at Exh.56, it clearly shows that personal accident cover of owner-driver under Section III-CSI and additional premium of Rs.50 was collected by the insurance company. Therefore, the Tribunal has rightly come to the conclusion that in view of the case of Hon'ble Supreme Court in the case of Oriental Insurance Company Ltd. v. Rajni Devi reported in 2008 (2) TAC 752, and also in view of the decision in the case of Ramkhiladi versus United India Insurance Co., reported in (2020) 2 SCC 550 as deceased was owner of the vehicle, the applicants are entitled to get Rs.1,00,000/- compensation from the Opponent No.1-Insurance Company.

5.4 I found that the Tribunal has not committed error in not fastening the liability on the respondent Nos.7 and 8 also to pay the amount of compensation to the claimants, by calculating the amount of compensation under the various heads to the extent of their negligence to the extent 25%, which is assessed by the Tribunal. If we consider the aspect of negligence, which is discussed in para 16 and 17 of the impugned judgment, from the Panchnama of the place of accident, it reveals that there was head on collision on middle of the road. The Tribunal has also found that middle portion of the Jeep of front bumper got bend. There is no error committed by the

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Tribunal in view of the Panchnama and FIR in apportioning negligence and in view of particular circumstances of the present case, the amount of Rs.1,00,000/- can not be held on higher side also after considering the negligence of 75% of scooter. In any case in view of the judgment in the case of Ramkhiladi & Anr. Vs. United India Insurance Co. reported in (2020) 2 SCC 550, the driver of scooter entitles to get Rs.1,00,000/- towards personal accident as he is negligent.

5.5 If we calculate the aspect of quantum, the Tribunal could have considered the income of the deceased Rs.4,000/-p.m., future prospects of the income should be 25% as per the decision of Hon'ble Apex Court in the case of Pranay Shetty (supra) as deceased was aged about 40 years old. Therefore, Rs.5,000/- p.m. towards future loss of income should be awarded. Looking to the dependency of 6 persons, 1/5th should be deducted and therefore, Rs.1,000/- p.m. should be deducted from Rs.5,000/- p.m. which will come to Rs.4,000/- p.m. or annual dependency Rs.48,000/- where the multiplier of 15 looking to the age of deceased is applicable and therefore, Rs.7,20,000 plus Rs.2,40,000/- towards loss of consortium (Rs.40,000/- each to six persons) then, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses should be awarded. Therefore, total comes to Rs.9,90,000/- and 25% negligence of the deceased is required to be deducted, therefore it would come to Rs.7,45,000/- compensation which is required to be awarded with 7.5% p.a. interest from the date of claim petition. However, the claimants have prayed Rs.4,00,000/- for compensation in the claim petition and the Tribunal has awarded Rs.1,00,000/- to the claimant after taking into consideration the facts, this Court is of the opinion that the award of Rs.1,00,000/- awarded by the Tribunal is found reasonable in facts and circumstances of the present case, even after

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75% negligence of the scooter driver, the amount of Rs.1,00,000/- is found proper as amount of personal accident to the driver in view of judgment in the case of Ramkhiladi & Anr. (supra).

6. With the above observations, the following order is passed.

6.1 The present First Appeal No.178 of 2011 is dismissed, as meritless to the aforesaid extent, with no order as to costs.

6.2 The impugned order is modified by directing the Insurance Company to pay the amount of compensation, with accrued interest.

6.3 The impugned award of the Tribunal is modified by directing the present appellant-Iffco Tokiyo General Insurance Co. Ltd., is liable to pay Rs.1,00,000/- with 7.5% p.a. interest to the claimants from the date of claim petition.

6.4 It is directed that the concerned Tribunal shall disburse the entire amount to claimants, as noted above, lying in FDR and/or lying with the Tribunal, by following due procedure, by way of account payee cheque, after proper verification.

6.5 Record and Proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA