Amarsinh @ Amarjit Kalibhai ... vs Gulabbhai Ranchhodbhai Patel
2023 Latest Caselaw 3131 Guj

      C/FA/64/2013                               JUDGMENT DATED: 21/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 64 of 2013


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE S.V. PINTO
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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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                  AMARSINH @ AMARJIT KALIBHAI VASAVA
                                Versus
                GULABBHAI RANCHHODBHAI PATEL & 1 other(s)
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                             Date : 21/04/2023

                            ORAL JUDGMENT

Though served, no one appears for the respondent No.1

1. The appellant- Original Claimant has preferred this appeal

under Section 173 of the Motor Vehicles Act (hereinafter referred to

as "the Act"), being aggrieved and dissatisfied by the judgement and

C/FA/64/2013 JUDGMENT DATED: 21/04/2023

award passed by the learned Motor Accident Claims Tribunal

(Main), Narmada at Rajpipla (hereinafter referred to as "the

Tribunal") in M.A.C.P. No. 113 of 2010 on 12.12.2011.

2. The facts that emerge from the record are as under:-

2.1 That on 20.3.2010 the claimant had gone to Dadriya Sugar

Factory in Truck No. GJ-7-T-5000 loaded with sugarcane and the

applicant was driving the said truck and after unloading the

sugarcane he was going to Kadodara and at about 9.15 p.m. when he

reached in the outskirts of village Manekpur on the Surat Dhuliya

Highway, a luxury bus came from the opposite directions with full

lights and due to the excess lights the applicant lost control over the

truck and it dashed with a tree. That the applicant received serious

injuries and his right leg had to be amputated from below the knee as

also the second toe of his left leg was amputated and his working

ability was totally affected. That he received other injuries and also

sustained permanent disabilities and was unable to drive any vehicle.

That at the time of the accident, the applicant was 41 years old and

C/FA/64/2013 JUDGMENT DATED: 21/04/2023

was earning Rs.4,500/- per month by working as driver and has

suffered great pain, shock and suffering and has claimed an amount

of Rs.10,53,000/- by way of compensation under Section 163A of

the Act.

3. The summons was duly served to all the opponents and the

opponent No.1 remained absent whereas the opponent No.2 -

Insurance Company appeared and filed a written statement at Exh.

18 inter alia denying all the avements made in the claim petition

including the involving of the offending vehicle in the accident.

Moreover the Insurance Company has also contended that the

applicant himself was driving the vehicle at the time of the accident

and is not entitled for any compensation under the Motor Vehicles

Act but should file an application under the Workmen Compensation

Act.

4. After considering the oral and documentary evidence of the

parties on record, the learned Tribunal awarded an amount of

Rs.6,17,845/- as compensation to the claimant and held that the

opponent No.2 Insurance Company is liable to pay only an amount

C/FA/64/2013 JUDGMENT DATED: 21/04/2023

of Rs.2.00 lakhs and the remaining amount was to be paid by the

opponent No.1 with proportionate costs and interest at the rate of 9%

from the date of filing of the petition till realization. The Tribunal

considered the monthly income of the claimant to be of Rs.3,000/

per month and held that the claimant has suffered 100% disability

and considering the medical expenses, loss of income, pain, shock

and suffering and loss of earning capacity awarded an amount of

Rs.6,17,845/- as compensation. The learned Tribunal also held that

the claimant is a workman and the Insurance Company has accepted

the amount of Rs.550/- as premium from the vehicle owner for the

driver and as per the terms and conditions of the policy, the

Insurance -Company has accepted the risk of the driver upto Rs.2.00

lakhs and limited the liability of the Insurance Company to the

extent of only Rs.2.00 lakhs.

5. Being aggrieved by this order, the appellant-original claimant

has filed the present appeal mainly contending that the order of the

Tribunal is illegal, improper, perverse and against the evidence on

record and the learned Tribunal has committed an error while

C/FA/64/2013 JUDGMENT DATED: 21/04/2023

interpreting the insurance policy. That the learned Tribunal ought to

have considered the fact that the claimant is a paid driver and falls

under the category of legal liability of the Insurance Company

towards the paid driver and the premium charge by the Insurance

Company is Rs.550/- as per IMT 40 which is unlimited and the

Insurance Company is liable to pay the entire amount of

compensation. That the award ought to be modified to that extent

and the appeal must be allowed.

6. Mr.Hiren Modi, learned advocate appearing for the appellant

has submitted that the Insurance Company has accepted the

unlimited liability to pay the driver and has also accepted an amount

of Rs. 100/- as premium for personal accident for owner driver under

GR 36A whereas in the instant case the learned Tribunal has

erroneously considered the GR 36A and has not considered the IMT

40 which casts an unlimited liability on the Insurance Company to

pay the entire amount of compensation. That the appeal must be

allowed and the judgement and award must be modified to the

aforesaid extent and the Insurance Company must be ordered to pay

C/FA/64/2013 JUDGMENT DATED: 21/04/2023

the entire amount of compensation to the claimant.

7. Mr.Rathin Raval, learned advocate appearing for the

respondent No.2 -Insurance Company has opposed the submission

of the learned advocate for the appellant and has submitted that the

order passed by the learned Tribunal is proper no order of

interference is required and hence, the appeal of the appellant must

be dismissed.

8. The only issue that has to be decided in this appeal is with

regard to the extent of liability of the Insurance Company to satisfy

the amount of award and having heard learned advocates appearing

for the respective parties and having perused the record, it appears

that the learned Tribunal has considered the amount of premium of

Rs.100/- paid for personal accident for owner driver under GR 36A

which is limited upto Rs.2.00 Lakhs but has not considered the legal

liability of the Insurance Company to paid driver, conductor, cleaner

under IMT 40 and the Insurance Company has accepted the amount

of Rs.550/- as premium from the owner of the vehicle. Admittedly,

C/FA/64/2013 JUDGMENT DATED: 21/04/2023

the claimant is a paid driver and as per the record the claimant was a

paid driver of Truck No. GJ-7-T-5000 and he was driving the truck

at the time of the accident. That the finding of the learned Tribunal

that the liability of the Insurance Company is limited to the extent of

Rs.2.00 lakh arising out of the Workmen Compensation Act and the

owner has to satisfy the remaining portion of the award is erroneous

and interference is required to the extent in the judgement and

award.

9. Accordingly, the appeal is allowed. The order passed by the

learned Tribunal in MACP No. 113 of 2010 is modified to the extent

and the Insurance Company is held liable to satisfy the entire amount

of award. The Opponent No.2 -Insurance Company is ordered to

deposit the entire amount of compensation with costs and interest as

awarded by the learned Tribunal within a period of 8 weeks from the

date of receipt of this order. Rule is made absolute to the aforesaid

extent.

(S. V. PINTO,J) BEENA SHAH