Reliance General Insurance Co Ltd vs Champaben Tulsidas Sadhu
2023 Latest Caselaw 5724 Guj

                                                                                     NEUTRAL CITATION




     C/FA/1772/2020                                 JUDGMENT DATED: 07/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 1772 of 2020

                                     With
                         R/FIRST APPEAL NO. 2301 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                      RELIANCE GENERAL INSURANCE CO LTD
                                    Versus
                          CHAMPABEN TULSIDAS SADHU
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR.KARNA H DHOMSE(6684) for the Defendant(s) No. 1,2
RULE NOT RECD BACK for the Defendant(s) No. 3,4
RULE SERVED for the Defendant(s) No. 5,6
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                Date : 07/08/2023

                                ORAL JUDGMENT

1. Captioned first appeals u/s 173 of the Motor Vehicle Act from the common judgment and award dated 20.10.2019 passed

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in MACP No.630 of 2020 as well as MACP No.1288 of 2020 and allied matters, by which the learned MACT (Aux.), Ahmedabad Rural at Mirzapur, partly allowed respective claim petitions.

2. In MACP No.630 of 2010, the learned Tribunal granted compensation in tune of Rs.34,26,200/- along with simple interest at the rate of 9% from the date of petition till realization, in favour of the claimants, which has given rise to filing of First Appeal No.2301 of 2021 at the instance of the appellant - Reliance General Insurance Company Limited.

3. In MACP No.1288 of 2020, learned Tribunal granted compensation in tune of Rs.3,64,600/- along with simple interest at the rate of 9% from the date of petition till realization, in favour of the claimants, which has given rise to filing of First Appeal No.1772 of 2020 at the instance of the appellant - Reliance General Insurance Company Limited.

4. In absence of the challenge to the involvement of the vehicle in of the motor accident as well as quantum assessed in both the claim petitions, the facts of the case are stated pithily as to decide the challenge made in narrow compass by way of these appeals.

5. On 31.1.2010, deceased Amrutbhai and others were travelling in Maruti Van bearing registration No.GJ-1-HQ-6409 (in short "Maruti Van"). They were returning from village Ranuja. Maruti Van was driven by deceased Amrutbhai and when it was passing near Chandravati village on Abu Road, at that time Rickshaw Tempo (in short "the rickshaw") bearing registration

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No.RJ 24 PA 781 came from opposite side in a wrong direction with excessive speed and rashly and negligently dashed to the Maruti Van resulted into flipping of Maruti Van. Said accident was registered with concerned Police Station as an offence. Amrutbhai, who was driving Maruti Van, succumbed to the injuries on the spot. Whereas, others, who are travellers in the Maruti Van, received minor to major injuries. Qua each victim of road accident, MACPs were filed. However, these appeals are limited to the challenge made in the judgment and award passed in MACP Nos.630/2010 and 1288/2020.

6. The learned Tribunal in MACP No.630/2010, assessed the compensation as follows:-

(This claim petition is filed by heirs and legal representatives of deceased Amrutbhai.)

Annual income of deceased Rs.37,900/- x 12 = Rs.4,54,800/-

1/3rd from the Annual income Rs.4,54,800/- % 1/3= is required to be deducted Rs.1,51,600/-

Thus after deducting 1/3 from Rs.4,54,800/- the income of the deceased - - Rs.1,51,600/- Annual income would come to Rs.3,03,200/- Total loss of dependency Rs.3,03,200/- x 11 = Rs.33,35,200/-

Loss of Estate, Loss of                        Rs.91,000/-
Consortium and Funeral
Expenses

(This claim petition is filed by heirs and legal representatives of deceased Tulsidas Sadhu, who was one of the occupants of the

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Maruti Van.)

7. Alike for the claimants of MACP No.1288/2020, the learned Tribunal in, assessed the compensation as follows:-

Annual income of deceased 3800/- x 12 = Rs.45,600/-

1/3rd from the Annual income               Rs.45,600/- % 1/3=
is required to be deducted                     Rs.15,200/-
Thus after deducting 1/3 from                  Rs.45,600/-
the income of the deceased -                 - Rs.15,200/-
Annual income would come to                   Rs.30,400/-
Total loss of dependency                    Rs.30,300/- x 9 =
                                             Rs.2,73,600/-
Loss of Estate, Loss of                       Rs.91,000/-
Consortium and Funeral
Expenses

8. While assessing this compensation, the learned Tribunal has taken assistance form the well celebrated judgment of the Hon'ble Apex Court in case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in AIR 2009 SC 3014 as well as in case of National Insurance Company Ltd. Vs. Pranay Sethi and others rendered in Special Leave Petition (Civil) No.25590 of 2014.

9. Learned advocate Mr. Rathin Raval appearing for the appellant - insurance company - insurer of the rickshaw would submit that in present case, the learned Tribunal erred in not assessing the contributory negligence of the deceased Amrutbhai Tapodhan, who was riding the Maruti Van at the relevant time, more particularly, on the fact situation that accident took place on head-on-collision manner. He would further submit that

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both the vehicles i.e. Maruti Van and rickshaw could be considered as vehicles of equal nature and size as the road accident took place between them, deceased Amrutbhai should be considered equally negligent in causing the road accident and to that extent, the compensation has to be deduced from the compensation granted by the learned Tribunal. Secondly, he would submit that the rickshaw driver was plying without the valid and effective valid licence. The rickshaw involved in the road accident was a transport carrier vehicle. The driver of the rickshaw was not carrying the licence to drive such transport vehicle. That is the breach of the terms and conditions of the policy, which should result into the exoneration of the appellant insurance company from the liability to pay the compensation. However, the learned Tribunal has not considered such submission and has as such, seriously erred and therefore, learned advocate Mr. Raval submits to exonerate the insurance company. Lastly, it is submitted that the rickshaw was plying without proper permit and that is another breach of the terms and conditions of the policy. The same issue is also not touched by the learned Tribunal while assessing the liability of the insurance company. Upon such contention, it is submitted that the appeals should be allowed and the liability, which fastened the insurance company to pay the compensation awarded by the learned Tribunal for and on behalf of the driver and owner of the rickshaw, should be set aside and the insurance company should be exonerated from the liability.

10. In one of the appeals, the respondent Nos.3 and 4 are served and in another appeal, they are not served. But since both the appeals arise out of common judgment and award, the

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respondent Nos.3 and 4 are treated to be served.

11. None appears for the other side.

12. The bone of the contention of learned advocate Mr. Raval for the appellant insurance company is that the deceased Amrutbhai was also negligent in causing the road accident and as such, he should be considered equally negligent and that the amount of compensation granted to the heirs and legal representatives of deceased Amrutbhai should be deduced from the compensation granted by the learned Tribunal. This contention cannot be allowed, more particularly, in light of the fact that the rickshaw driver did not enter into the witness box to unfurl the real scene of the accident/incident. He is the best witness of the scene of the road accident. The insurance company has not done anything to secure the evidence of the rickshaw driver nor has supplied any reason. It is a fit case where adverse inference is required to be drawn. The learned Tribunal while deciding issue No.1 in favour of the petitioner, decided the point of negligence extensively and vividly. The findings recorded by the learned Tribunal can be extracted hereunder:-

8. Now, so far as the point of negligence is concerned, the petitioners of the above mentioned claim petitions have filed their examination in chief affidavit at Exh. 32, 33, 34, 35 & 36, wherein, they have narrated the facts of the accident as pleaded in the claim petition and therefore, as to avoid the repetition, the same has not been reiterated herein. The petitioners are cross examined by the Ld. Advocate for the Res. No. 3 Insurance Company wherein, the petitioners of Macp No. 629, 695 & 696

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of 2010 specifically deposed and admitted that the Res. No. 1 came with Rickshaw Tempo No. RJ-24-PA- 781 from the opposite wrong direction in full speed as well as in rash and negligent manner and dashed with the Maruti Van and as a result thereof, the Maruti Van Turned turtle. Thus, the above cross examination clearly proves that the accident is the result of rash and negligent driving on the part of the Res. No. 1 Driver of Rickshaw Tempo. Further, in the present case, having gone through the Complaint Exh. 40, 41, Panchnama of Place of Accident at Exh. 41 and 45 and Charge Sheet at Exh. 43, it clearly proves that the accident is the result of rash and negligent driving on the part of the Res. No. 1 driver of Rickshaw Tempo. Moreover, in the present case, the Res. No. 3 Insurance Company has not examined the Res. No. 1 driver of Rickshaw Tempo, who is the best person to exactly say as to how the accident took place and therefore, in absence of such material evidence on record, an adverse inference is required to be drawn against the Respondents and thus, in view of the above facts and evidence on record, this tribunal 14 is of the view that the accident is the result of rash and negligent driving on the part of the Res. No. 1 driver of Rickshaw Tempo and therefore, this tribunal decides Issue No. 1 accordingly."

13. Learned advocate Mr. Rathin Raval has failed to point out any other aspect, which has not taken into consideration by the learned Tribunal while assessing the point of negligence. In these circumstances, as far as submission to consider the negligence of deceased Amrutbhai is concerned, it fails.

14. While dealing with two other submissions of learned advocate Mr. Rathin Raval, it is to be noted that the vehicle, which was plying was rickshaw, which falls within the definition of LMV. Section 2(21) of the Motor Vehicle Act, 1988 indicates that if the unladen weight of the vehicle is less than 7500 kg, the

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driver is not required to obtain separate licence to ride transport vehicle. Learned advocate Mr. Raval would submit that the issue of riding LMV without obtaining separate licence to drive the transport vehicle is though decided in view of three Bench judgment of the Hon'ble Apex Court in case of Mukund Dewangan Vs. Oriental Insurance Company Limited reported in (2017) 14 SCC 663. Same is referred for examining its correctness to larger bench. Thus, since there is doubt raised in proportion of law laid down in case of Mukund Dewangan (supra), it is to be held that rickshaw driver was not holding valid and effective driving licence. The law at present emanating from the case of Mukund Dewangan (supra) operates the issue raised by learned advocate Mr. Raval, it squarely held that if the driver is driving the LMV having unladen weight of 7500 kg, he is not required to obtain separate endorsement to drive the transport vehicle on a licence. Thus, this submission does not survive and accordingly, it is negated.

15. The submission of learned advocate Mr. Rathin Raval with regard to not holding the permit qua rickshaw is concerned, again it is misconceived to be raised at this juncture, more particularly, in absence of leading necessary evidence before the learned Tribunal, by calling officers from the concerned RTO.

16. In view of above reasons, both the appeals, which were filed on above three counts, fail. The appellant - insurance company does not make out case to interfere with the impugned judgment and award .

17. Resultantly, both the appeals fail and are accordingly

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dismissed. Interim relief, if any, stands vacated forthwith.

18. The amount of compensation, if any, is deposited before this Court pursuant to the interim order, with accrued interest are transmitted to the concerned learned Tribunal for the disbursement as per the settled provisions of law. The disbursement shall be made strictly in terms of the RTGS or NEFT.

(J. C. DOSHI,J) SHEKHAR P. BARVE