Oriental Insurance Co Ltd vs Pritiben @ Ushaben Arunbhai ...
2023 Latest Caselaw 2687 Guj

     C/FA/2391/2010                               JUDGMENT DATED: 31/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2391 of 2010


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 ?

==========================================================
                   ORIENTAL INSURANCE CO LTD
                              Versus
       PRITIBEN @ USHABEN ARUNBHAI CHATURVEDI & 3 other(s)
==========================================================
Appearance:
MS.MASUMI NANAVATI, ADVOCATE FOR MR VIBHUTI NANAVATI(513)
for the Appellant(s) No. 1
MR . VIVEK PHAMARE, ADVOCATE FOR MG NAGARKAR(496) for the
Defendant(s) No. 1,2,3,4
MR VIVEK V BHAMARE(6710) for the Defendant(s) No. 1,2,3,4
==========================================================
    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                              Date : 31/03/2023

                             ORAL JUDGMENT

1. The appellant- The Oriental Insurance Company Ltd. has

preferred this appeal u/s. 173 of the Motor Vehicles Act, 1988

(hereinafter referred to as "the Act"), being aggrieved and

C/FA/2391/2010 JUDGMENT DATED: 31/03/2023

dissatisfied by the judgment and award passed by the Motor

Accident Claims Tribunal (Aux.), Court No.14, Ahmedabad

(hereinafter referred to as "the Tribunal") in M.A.C.P. No.181 of

1988, on 24.2.2010

2. The brief facts of the case that emerge from the record

of the appeal are as under:-

2.1 That, on 30.9.1987, at about 00.30 hours in the night, (i.e.

12.30 hours on 29.9.87) the deceased was returning on

Motorcycle No. GBX-4888 driven and owned by her

brother the opponent No.1, as a pillion-rider after

watching "Navratri Garba", and when they were passing

near Shree Cinema on Ashram Road, at that time, three

cyclists were driving in a zig-zag manner and all of a

sudden went across the road possibly intending to go

towards Mithakhali underbridge and on seeing them, the

opponent No.1 suddenly applied the brakes as a result of

which both of them were flung away from the motorcycle.

The opponent No.1 was thrown in front of the motorcycle,

whereas the deceased was flung towards the west and

C/FA/2391/2010 JUDGMENT DATED: 31/03/2023

dashed with the grill-railing in the middle of the road. In

the said accident, both of them sustained serious bodily

injuries and they were shifted to V.S.Hospital and

admitted as indoor patients, and during the course of

treatment, the minor victim ultimately succumbed to her

injuries.

2.2 The FIR was lodged at Navrangpura Police Station being I-

CR No.835 of 1987 and the claim petition was filed under

Section 166 of the Act claiming compensation of

Rs.8,50,000/-. It was the case of the original claimant that

the accident occurred due to sole negligence on the part

of the driver of the motorcycle driven by its driver and

owned by the opponent No.1 and the motorcycle being

insured with the opponent No.2 -the Oriental Insurance

Company Ltd. Both the opponents are jointly and severally

liable to pay the amount of compensation.

3. The Tribunal, after appreciating the evidence on record,

came to the conclusion that the prospective income of

C/FA/2391/2010 JUDGMENT DATED: 31/03/2023

the deceased was Rs.3000/- (Rs.2000/- + Rs.4000/- =

Rs.6000/- divided by 2 ) per month and the income of the

deceased was assessed at Rs.3000/- per month at the

time of accident, and after deducting ½ of that amount as

pocket expenses, the remaining amount of Rs.1500/- per

month would go to the benefit of dependents and yearly,

it comes to Rs.18,000/- . The learned Tribunal concluded

the age of the deceased and the age of the parents of the

deceased and by adopting the multiplier of 12 held that

the applicants were entitled to get Rs.2,16,000/- and

added the standard conventional figure of Rs.20,000/- for

loss of expectancy of life, as per the decision of Division

Bench of this Court in the case of Suryaben

Harisingbhai Balval Vs. Atullakhan Mehtabkhan

Lalkhan Pathan reported in 2001(3) GLR 2029, and

Rs.5,000/- towards funeral expenses as per the recent

decision of Hon'ble Apex Court in the case of UP State

Road Transport Corporation Vs.Trilokchand reported in

1996 (2) GLB 11, and awarded a total amount of

Rs.2,41,000/- to the applicants. Thus, the Tribunal, while

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partly allowing the claim petition, awarded a sum of

Rs.2,41,000/- with 7.5% interest from the date of filing of

the claim petition till its realization.

4. Being aggrieved and dissatisfied by the said judgement

and award, the appellant -Insurance Company has

preferred the present appeal mainly contending that the

learned Tribunal has not considered the fact that the

Insurance Company had served a notice to the opponent

No.1 to supply the copy of his driving licence, R.T.O.Book,

purchase Bill of the vehicle and copy of his School Leaving

Certificate and the opponent No.1 has failed to respond to

the said notice. That on the date of the accident, the

opponent No.1 was a minor and not eligible even to hold

a learner's licence and the learned Tribunal has failed to

appreciate these facts. Hence, the present appeal be

allowed and Insurance Company be exonerated from

paying any amount of compensation to the claimants.

5. Heard Ms. Masumi Nanavati, learned advocate appearing

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for Mr.Vibhuti Nanavati, learned advocate for the

appellant - Insurance Company and Mr.Vivek Bhamare,

learned advocate appearing for Mr. M.G.Nagarkar,

learned advocate for the respondents - original

claimants.

6. Ms. Masumi Nanavati, learned advocate appearing for

the appellant-Insurance Company has contended that the

impugned judgement and award passed by the tribunal is

against the law and evidence on record and the learned

Tribunal has misread and misconstrued the oral and the

documentary evidence on record. That, the learned

Tribunal has not framed the proper issues for

determination and has failed to appreciate the fact that

opponent No.1 was a minor at the time of the accident

and was not eligible even to hold a learner's license and

that the policy was obtained from the company by

suppressing all these facts. That, the learned Tribunal has

failed to appreciate the fact that having stated the age of

the applicants in the cause title, the applicants have

C/FA/2391/2010 JUDGMENT DATED: 31/03/2023

deliberately not stated the age of opponent No.1 which

would support the case of the insurance company that he

was not eligible to hold a driving license being a minor

and the learned Tribunal failed to appreciate that in the

peculiar facts and circumstances of the present case, the

appellant has suppressed the important material facts .

That, the learned Tribunal has failed to appreciate that

this is a case where the appellant who only could have

proved the factum of negligence, have deliberately not

adduced the proper available and best evidence with

them and hence, the negligence in this case is not proved.

That, the learned tribunal has also failed to appreciate

the contention of the Insurance Company that the

opponent No.1 ( the son of the applicant Nos. 1 and 2 )

and brother of the deceased who is the tort feasor was not

eligible to hold even a learner's licence and in fact did not

hold one was not rebutted by the appellant and hence, on

the aforesaid ground, Ms.Nanavati, learned advocate has

contended that the appeal be allowed as prayed for.

C/FA/2391/2010 JUDGMENT DATED: 31/03/2023

7. Mr.Vivek Bhamare, learned counsel appearing for the

respondents - original claimants has opposed the appeal

and has contended that though the original claimants

have suffered serious injuries in the accident, no

prospective income is granted and learned Tribunal has

rightly awarded the compensation amount to the tune of

Rs.2,41,000/- and the appeal being meritless, deserves to

be dismissed.

8. This Court has perused the record and proceedings of

M.A.C.P No. 181 of 1988 and it would be appropriate to

refer to certain documents on record. The issues have

been framed by the learned Tribunal at Exh.60 and the

affidavit of the claimant No.1 - Smt. Pritiben alias Ushaben

Arunbhai Chaturvedi has been filed at Exh. 61 and the

learned advocate for the Insurance Company has cross-

examined the claimant No.1 wherein, she has stated that

she is not an eye witness to the accident and her

daughter passed away in the hospital. That, she has

submitted the documents of her daughter's educational

C/FA/2391/2010 JUDGMENT DATED: 31/03/2023

qualification on record and at the time of the accident her

son was driving the motorcycle. Besides this no other fact

has been challenged by learned advocate for the

Insurance Company and there is no suggestion as to

whether the opponent No.1 who is son of the claimant

No.1 had any driving licence on the date of accident. The

learned advocate for the appellant-Insurance Company

has mainly contended that at the time of accident, the

opponent No.1 was minor and did not possess any driving

licence and being a minor could not hold even a learner's

licence. Mr.Vivek Bhamare, learned advocate for the

opponents has submitted on record a copy of the Birth

Certificate of the opponent No.1 and on perusal, it

appears that the date of birth of the opponent No.1 is

shown as 8.3.1969. The learned advocate for the

opponents has also submitted a copy of the Smart Card,

Driving Licence of the opponent No.1 and on perusal, it

appears that the opponent No.1 had driving licence

bearing No. GJ01/092794/09 which has been issued on

15.4.1987 and the type of vehicles shown are MCE5G and

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LMV. That, in the Smart Card, the date of birth of the

Opponent No.1 is shown as 8.3.1969 and on on perusal

of these documents, it transpires that the accident had

occured on 30.9.1987 at about 00.30 hours in the night

and date of birth of opponent No.1 is 8.3.1969 and hence

on the date of accident, the opponent No.1 was aged

about 18 years and 6 months and he possessed driving

licence No. GJ01/092794/09 and same was issued on

15.4.1987.

9. In view of this fact that have come on record as the main

contention of the learned advocate for the appellant is

that the opponent No.1 was a minor on the date of

accident and did not possess a valid driving licence, is

negatived and there is no other contention with regard to

the other findings of the learned Tribunal. Hence, the

present appeal stands dismissed and the order passed by

the learned Motor Accident Claims Tribunal (Aux.), Court

No.14, Ahmedabad in M.A.C.P. No.181 of 1988, dated

24.2.2010 stands confirmed. As the original claim petition

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is registered on 29.3.1988 and decided on 24.2.2010 and

the appellant- Insurance Company has deposited the

entire amount with the Tribunal out of which 30% has

been withdrawn by the opponents the remaining 70% of

the amount with interest be paid to the opponents after

due verification. The record and proceedings be

transmitted back to the concerned Tribunal forthwith.

There shall be no order as to costs. Rule stands

discharged.

(S. V. PINTO,J) BEENA SHAH