United India Insurance Company ... vs Kirankumar Chandulal Parmar
2023 Latest Caselaw 7117 Guj

                                                                                     NEUTRAL CITATION




     C/FA/2877/2019                                JUDGMENT DATED: 27/09/2023

                                                                                     undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2877 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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

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 ?

==========================================================
                 UNITED INDIA INSURANCE COMPANY LTD.
                                 Versus
               KIRANKUMAR CHANDULAL PARMAR & 1 other(s)
==========================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 27/09/2023

                              ORAL JUDGMENT

[1] The challenge is given by the insurance

company to the judgment and award dated

20.9.2017 passed by the MACT (Aux), Ahmedabad

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

City, Ahmedabad in MACP no.317/2012. Primarily

the grounds raised inter-alia state that the

Tribunal has erroneously laid down the

liability of payment of money on the insurance

company since the certificate issued by RTO of

the driving license of the insured three

wheeler transport vehicle of owner-cum-driver,

supported by the evidence of the RTO proves

that the driver of the transport vehicle was

holding license to drive only non-transport

motorcycle with gear and had no authority to

drive transport vehicle on the date of the

accident. Further, the compensation under the

head of future loss of income is erroneous

since has not suffered any loss because of the

physical disability of 9%.

[2] The notice was served to the other side. The

claimant was also served, but has failed to

appear in person nor is he represented by any

lawyer on record.

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

[3] Mr. Maulik J. Shelat, learned advocate for the

insurance company referring to the judgment in

the case of National Insurance Company Limited

v. Navalsinh Ramsinh Bariya rendered in First

Appeal no.3556/2005 dated 2.9.2014 and in the

case of Vimlaben Vinodchandra Modi v. Rabari

Chinubhai Amrabhai rendered in First Appeal

no.2217/2018 dated 28.9.2018, submits that

when the claimant has not been degraded

because of the physical disability in his

service and when there is no loss of income,

then no amount should be granted under the

said head. Mr. Shelat also referred to the

judgment in the case of Raj Kumar v. Ajay

Kumar & Anr., reported in (2011) 1 SCC 343 to

support his contention that if the claimant

continues in his service, then no amount

should be granted under the head of loss of

future income while has been adequately

compensated under the head of pain, shock and

suffering in the ratio of the physical

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

disability sustained by him.

[4] The Hon'ble Apex Court in the case of Raj

Kumar v. Ajay Kumar & Anr., reported in (2011)

1 SCC 343 has observed as under:-

"10. Ascertainment of the effect of

the permanent disability on the

actual earning capacity involves

three steps. The Tribunal has to

first ascertain what activities the

claimant could carry on in spite of

the permanent disability and what

he could not do as a result of the

permanent ability (this is also

relevant for awarding compensation

under the head of loss of amenities

of life). The second step is to

ascertain his avocation, profession

and nature of work before the

accident, as also his age. The

third step is to find out whether

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

(i) the claimant is totally

disabled from earning any kind of

livelihood, or (ii) whether in

spite of the permanent disability,

the claimant could still

effectively carry on the activities

and functions, which he was earlier

carrying on, or (iii) whether he

was prevented or restricted from

discharging his previous activities

and functions, but could carry on

some other or lesser scale of

activities and functions so that he

continues to earn or can continue

to earn his livelihood."

[5] Mr. Shelat further stated that in case of

Oriental Insurance Company Ltd. v.

Zaharulnisha & Ors., reported in (2008) 12 SCC

385, the law has been declared that if the

person drives totally different class of

vehicle which he has not been authorized by

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

any endorsement for an effective license to

drive on the date of the accident, then it

would be the case of violation of Section

10(2) of the Motor Vehicles Act and thus, the

insurance company would not be liable to pay

the compensation.

[6] The case of the claimant as was urged before

the Tribunal was that on 19.12.2011 at 11:30

noon, the claimant was proceeding from

Gomtipur to Asarva by riding on a motorcycle

bearing registration no. GJ-1 ND-282. When he

had reached near Shriji weigh bridge near

Gandhi Vidyalaya, a rickshaw bearing

registration no. GJ-1 CV-6592 came from

opposite direction in a rash and negligent

manner and in excessive speed and the loading

rickshaw collided with the motorcycle and

knocked him down. As a result, he sustained

injuries.

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

During the course of trial, he examined

himself at Exh.25 and the insurance company

examined RTO officer - Dushyantsinh Natvarsinh

Jadeja at Exh.38.

[7] FIR was produced at Exh.30. Panchnama of the

place of accident at Exh.31. True copy of the

injury certificate was produced by the

claimant at Exh.32 and disability certificate

at Exh.34. A purshis was produced at Exh.42 to

consider the disability for the body as a

whole at 9%.

[8] The claimant's salary slip of October,

November and December, 2011 were put at

Exhs.27 to 29 respectively. The insurance

policy of the loading rickshaw bearing

registration no. GJ-1 CV-6592 was placed on

record at Exh.33, certificate issued by RTO

regarding the driving license of opponent no.1

was produced on record at Exh.41 and the

photocopy of the R.C. book of the rickshaw at

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

Exh.42.

[9] The learned Tribunal while considering the

negligence aspect in the Panchnama considered

that the road was 80 mtr. in width and the

place of accident was busy road of Ahmedabad

city. The front portion of the motorcycle was

found damaged, lying on the road and thus, the

learned Tribunal considered from the situation

of the place of accident to make it clear that

the rickshaw had not given safe passage to the

ongoing motorcycle, on which the claimant was

riding, and, further the opponent no.1-

rickshaw driver has not stepped into the

witness box and rebutted the facts deposed by

the claimant and thus, the learned Tribunal

has considered sole negligence on the part of

the opponent no.1 rickshaw driver.

[10] The claimant, to prove the disability, has

produced the injury certificate and the

disability certificate issued by Dr. Aditya

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

Upadhyay and by way of purshis, both the sides

had declared consent to consider 9% disability

for the body as a whole. At the time of the

accident, the claimant was 47 years old. The

evidence on record shows that he was working

as packer in Gujarat State Board of School

Text Books, Gandhinagar. His monthly total

gross salary as per the evidence by way of pay

slip was observed to be Rs.16,965/-. The

learned Tribunal had considered the permanent

nature of the claimant's employment and had

also appreciated the admission in the cross-

examination at Exh.25 that after the accident,

when he resumed his service, he was not given

light work nor had he lost his promotion

because of the injury and there is no

diminution in his earning capacity during his

service period because of the accident.

Inspite of that, the learned Tribunal referred

the case of State of Gujarat v. Somabhai

Dhurabhai, reported in 1993 (2) GLR 1043 and

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

considering his monthly income Rs.16,965/-,

applying multiplier of 5 with the physical

disability of 9%, granted him Rs.91,611/- as

future loss of income. The judgment relied

upon by the learned Tribunal was the case of

State of Gujarat v. Somabhai Dhurabhai

(supra). The said judgment now looses its

force, after the law propounded in Raj Kumar

(supra), wherein it has been held by the

Hon'ble Supreme Court that no compensation

under the head of loss of future earning

should be awarded if the claimant continues in

his service and if the claimant is not reduced

in his position in his service. In the present

case, the claimant has admitted that he has

continued in his service. After the accident,

there was no diminution in his income. He has

not suffered any loss of income. Thus, this

Court considers that in view of the settled

proposition of law laid down in the case of

Raj Kumar (supra), the physical disability has

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

not affected the earning capacity and the

physical disability has not prevented him or

restricted him from discharging his activities

and function, but could carry on the same in

the same scale to earn the same income and

there would not be any loss of future earning.

Hence, this Court is of the view that the

amount granted towards future loss of income

is not supported by the evidence on record

where the admitted position is that the

claimant had continued in his job without any

loss of income where he has further admitted

that he has received increase in his salary.

Thus, this Court is of the view that the

claimant would not be entitled to any amount

under the head of future loss of income. Thus,

the order passed of granting Rs.91,611/-

towards future loss of income stands quashed

and set aside.

[11] However, following the proposition as laid

down in the case of Raj Kumar (supra), the

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

claimant can be compensated for the loss of

amenities for life. Here the learned Tribunal

has granted amount of Rs.10,000/- under the

head of pain, shock and suffering as well as

loss of amenities of life. This Court

considers that since the claimant had suffered

fracture, he may have suffered pain and thus,

taking the said fact of injury under the head

of pain, shock and suffering and including

loss of amenities of life, the amount of

Rs.20,000/- would be sufficient and an amount

of Rs.5,000/- for medical, special diet,

attendant and transportation is just and

proper. Hence, in the result, the claimant

would be entitled to total amount of

compensation of Rs.25,000/-.

[12] The learned Tribunal while considering the

liability aspect has found opponent no.1

solely liable for the accident. The insurance

company has raised the issue that the driver

of the loading rickshaw was not holding valid

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

driving license to drive 3 wheeler goods

vehicle which is in breach of the policy

condition. Hence, the insurance company was

not liable to indemnify. To support the

contention, the insurance company had examined

Dushyantsinh Natvarsinh Jadeja, RTO officer at

Exh.38 and the learned Tribunal considering

the oral evidence and perusing the certificate

of license issued by RTO authority, Ahmedabad

found that opponent no.1 was holding transport

vehicle license valid from 14.3.2007 to

19.8.2024. Learned advocate Mr. Shelat has

drawn attention of this Court towards Exh.41

which is information of the smart card driving

license. Mr. Shelat has drawn attention to

submit that the document has been misread by

the Tribunal where actually the smart card

driving license is for the motorcycle and

specifically validity for non-transport

vehicle is from the date of issuance on

14.3.2007 till 19.8.2024. Mr. Shelat referring

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

to the document at Exh.41 submits that the

column for transport vehicle is vacant, where

there is no such endorsement and further the

very document Exh.41 is in relation to

motorcycle while here the involved vehicle is

loading rickshaw. Mr. Shelat also referred to

the deposition of the RTO officer who has

clarified the said aspect that the vehicle

involved is a rickshaw with registration no.

GJ-1 CV-6592 while the document Exh.41 is for

the type of vehicle MCE5G which was issued in

the name of opponent no.1 - Parshottambhai

Girdharilal Khatik.

[13] The learned Tribunal thus has committed an

error in analyzing and appreciating the

documents on record, where the driving license

on record is with respect to the motorcycle

and the very document Exh.41 does not bear any

endorsement for the transport vehicle while

R.C. book shows the ownership of the loading

rickshaw in his name, but the document Exh.41

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

regarding the smart card driving license does

not show the authorization to drive the

loading rickshaw as the transport vehicle.

Section 10 of the Motor Vehicles Act deals

with the form and contents of license to

drive. While Section 10(2) provides that

driving license shall be expressed as

entitling the holder to drive a motor vehicle

of one or more of the classes named in sub-

section (2) of Section 10 wherein the classes

have been categorized from (a) to (j) where

transport vehicle is a different class than

the motorcycle.

[14] In the case of Zaharulnisha (supra), it has

been observed in Paragraph 21 as under:-

"21. In the light of the above settled proposition of law, the appellant insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

effective licence to drive the vehicle on the day of accident. The scooterist was possessing a driving licence of driving HMV and he was driving a totally different class of vehicle, which act of his is in violation of Section 10(2) of the MV Act."

[15] Here in this case, opponent no.1 was not

holding the driving license to drive the

transport vehicle which is a loading rickshaw

involved in the accident. The RTO officer

examined on record had got the details of the

license issued in favour of the opponent no.1

from the RTO office and according to his

evidence, he was holding license for two

wheeler from 14.3.2007 to 19.8.2024 and had

clarified that the opponent no.1 was not

having any license to drive three wheeler

apart from two wheeler and that there had been

no application in his office for any transfer

of the license in any other office or other

States. He has referred to R.C. book which he

affirmed, that it was with regard to auto

rickshaw, which will be transport vehicle and

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

has clarified that a person should have a

license to drive three wheeler transport

vehicle while Exh.41 does not show the

authorization. Exh.41 is smart driving license

details which shows that opponent no.1 has no

valid driving license to drive three wheeler

transport vehicle which was in his ownership

as proved by the document at Exh.42-R.C. Book

on record. In view of the same, the insurance

company cannot be made liable to pay the

compensation as there is breach of policy

condition. Thus, the order passed by the

Tribunal laying the liability on the insurance

company along with opponent no.1 requires

modification of 'pay and recover' as insurance

company hereby stands exonerated.

[16] It is submitted by Mr. Shelat that total

amount has been deposited in compliance of the

order dated 27.2.2020 of this Court.

NEUTRAL CITATION

C/FA/2877/2019 JUDGMENT DATED: 27/09/2023

undefined

[17] Hence, in the result, the insurance company to

pay an amount of Rs.25,000/- along with the

accruing interest therein to the claimant and

rest of the amount of Rs.81,611/- be remitted

back to the insurance company where the

insurance company is authorized to recover the

said amount paid to the claimant by way of

execution proceedings from the original

opponent no.1 - Parshottambhai Girdharilal

Khatik.

[18] The impugned judgment and award be modified

accordingly. The appeal is disposed of

accordingly. Registry is directed to send the

record and proceedings back to the Tribunal,

if received.

(GITA GOPI,J) Maulik