Gujarat High Court
New India Assurance Co. Ltd vs Nirmalaben Ghanshyambhai Bhatiya on 20 November, 2024
NEUTRAL CITATION
C/FA/5303/2007 JUDGMENT DATED: 20/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5303 of 2007
With
R/CROSS OBJECTION NO. 14 of 2009
In
R/FIRST APPEAL NO. 5303 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
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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NEW INDIA ASSURANCE CO. LTD.
Versus
NIRMALABEN GHANSHYAMBHAI BHATIYA & ORS.
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Appearance:
MS E.SHAILAJA(2671) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,4,5
RULE NOT RECD BACK for the Defendant(s) No. 2,3,7
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 20/11/2024
ORAL JUDGMENT
Aggrieved and dissatisfied with the judgment and award dated
13/04/2007 rendered in MACP NO.692 of 1997 by the MACT, Surat, the
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C/FA/5303/2007 JUDGMENT DATED: 20/11/2024
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appellant - insurance company has preferred the captioned First Appeal.
Whereas, seeking enhancement in the amount of compensation, the
claimants has preferred the captioned Cross Objection.
2. The short facts of the case are that while the deceased -
Ghanshymbhai was travelling in the jeep car of his relatives bearing
Registration No.GJ-5-FF-2186 on 13/04/1997 at about 4:30 p.m., while
going from Selvasa to Surat on the National Highway No.8, at that time,
the truck bearing registration No.GJ-19-J-0318 driven by the opponent
no.1 in rash and negligent manner and dashed with the jeep car where the
deceased was died on account of this accident. Thereafter, the claim
petition seeking compensation of Rs.6,00,000/- is filed by the heirs of the
deceased and the tribunal after considering the oral as well as
documentary evidence has granted compensation of Rs.4,06,000/- with
interest at the rate of 7.5% from the date of filing of the petition till its
realization.
3. Learned Advocate Ms. Shelja appearing for the appellant insurance
company would submit that tribunal while appreciating the extract of
RTO produced at Exh.31 indicates that driver of the offending vehicle
was having endorsement of driving heavy goods vehicle with effect from
21/05/1996 which was later to the date of the accident. She would further
submit that since this is a date from the document, other document is not
required to be proved with any supporting evidence. She would submit
that in view of Exh.31 it is proved on record that driver of the offending
vehicle was not holding valid and effective licence to ply heavy goods
vehicle on the date of road accident i.e. 13/04/1997. She would further
submit that tribunal since failed to appreciate this aspect committed
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serious error in fastening liability on the insurance to pay the
compensation in the capacity of being vicariously liable. Upon above
submissions, she would submit to allow this appeal.
4. On the other hand, learned advocate Mr.Modi appearing for the
claimant to meet with the submissions of learned advocate for the
appellant that driver of the offending vehicle was not holding effective
and valid driving licence on the date of the accident would argue that
insurance company has not led evidence of the driver or owner of the
vehicle to prove that despite the owner was knowing that the driver was
not holding endorsement to ply the heavy goods vehicle on the date of
accident yet permitted the driver to ply the vehicle on the road. In absence
of such evidence, he would submit that merely extract of Exh.31 without
having proved by leading evidence cannot be established that the driver
was not possessing the skill to drive the offending vehicle which leads to
breach of any terms and conditions of the policy and therefore he would
submit that no such error is committed by the tribunal in reaching to the
conclusion that the insurance company is liable to pay the compensation.
5. Insofar as the cross objection filed by the claimant is concerned,
learned advocate Mr.Modi appearing for the claimant would submit that
tribunal has not awarded the compensation in view of the decision of
Sarla Verma versus Delhi Transport Corporation reported in (2009) 6
SCC 121 which has been reiterated in the case of National Insurance
Company Ltd. Vs. Pranay Shethi reported in (2017) 16 SCC 680. He
would further submit that tribunal has not granted compensation for the
prospective income and erred in deducting the personal and pocket
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C/FA/5303/2007 JUDGMENT DATED: 20/11/2024
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expenses at 1/3rd which should be 1/4th in view of number of dependency.
He would further submit that application of multiplier is incorrect since it
would be 16 instead of 15 and other non-pecuniary heads would also
require to be granted in view of Pranay Shethi (supra). By making this
submission, he would submit to dismiss the appeal filed by the insurance
company and to allow the cross objection and to enhance the amount of
compensation.
6. Heard the learned advocates appearing for the respective parties
and perused the R & P. The sole argument of the learned advocate for the
appellant - insurance company is that since by producing Exh.31, the
insurance company has proved that on the date of accident, the driver of
the offending vehicle was not holding endorsement to drive the heavy
goods vehicle and thus it is the case and situation of having no licence on
the date of accident. What could be discerned from the record that
insurance company did not lead any oral evidence to support Exh.31.
Thus, the entire case of the insurance company is on the ground that the
extract from the RTO and examination the RTO Officer at Exh.30 is
sufficient to establish the breach of the terms and conditions of the policy.
A beneficial reference can be made to the decision in case of National
Insurance Company Limited Through Authorised Signat Versus Patel
Maganhbai Keshubhai Devda [2024 (0) ACJ 941] where in the similar
fact situation, the co-ordinate Bench has dealt with the said issue and held
in paragraph 9 and 10 as under:
"9. So far as, defence of driving licnece as raised above is
concerned, the issue is not res integra. The claimant injured is the
third party so far as opposite vehicle is concerned. It is beneficial
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to refer the judgement of the Apex Court in the case of National
Insurance Co. Ltd. vs Swaran Singh and others, (AIR 2004 SC
1531, wherein thethe Apex Court categorically held that mere
absence, fake or invalid DL for driving at relevant time are not
themselves defence available to the Insurance Companies against
the third parties. It was further observed that to avoid the liability
towards the insured, the Insurance Company has to prove that the
owner, insured was guilty of negligence and failed to exercise
reasonable care in the matter fulfilling the condition of the policy
regarding use of vehicle by duly licence. In the case of Mukund
Dewangan vs. Oriental Ins. Co.Ltd., (2017 ACJ 2011, the Apex
Court held that the LMV as defined would include a class of
transport vehicle as per the weight prescribed in section 2 (21) of
the Act and, therefore, no separate endorsement on the licence is
required to drive a transport vehicle.
10. In light of the settled position of law, and considering the
peculiar facts and circumstances of the present case, the insurer
appellant failed to establish the fact that the breach was committed
by the insured. Unless and until the breach is not established, the
insurance company cannot escape from its liability to pay the
amount of compensation. Thus, therefore, merely, adducing the
evidence of RTO, is not sufficient to establish the breach of the
policy condition as nothing brought on record to show that the
insured was having knowledge about the licence possessed by the
driver and despite of this, he permitted the driver to drive the
vehicle. Thus, the present appeal fails on two counts, one is onus
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having not been discharged by the Insurance company that there
was a breach of policy condition by the insured and as per the
judgement of the Apex Court in Mukund Dewangan (supra) the
unladen weight of the vehicle exceeds 7,500 kgs. and in that view
of the matter, no separate endorsement on the licence is required
to drive the transport vehicle of light motor vehicle class."
7. Therefore the contention raised by the insurance company is
squarely covered by the above finding. The insurance company cannot
escape from the liability to pay the compensation on the ground that
evidence of the RTO is produced to establish the breach of terms and
conditions of the policy. The insurance company is required to prove that
it was within the knowledge of the insured that the licence possessed by
the driver of the offending vehicle is insufficient to ply the said vehicle.
Thus, on above finding, the appeal filed by the insurance company lacks
merit and deserves no consideration. Accordingly, the appeal is
dismissed.
8. Insofar as the cross objection filed by the claimant is concerned, if
we go through the calculation made by the tribunal to grant just and fair
compensation, the tribunal has not granted prospective income and
deduction of 1/3rd is applied instead of 1/4th, as also in view of number
of dependents, the multiplier of 17 is to be applied instead of 16 as the
age of the deceased was in the range of 25 to 30 years. To be noted
further that, no compensation for loss of consortium either for spouse or
filial or parental is granted and therefore it is require to be granted, as also
the compensation for loss of estate and funeral is required to be granted
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C/FA/5303/2007 JUDGMENT DATED: 20/11/2024
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in view of decision in case of Pranay Shethi (supra). Thus, re-
computed compensation is required to be granted.
9. Therefore, total compensation would be as under, which the
claimants/s is/are entitled to get.
Particulars Amount (Rs.)
Future dependency Loss 6,42,600/-
Loss of consortium 2,42,000/-
Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Total... 9,20,900/-
Less: compensation already awarded 4,06,000/-
Additional amount which is awarded 5,14,900/-
10. Therefore, I hold that the claimantss are entitled to get the
enhanced compensation of Rs.5,14,900/-/- with 7.5% p.a. interest from
the date of filing the claim petition till its realisation, which would meet
the ends of justice. Rest of the direction(s) of the Tribunal remain same.
8. For the reasons recorded above, the following order is
passed.
8.1 The present appeal is partly allowed.
8.2 The Insurance Company is directed to deposit the enhanced
amount with interest as stated herein above within a period of six weeks
from the date of receipt of this order.
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8.3 The Tribunal shall disburse the entire awarded amount lying
in the FDR and/or with the Tribunal, with accrued interest thereon, if any,
to the claimantss, by account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure.
8.4 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI,J)
sompura
