Gujarat High Court

United India Insurance Co. Ltd vs Rudiben Punjabhai Bhut (Patel) L.H. And ... on 6 September, 2024

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                             C/FA/3339/2018                                 JUDGMENT DATED: 06/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/FIRST APPEAL NO. 3339 of 2018
                                                              With
                                                R/CROSS OBJECTION NO. 17 of 2020
                                                               In
                                                 R/FIRST APPEAL NO. 3339 of 2018

                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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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                                      UNITED INDIA INSURANCE CO. LTD.
                                                    Versus
                         RUDIBEN PUNJABHAI BHUT (PATEL) L.H. AND REPRESENTATIVES OF
                                               DECD. & ORS.
                       ==========================================================
                       Appearance:
                       MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
                       MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
                       MR. HEMAL SHAH(6960) for the Defendant(s) No. 1,2,3,4,5
                       RULE SERVED for the Defendant(s) No. 6
                       ==========================================================

                           CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                        Date : 06/09/2024

                                                        ORAL JUDGMENT

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1. The present appeal is filed by the appellant - Insurance

Company under Section 173 of the Motor Vehicles Act and

the cross-objections are filed by the claimants being aggrieved

by and dissatisfied with the judgment and award dated

27.12.2017 passed by the Motor Accident Claims Tribunal

(Main), Rajkot in Motor Accident Claim Petition No.1240 of

2009, by which, the Tribunal has partly allowed the claim

petition by awarding Rs.2,05,000/- with 9% p.a. interest to be

paid to claimant/s, by holding opponents liable, jointly and

severally.

2. The facts of the present appeal are as under :

2.1 The claim petition was filed by the claimants

stating that on 20.7.2009, the deceased Punjabhai was driving

his bicycle in slow speed and when he was passing on

Kalavad-Rajkot highway road, at that time, the driver of the

offending vehicle Dumper No.GJ.3AT.4616 came by driving his

vehicle in a full speed and in rash and negligent manner

endangering human life and dashed his vehicle with the

bicycle of the deceased and as a result of the same, the

deceased sustained serious injuries and succumbed to the

same. Therefore, the claimants filed the claim petition for

compensation.

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2.2 The notices were served to the opponents. The opponent

no.2-insurance company has filed its written statement. The

issues were framed by the Tribunal. Oral as well as

documentary evidence were led before the Tribunal. After

hearing the submissions made by the rival parties, the

Tribunal has partly allowed the claim petition(s) and awarded

compensation as noted above.

2.3 Hence, the insurance company has filed the present

appeal before this Court and the claimants have filed the

cross-objections for enhancement.

3. Learned advocate for the appellant - Insurance

Company has assailed the impugned judgment and award on

the ground that the driver of the insured dumper was not

holding valid and effective driving licence on the day of

accident and therefore as the driver and owner have

committed fundamental breach of terms and conditions of

policy, as such insurance company has no liability. He

submitted that though the witness clearly deposed before the

learned Tribunal that the driver has not renewed his license

for HGV and HPV and at the time of accident, he was not

holding the valid and effective licence, the learned Tribunal

overlooked the said fact and proceeded further to hold the

opponent-insurance company liable to pay the compensation.

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He, therefore, submitted that the insurance company should

be exonerated from payment of compensation as there is a

clear-cut breach of conditions of the policy or in the

alternative, the order of pay and recover be passed.

4. Per contra, learned advocate for the original claimants has submitted that the impugned judgment and award is just

and proper and not required to be interfered with. He submitted that the ground taken by the appellant-insurance

company that the driver of the truck was not having a valid

licence has been discussed in detail and thereafter passed the

impugned judgment and award. He, therefore, submitted that

the appeal deserves to be dismissed.

5. On the point of quantum, learned advocate for the claimants has argued in the cross-objections that the learned

Tribunal has erred in considering the income of the deceased

at Rs.3,000/- whereas the prevailing minimum wages at the

time of accident i.e. in the year 2017, is Rs.3,800/-. Further,

the compensation under the heads of loss of estate, funeral

expenses, loss of consortium is required to be enhanced in

view of the judgments of the Hon'ble Apex Court in the

cases of National Insurance Company Ltd. V/s Pranay Sethi

& Ors. reported in (2017)16 SCC 680. He, therefore,

submitted to allow the cross-objections by enhancing the

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amount of compensation.

6. As against this, learned advocate for the opponent-

insurance company has submitted that the amount awarded

cannot be said to be on higher side, however, appropriate

order be passed in view of the facts and circumstances of the

case and the ratio laid down in the judgments of the Hon'ble

Apex Court.

7. I have considered the submissions made by the

respective parties. I have perused the record and proceedings.

I have gone through the impugned judgment and award

passed by the Tribunal. I have also considered the pleadings

of the parties before the Tribunal.

8. From the discussion of the learned Tribunal in

paragraph 26, it is observed that "in the present case on

hand, as discussed above, opponent Insurance Company has

established that the driving licence of driver to drive

transport vehicle was expired and his driving licence was not

renewed afterwards and he was not holding driving license to

drive transport vehicle at the time of accident, but the

Insurance Company has not proved by leading reliable

evidence that there was a willful breach on the part of the

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insured. Xxxx" This observation is arrived at by the learned

Tribunal after discussing the oral and documentary evidence

led before it in detail i.e. the insurance policy, the RTO

book, the deposition of the witness examined by the opponent

no.2-insurance company etc. When the said finding is arrived

at by the learned Tribunal, this Court is not discussing the

evidence in detail. However, it has to be mentioned here that

there is breach of conditions of the policy and therefore the

insurance company cannot be made liable to indemnify the

insured in such cases.

9. In the judgment in the case of Kempaiah V/s

S.S.Murthy reported in 2017 ACJ 1722, relied on by learned

advocates, it is held in paragraphs 11 and 12 as under:

"11. In National Insurance Co.Ltd. v. Swaran singh & Ors, (2004)3 SCC 297, this Court has, inter alia, observed as follows:

i) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its

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liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.

12. In paragraph 110(viii) of the report in Swaran Singh (supra), it has been also held that the same would be the position in case the driver of the offending vehicle had a learner's licence. The ratio of the law laid down by this Court in Swaran Singh (supra) is in consonance with the object behind the enactment of the Motor Vehicle Act, 1988. Taking into account the same and the decision of this Court in Swaran Singh (supra), we are of the view that in the facts of the present case the insurer-respondent No.2 (Oriental Insurance Company Ltd.) should be at liberty to recover the said amount from the owner of the lorry (transport vehicle). In doing so we have also taken note of the fact that the respondent no.1 (S.S.Murthy), the owner of the vehicle, despite service of notice has chosen not to appear before this Court."

10. In view of the above, the learned Tribunal ought

to have passed the order of `pay and recover' so that

claimants get their compensation timely and the interest of

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the insurance company is also protected. The appeal therefore

deserves to be allowed to that extent.

11. As far as the cross-objections are concerned, the learned

Tribunal has erred in calculating the income at a lesser rate

and it has to be considered at the prevailing minimum wages

on the date of accident, further the loss of consortium, loss

of estate and funeral expenses are required to be enhanced in view of the judgment of Pranay Sethi (supra) and

considering the age of the deceased and the number of

dependents on the deceased.

12. Therefore, the claimants are entitled to get the

compensation as follows.

                                                      Particulars                           Amount (Rs.)

                            Future Loss of Income                                                   1,71,100/-

Rs.3,800/- X 1/4th to be deducted towards

personal expenses and multiplying it with

12 and applying the multiplier of 5

Loss of Estate 18,150/-

                            Funeral Expenses                                                           18,150/-

                            Loss of consortium                                                      2,42,000/-







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                             C/FA/3339/2018                                      JUDGMENT DATED: 06/09/2024

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                            five dependents

                                                                              Total...               4,49,300/-

                            Less : Amount which is already awarded                                 2,05,000/-

                                      Additional amount which is awarded                           2,44,300/-

13. Therefore, I hold that the claimant/s are entitled

to get the total amount of compensation as mentioned

hereinabove.

14. In view of above, the following order is passed.

14.1 The present appeal and cross-objections are partly

allowed.

14.2 The impugned judgment and award dated 27.12.2017

passed by the Motor Accident Claims Tribunal (Main), Rajkot

in Motor Accident Claim Petition No.1240 of 2009 is modified

to the extent that the claimants are entitled to recover

amount of compensation of Rs.4,49,300/- with proportionate

cost and interest at the rate of 9% per annum from the date