Gujarat High Court

Vikramsinh Punjsinh Padhiyar vs Natvarsinh Dalotsinh Makwana on 10 September, 2024

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                            C/FA/3328/2010                                         JUDGMENT DATED: 10/09/2024

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 3328 of 2010


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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 ?

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                                             VIKRAMSINH PUNJSINH PADHIYAR
                                                         Versus
                                         NATVARSINH DALOTSINH MAKWANA & ORS.
                      ==========================================================
                      Appearance:
                      MR R.K.MANSURI(3205) for the Appellant(s) No. 1
                      MR. ALKESH N SHAH(3749) for the Defendant(s) No. 3
                      RULE SERVED for the Defendant(s) No. 1,2,4,5
                      ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 10/09/2024
                                                             ORAL JUDGMENT

1. The present First Appeal, under Section 173 of

Motor Vehicles Act, 1988, is preferred by the appellant -

claimant, being aggrieved and dissatisfied with the

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judgment and award dated 03.05.2010 passed by the

Motor Accident Claims Tribunal (Main), Sabarkantha at

Himatnagar in Motor Accident Claim Petition No.1122 of

2006, by which the Tribunal has awarded compensation

of Rs.1,57,430/- with 6% per annum interest to the

claimant/s, holding opponent Nos.2 to 5 liable, jointly and

severally and by exonerating the respondent No.3 from

its liability. Respondent No.2 and 5 were ordered to pay

the awarded amount to the ratio of 50:50.

2. Brief facts of the case as per the case of the

appellant are as under:

2.1 The accident is occurred on 27.07.2006 at about 16.45 o'clock in turning on Chankarni-Khed Road, in the

sim of village Vasna. The applicant was going towards

Himatnagar from Chandarni by sitting as pillion rider on

opponent No.4's-his friend's motorcycle No.GJ-9-R-9610

and when they were passing in turning on Chandarni-

Khed road in the sim of village Vasna at that time

opponent No.1-driver of involved jeep No.GJ-9-V-7040

came from opposite side by driving his jeep in rash and

negligent manner and with excessive speed and dashed

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to the involved motorcycle as a result of which applicant

fall down and sustained injuries.

2.2 After considering the documentary as well as oral

evidence and submissions made at the bar, the Tribunal

has partly allowed the claim petition by awarding

compensation as noted above.

2.3 Being aggrieved and dissatisfied with the impugned

judgment and award passed by the Tribunal, the present

appeal is preferred by the claimant for enhancement.

3. Learned advocate for the appellant - claimant has

submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. It

is submitted that amount awarded is on lower side as

the Tribunal has not properly considered the various

aspects; like income of the injured, injuries, prospective

income, special diet, transportation and attendant

charges, pain, shock and suffering, actual loss, etc. It is

submitted that the Tribunal has committed error in

considering the monthly income of the injured Rs.2,000/-,

which should be Rs.2,500/- considering the fact that he

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was doing colour work and polish work and also labour

work, and taking into account the minimum wages

prevailed in the relevant time. Accordingly, actual loss of

income may be increased considering the income of the

injured. It is submitted that considering decision of the

Hon'ble Apex Court in the case of National Insurance

Company Limited versus Pranay Shethi reported in

(2017) 16 SCC 680, as well as taking into account the

age of the injured, addition to the extent of 40% may be

granted in monthly income of the injured. Furthermore,

it is submitted that the Tribunal has rightly considered

the disability, which is not in dispute in the present

case. Furthermore, the multiplier should be 16

considering the various decisions of the Hon'ble Apex Court and taking into account the age of the claimant.

It is submitted that the Tribunal has committed an error

by not properly considering the compensation under the

head of pain, shock and suffering, which should be

Rs.30,000/-, instead of Rs.15,000/- awarded by the

Tribunal, looking to the injuries sustained by the

claimant and considering the decisions of the Hon'ble

Apex Court in the case of : (i) Pranay Shethi (supra)

and (ii) Govind Yadav vs. New India Insurance Company

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Limited reported in (2011) 10 SCC 683. It is submitted

that the Tribunal has committed error in not properly

considering the amount towards special diet,

transportation and attendant charges, which should be

Rs.10,000/- instated of Rs.5,000/- considering the time of

treatment taken by the injured. It is submitted that the

driver of jeep was holding valid licence at the time of

accident. Hence, the Tribunal has committed error by

exonerating the opponent No.3 - insurance company by

taking hyper-technical view. It is submitted that the

Tribunal has rightly awarded the compensation under

different heads, except the above raised. It is submitted

that the appropriate enhancement be granted by

modifying the award impugned. It is submitted that the appeal may be allowed.

4. Per contra, learned advocate for respondent No.3 -

insurance company has submitted that the impugned

judgment and award passed by the Tribunal is just and

proper. It is submitted that the Tribunal has rightly

considered the income of the injured. Furthermore, it is

submitted that the Tribunal has rightly considered the

compensation towards pain, shock and suffering,

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prospective income. It is submitted that the Tribunal has

rightly awarded amount towards special diet, attendant

charges, and attendant charges. It is also submitted that

the Tribunal has rightly considered the liability aspect. It

is also submitted that no interference is required in the

impugned award. However, from the submissions made

by learned advocate for the appellant that the Tribunal

has committed certain errors, on this aspect, learned

advocate for the respondent/s has submitted that if this

Court feels that there is some error in calculation of the

amount in view of settled position of law, in awarding

compensation by the Tribunal, then the Court may pass

appropriate order by considering the submissions made

by him/her, in the interest of justice.

5. It is noteworthy to mention that the provisions of

the Motor Vehicles Act, 1988 which gives paramount

importance to the concept of 'just and fair' compensation.

It is a beneficial legislation which has been framed with

the object of providing relief to the victims or their

families. Section 168 of the Motor Vehicles Act deals

with the concept of 'just compensation' which ought to be

determined on the foundation of fairness, reasonableness

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and equitability. Although such determination can never

be arithmetically exact or perfect, an endeavor should be

made by the Court to award just and fair compensation

irrespective of the amount claimed by the claimant/s.

6.1 I have heard the learned advocates for the

respective parties and considered the submissions made

by the rival parties. I have perused the record and

proceedings of the Tribunal. I have gone through the

impugned judgment and award passed by the Tribunal.

It is noted that the claimant has by and large claimed

enhancement towards income of the injured, injuries,

prospective income, special diet, transportation and

attendant charges, pain, shock and suffering, actual loss, etc. At the outset, I have considering the decision cited

at the bar by learned advocate for the appellant. The

judgments cited at the bar by learned advocate for the

appellant is helpful to the facts of the present case.

6.2 It transpires that the Tribunal has considered the

monthly income of the injured Rs.2,000/-, which should

be Rs.2,500/- considering the fact that he was doing

colour work and polish work and also labour work, and

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taking into account the minimum wages prevailed in the

relevant time. Furthermore, considering various above-

mentioned judgments of the Hon'ble Apex and taking

into account the age of the claimant at the time of

accident, i.e., 35 years, addition to the extent of 40% is

required to be granted in the monthly income. Therefore,

it would come to Rs.3,500/- towards prospective income.

Furthermore, Considering the various decisions of the

Hon'ble Apex Court, and taking into account the age of

the injured at the time of accident i.e. 35 years at the

time of accident, multiplier of 16 is required to be

granted. It is required to take note of the fact that

learned advocate for the appellant has not disputed

disability considered by the Tribunal. Otherwise also, the Tribunal has rightly considered those aspects. Therefore,

Rs.3,500/- x 25% x 12 (monthly) x 16 (multiplier) would

come to Rs.1,68,000/- which would be the future loss of

income of the claimant.

6.3 Furthermore, actual loss of income should be

Rs.30,000/-, instead of Rs.24,000/- considering the monthly

income Rs.2,500/- of the claimant for 12 months.

Furthermore, the Tribunal has erred in awarding

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Rs.15,000/- towards pain, shock and suffering, which

should be Rs.30,000/- considering the injuries and

treatment as well as taking into account various

decisions of the Hon'ble Apex Court. Furthermore, the

Tribunal has erred in awarding Rs.5,000/- only towards

special diet, attendant and transportation charges, which

should be Rs.10,000/- considering the injuries and period

of hospitalization of the claimant, as well as treatment

taken by the injured. Furthermore, under the other

heads, the amount awarded by the Tribunal are not

disputed by the claimant in the present case. Otherwise

also, the Tribunal has rightly considered the amount of

compensation under other heads.

6.4 Thus, the appellant - claimant is entitled to get the

following final amount as compensation :

                                                   Particulars                                Amount (Rs.)

                            Future loss of income                                                    1,68,000/-

                            Actual loss of income                                                        30,000/-

                            Pain, shock and suffering                                                    30,000/-

                            Medical expenses                                                             11,430/-






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                            Special diet, transportation,                                                  10,000/-

                            attendant charges

                                                                                  Total...                 2,49,430/-

                            Less : Amount which is already                                               1,57,430/-

                            awarded

                             Additional amount which is awarded                                            92,000/-



                      6.5      It is fruitful to refer the judgment of the Hon'ble

Apex Court in the case of Mukund Dewangan versus Oriental Insurance Co. Ltd., reported in AIR 2017 SC 3668, more particularly Paras : 42, 43, 45 and 46 are relevant, which are as under:

"42. In Nagashetty (AIR 2001 SC 3356) (supra), the

vehicle involved was a tractor which was used for carrying

goods. The goods were carried in a trailer attached to it.

It was held that if a driver was holding an effective

licence to drive a tractor, he could validly drive the tractor

attached to a trailer. The contention that it was a

transport vehicle, as the tractor was attached to a trailer

and as such the driver was not holding a valid licence,

was rejected. This Court has laid down thus:

"9. Relying on these definitions, Mr. S.C. Sharda

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submitted that admittedly the trailer was filled with

stones. He submitted that once a trailer was

attached to the tractor the tractor became a

transport vehicle as it was used for carriage of

goods. He submitted that Section 10(2) of the Motor

Vehicles Act provides for grant of licences to drive

specific types of vehicles. He submitted that the

driver only had a licence to drive a tractor. He

submitted that the driver did not have a licence to

drive a transport vehicle. He submitted that

therefore it could not be said that the driver had an

effective and valid driving licence to drive a goods

carriage or a transport vehicle. He submitted that

thus the driver did not have a valid driving licence

to drive the type of vehicle he was driving. He

submitted that as the driver did not have a valid

driving licence to drive a transport vehicle, the

Insurance Co. could not be made liable. He

submitted that the High Court was right in so

holding.

10.We are unable to accept the submissions of Mr.

S.C. Sharda. It is an admitted fact that the driver

had a valid and effective licence to drive a tractor.

Undoubtedly Under Section 10, a licence is granted

to drive specific categories of motor vehicles. The

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question is whether merely because a trailer was

attached to the tractor and the tractor was used for

carrying goods, the licence to drive a tractor becomes

ineffective. If the argument of Mr. S.C. Sharda is to

be accepted, then every time an owner of a private

car, who has a licence to drive a light motor vehicle,

attaches a roof carrier to his car or a trailer to his

car and carries goods thereon, the light motor

vehicle would become a transport vehicle and the

owner would be deemed to have no licence to drive

that vehicle. It would lead to absurd results. Merely

because a trailer is added either to a tractor or to a

motor vehicle by itself does not make that tractor or

motor vehicle a transport vehicle. The tractor or

motor vehicle remains a tractor or motor vehicle. If

a person has a valid driving licence to drive a

tractor or a motor vehicle, he continues to have a

valid licence to drive that tractor or motor vehicle

even if a trailer is attached to it and some goods

are carried in it. In other words, a person having a

valid driving licence to drive a particular category of

vehicle does not become disabled to drive that

vehicle merely because a trailer is added to that

vehicle.

11.In this case, we find that the Insurance Company

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when issuing the insurance policy, had also so

understood. The insurance policy has been issued for

a tractor. In this insurance policy, an additional

premium of Rs.12 has been taken for a trailer.

Therefore the insurance policy covers not just the

tractor but also a trailer attached to the tractor. The

insurance policy provides as follows for the "persons

or classes of persons entitled to drive":

'Persons or classes of persons entitled to drive -

Any person including insured provided that the

person driving holds an effective driving licence at

the time of the accident and is not disqualified from

holding or obtaining such a licence:Provided also that

the person holding an effective learner's licence may

also drive the vehicle when not used for the

transport of goods at the time of the accident and

that such a person satisfies the requirements of Rule

3 of the Central Motor Vehicles Rules, 1989,

limitations as to use.'

12. The policy is for a tractor. The "effective

driving licence" is thus for a tractor. The restriction

on a learner driving the tractor when used for

transporting goods shows that the policy itself

contemplates that the tractor could be used for

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carriage of goods. The tractor by itself could not

carry goods. The goods would be carried in a trailer

attached to it. That is why the extra premium for a

trailer. The restriction placed on a person holding a

learner's licence i.e. not to drive when goods are

being carried is not there for a permanent licence-

holder. Thus a permanent licence-holder having an

effective/valid licence to drive a tractor can drive

even when the tractor is used for carrying goods.

When the policy itself so permits, the High Court

was wrong in coming to the conclusion that a person

having a valid driving licence to drive a tractor

would become disqualified to drive the tractor if a

trailer was attached to it."

43. Section 10(2) (a) to (j) lays down the classes of

vehicles to be driven not a specific kind of motor vehicles

in that class. If a vehicle falls into any of the categories,

a licence holder holding licence to drive the class of

vehicle can drive all vehicles of that particular class. No

separate endorsement is to be obtained nor provided, if the

vehicle falls in any of the particular classes of section

10(2). This Court has rightly observed in Nagashetty (AIR

2001 SC 3356)(supra) that in case submission to the

contrary is accepted, then every time an owner of a

private car, who has a licence to drive a light motor

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vehicle, attaches a roof carrier to his car or a trailer to

his car and carries goods thereon, the light motor vehicle

would become a transport vehicle and the owner would be

deemed to have no licence to drive that vehicle. It would

lead to absurd results. Merely because a trailer is added

either to a tractor or to a motor vehicle it by itself does

not mean that driver ceased to have valid driving licence.

In our considered opinion, even if such a vehicle is treated

as transport vehicle of the light motor vehicle class, legal

position would not change and driver would still have a

valid driving licence to drive transport vehicle of light

motor vehicle class, whether it is a transport vehicle or a

private car/tractor attached with trolley or used for

carrying goods in the form of transport vehicle. The

ultimate conclusion in Nagashetty (AIR 2001 SC 3356)

(supra) is correct, however, for the reasons as explained by

us.

45. Transport vehicle has been defined in section

2(47) of the Act, to mean a public service vehicle, a goods

carriage, an educational institution bus or a private service

vehicle. Public service vehicle has been defined in section

2(35) to mean any motor vehicle used or adapted to be

used for the carriage of passengers for hire or reward and

includes a maxicab, a motor cab, contract carriage, and

stage carriage. Goods carriage which is also a transport

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vehicle is defined in section 2(14) to mean a motor vehicle

constructed or adapted for use solely for the carriage of

goods, or any motor vehicle not so constructed or adapted

when used for the carriage of goods. It was rightly

submitted that a person holding licence to drive light

motor vehicle registered for private use, who is driving a

similar vehicle which is registered or insured, for the

purpose of carrying passengers for hire or reward, would

not require an endorsement as to drive a transport vehicle,

as the same is not contemplated by the provisions of the

Act. It was also rightly contended that there are several

vehicles which can be used for private use as well as for

carrying passengers for hire or reward. When a driver is

authorised to drive a vehicle, he can drive it irrespective

of the fact whether it is used for a private purpose or for

purpose of hire or reward or for carrying the goods in the

said vehicle. It is what is intended by the provision of the

Act, and the Amendment Act 54/1994.

46. Section 10 of the Act requires a driver to hold a

licence with respect to the class of vehicles and not with

respect to the type of vehicles. In one class of vehicles,

there may be different kinds of vehicles. If they fall in the

same class of vehicles, no separate endorsement is required

to drive such vehicles. As light motor vehicle includes

transport vehicle also, a holder of light motor vehicle

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licence can drive all the vehicles of the class including

transport vehicles. It was pre-amended position as well the

post-amended position of Form 4 as amended on 28.3.2001.

Any other interpretation would be repugnant to the

definition of "light motor vehicle" in section 2(21) and the

provisions of section 10(2)(d), Rule 8 of the Rules of 1989,

other provisions and also the forms which are in tune

with the provisions. Even otherwise the forms never

intended to exclude transport vehicles from the category of

'light motor vehicles' and for light motor vehicle, the

validity period of such licence hold good and apply for the

transport vehicle of such class also and the expression in

Section 10(2)(e) of the Act 'Transport Vehicle' would

include medium goods vehicle, medium passenger motor

vehicle, heavy goods vehicle, heavy passenger motor vehicle

which earlier found place in section 10(2)(e) to (h) and our

conclusion is fortified by the syllabus and rules which we

have discussed. Thus we answer the questions which are

referred to us thus:

(i) 'Light motor vehicle' as defined in section 2(21) of the

Act would include a transport vehicle as per the weight

prescribed in section 2(21) read with section 2(15) and

2(48). Such transport vehicles are not excluded from the

definition of the light motor vehicle by virtue of

Amendment Act No.54/1994.

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(ii) A transport vehicle and omnibus, the gross vehicle

weight of either of which does not exceed 7500 kg. would

be a light motor vehicle and also motor car or tractor or a

road roller, 'unladen weight' of which does not exceed 7500

kg. and holder of a driving licence to drive class of "light

motor vehicle" as provided in section 10(2)(d) is competent

to drive a transport vehicle or omnibus, the gross vehicle

weight of which does not exceed 7500 kg. or a motor car

or tractor or road-roller, the "unladen weight" of which

does not exceed 7500 kg. That is to say, no separate

endorsement on the licence is required to drive a transport

vehicle of light motor vehicle class as enumerated above. A

licence issued under section 10(2)(d) continues to be valid

after Amendment Act 54/1994 and 28.3.2001 in the form.

(iii) The effect of the amendment made by virtue of Act

No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e)

to (h) of section 10(2) which contained "medium goods

vehicle" in section 10(2)(e), medium passenger motor vehicle

in section 10(2)(f), heavy goods vehicle in section 10(2)(g)

and "heavy passenger motor vehicle" in section 10(2)(h)

with expression 'transport vehicle' as substituted in section

10(2)(e) related only to the aforesaid substituted classes

only. It does not exclude transport vehicle, from the

purview of section 10(2)(d) and section 2(41) of the Act i.e.

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light motor vehicle.

(iv) The effect of amendment of Form 4 by insertion of

"transport vehicle" is related only to the categories which

were substituted in the year 1994 and the procedure to

obtain driving licence for transport vehicle of class of "light

motor vehicle" continues to be the same as it was and has

not been changed and there is no requirement to obtain

separate endorsement to drive transport vehicle, and if a

driver is holding licence to drive light motor vehicle, he

can drive transport vehicle of such class without any

endorsement to that effect."

6.6 In view of this decision, it transpires that the Tribunal has erred in exonerating the respondent No.3 insurance company of Jeep from its liability on the ground of invalid driving licence of driver of jeep and, therefore, I am of the view that all the respondents are jointly and severally liability to pay the entire amount of compensation including the enhanced amount and the Tribunal has found negligent of both the vehicles liable to the extent 50% each.

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

get the total amount of compensation of Rs.2,49,430/-

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with 9% 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 shall

remain same. The Tribunal has already awarded

Rs.1,57,430/- and, therefore, remaining amount of

Rs.92,000/- would be the enhanced amount of

compensation payable to the claimant/s.