Gujarat High Court
Kanubhai Ranchhodbhai Rabari vs Mahendrasinh Bhairavsinh Parmar on 17 September, 2024
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1733 of 2023
With
R/FIRST APPEAL NO. 2094 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/FIRST APPEAL NO. 2094 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 ? 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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KANUBHAI RANCHHODBHAI RABARI
Versus
MAHENDRASINH BHAIRAVSINH PARMAR & ORS.
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Appearance:
KAASH K THAKKAR(7332) for the Appellant(s) No. 1
MR KK THAKKAR(2834) for the Appellant(s) No. 1
MR JM BAROT(143) for the Defendant(s) No. 2
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,3,5,6
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 17/09/2024
ORAL JUDGMENT
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1. First Appeal No.1733 of 2023 has been
filed by the claimant for enhancement of the
compensation amount awarded by the learned Motor
Accident Claims Tribunal, Mahesana in M.A.C.P.
No.125 of 2014 vide judgment and award dated
31.01.2023.
1.1 While First Appeal No.2094 of 2023 has
been filed by the driver of Rickshaw No.GJ-2Y-
6368, for quashing and setting aside the judgment
and award dated 31.01.2023 passed by learned
Motor Accident Claims Tribunal, Mahesana in
M.A.C.P. No.125 of 2014, whereby he has been held
liable to pay compensation along with owner of
Rickshaw No.GJ-2Y-6368, as per R.C. Book,
respondent no.3.
2. The facts of the case, as could be
culled out from the judgment of the Tribunal are
that, on 15.10.2013, the appellant policeman had
gone to Mahesana for official work on Motorcycle
No.GJ-2-G-650, and on their return from Mahesana,
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at about 5 O' clock in the evening, near village
Devrsan, the motorcycle got punctured, at around
6 O' Clock in the evening the appellant saw one
loading rickshaw passing on that road. Upon
request of the appellant-claimant, opponent no.1,
stopped his rickshaw being Registration No.GJ-2-
Y-6368, and allowed to put the claimant's
motorcycle in the loading rickshaw. The
appellant-claimant too was travelling in the said
rickshaw with the motorcycle, and when they
reached at the place of accident, the said
rickshaw turned turtle bringing the claimant down
on the ground and it is stated that motorcycle
fell on the back of the appellant, and thereby
sustained grievous injuries.
3. Mr. Kaash K.Thakkar, learned advocate
for the appellant-claimant submitted that the
impugned accident happened when the appellant was
on duty as a policeman and he was travelling as a
part of his duty. Mr. Thakkar submitted that the
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appellant was 28 years of age doing his service
in police department by earning fixed pay of
Rs.5,300/- per month, which would become a
regular pay scale as per the policy of the State
Government.
3.1 Advocate Mr. Thakkar submitted that as
per salary chart of the appellant-claimant
provided by officer of police department at
Exh.50, the salary of claimant between July, 2022
to December 2022 would be Rs.1,98,164/- and his
salary for January, 2023 to June, 2023 would be
Rs.2,03,953/-, and accordingly his yearly income
would be Rs.4,02,117/- and monthly income would
be Rs.33,509.75/-, thus, stated that such income
would be available for appellant on the date of
pronouncement of judgment by learned Tribunal,
had the accident not occurred.
3.2 Advocate Mr. Thakkar submitted that if
such accident had not occurred, the appellant
could even had cleared departmental examination
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to become a PSI, and got a salary of Rs.80,000/-
per month plus allowances.
3.3 Relying on the judgment of Khenyei V.
New India Assurance Company Ltd. reported in
(2015) 9 SCC 273, Advocate Mr. Thakkar submitted
that accident occurred because of use of both the
vehicles and therefore both vehicles would be
jointly and severally liable; however, the
learned Tribunal has exonerated the Insurance
Company of Motorcycle considering that there was
no use of motorcycle, as per Advocate Mr.
Thakkar, such finding is against the judgment of
Kalim Khan Vs. Fimidabee, reported in 2018 (7)
SCC 687.
3.4 Advocate Mr. Thakkar submitted that the
learned Tribunal has exonerated the Insurance
Company of loading rickshaw on the grounds of
non-holding of transport vehicle endorsement by
the driver on his license and claimant was
considered as gratuitous passenger.
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3.5 Mr. Thakkar, learned advocate for the
appellant further submitted that respondent no.1
being licensed to drive LMW and motorcycle both,
was well qualified to drive rickshaw. Mr. Thakkar
stated that the loading rickshaw was having
unladen weight of 439 KG and insurance policy
mentions gross vehicle weight as 490 KG,
therefore, the vehicle weight was below 7500 KG
and for that separate endorsement is not required
as per the judgment of Mukund Dewangan Vs.
Oriental Insurance Co. Ltd. reported in AIR 2017
SC 3668.
3.6 Advocate Mr. Thakkar submitted that as
per section 147 of the Motor Vehicles Act, 1988,
an owner of goods or authorized representative of
goods can travel in the goods vehicle, and under
Rule 122 of the Gujarat Motor Vehicles Rules,
1989 a policeman on duty can travel in any goods
vehicle; thus stated that the appellant is
covered by the insurance policy as an authorized
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representative of owner of goods and as a
policeman on duty.
3.7 Advocate Mr. Thakkar submitted that as
per judgment in National Insurance Co. Ltd. Vs.
Baljit Kaur, reported in 2004 (1) GLH 762, the
learned Tribunal ought to have ordered 'pay and
recover' against the insurance company. The
registered owner had sold his rickshaw, so new
owner and registered owner both have been joined
in the litigation; however, no any such issue was
raised by the insurance company before the
learned Tribunal, which is covered by the
judgment of Prakash Chand Daga Vs. Savetal
Sharma, reported in 2019 ACJ 1, wherein it was
held that the registered owner is liable till his
name is reflected in the RTO record.
3.8 Mr. Thakkar, learned advocate, further
submitted that the learned Tribunal has failed to
grant future prospectus as laid down in judgment
of National Insurance Company Ltd. v. Pranay
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Sethi and Ors., reported in AIR 2017 SC 5157.
3.9 Advocate Mr. Thakkar submitted that the
applicant was engaged to be married at the time
of accident, however, due to paraplegia on
account of accident, marriage was called off and
now he is unmarried till date. Advocate Mr.
Thakkar submitted that no amount under the head
of loss of amenities and enjoyment of life,
future medical expenses and loss of marriage
prospect have been granted by the learned
Tribunal, and the amount under the head of Pain,
shock and sufferings and special diet, attendant,
Transportation with physiotherapy charges are
very less.
3.10 In support of his submissions, Advocate
Mr. Thakkar relied on the following judgments:
(i) Kalavatiben Motisinh Divera Vs.
Kamalsinh Chandrasinh Parmar, rendered in First
Appeal No.2668 of 2019 decided on 29.09.2023;
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(ii) Reliance General Insurance Company Ltd.
Vs. Bhagvanbhai Kamabhai Ulva, reported in 2023
GLR (2) 1106;
(iii) Ramarao Lala Borse Vs. New India
Assurance Company Ltd., reported in 2018 (3) SCC
204;
(iv) Ayush Vs. Branch Manager, Relaince
General Insurance Co. Ltd., reported in 2022 ACJ
1006;
(v) Kajal Vs. Jagdish Chand, reported in
2022 ACJ 1006; 2020 ACJ 1042.
4. Learned advocate Mr. Rajesh B.Soni for
the appellant, driver of Rickshaw No.GJ-2-Y-6368,
in First Appeal No.2094 of 2023, submitted that
the learned Tribunal had Committed Serious error
of law in not verifying the averments of
complaint produced at Exh. 59. Advocate Mr. Soni
submitted that the said Rickshaw was driven by
the driver of respondent no.2, and the name of
the driver was also mentioned in the complaint
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itself.
4.1 Advocate Mr. Soni further submitted that
the involvement of the present appellant is not
proved before Claims Tribunal and therefore, the
entire compensation is required to be set aside
qua driver of the vehicle. Advocate Mr. Soni
submitted that the learned Tribunal had committed
serious error of law in not considering the
averments of written statement of the present
appellant at Exh.31, as his denial of driving the
vehicle was not controverted by any of the party
to the proceedings, and, therefore the entire
compensation granted to the claimant is required
to be set aside qua driver of the vehicle i.e.
appellant.
4.2 Advocate Mr. Soni further submitted that
the learned Tribunal had not believed the license
of the present appellant as valid driving
license, who has holding license of LMV & MCWG.
Advocate Mr. Soni stated that the principle has
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been settled by the Apex Court that no separate
endorsement is required for license of LMV to
drive any transport vehicle, and therefore
submitted that the finding regarding the driving
license is erroneous .
4.3 Advocate Mr. Soni submitted that the
learned tribunal had committed serious error of
law in not believing the citation produced on
record and absolutely ignored the settled
principles, and also erred in believing 100%
disability of the claimant.
5. Advocate Mr. Rathin Raval for the
National Insurance Co. Ltd. - respondent no.6
stated that the motorcycle was being carried in
the rickshaw as goods, and the claimant was
travelling as representative of the motorcycle,
therefore no liability can be laid down on the
Insurance Company of the motorcycle when the
motorcycle was not actually in use on the road.
6. Ms. Kirti S.Pathak, learned advocate for
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ICICI Lombard General Insurance Co. Ltd.,
respondent no.4, submitted that the legal maxim
"NULLUS COMMUDUM CAPERE POTEST DE INJURIA SUA
PROPRIA" means no one can be benefited for
his/her own wrong. Ms. Pathak submitted that it
is a case that the appellant claimant being a
policeman has violated the law and therefore he
should suffer the consequences. Ms. Pathak
submitted that the appellant's foremost duty is
to execute the law himself, who has breached the
provisions of Motor Vehicles Act 1988, and
perhaps the entire accident could have been
averted if the appellant - original claimant
himself would not have breached the law.
6.1 Advocate Ms. Pathak submitted that the
accident was nothing but a self-invited accident
by appellant-claimant; who could have called for
a puncture repairer or hired another taxi if
there was urgency to reach the destination. Ms.
Pathak stated that the Police officer had kept
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the Motorbike inside the auto rickshaw, and
therefore, a question would arise as to what was
the urgency to load a Motorcycle inside an auto-
rickshaw rather than calling someone from Garage,
and no such urgency is being explained in claim
petition or pleaded to be proved by way of
evidence.
6.2 Advocate Ms. Pathak submitted that the
Police official on duty, whose bike got punctured
and had carried his motorcycle insured with
National Insurance Co. Ltd., in goods vehicle
auto rickshaw delivery van, insured with ICICI
Lombard GIC, wherein there was seating capacity
of only one, meaning thereby no one ought to have
travelled except the driver. Ms. Pathak submitted
that the seating capacity was only one as per
policy issued by Respondent - ICICI Lombard.
6.3 Advocate Ms. Pathak further submitted
that the risk of appellant - original claimant
was not covered under section 147 the M.V. Act,
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and the policy issued by the Insurance Company
does not cover such risks of unauthorized person;
hence, ICICI Lombard GIC is not liable to pay any
kind of compensation to the appellant - original
claimant. Advocate Ms. Pathak submitted that
compensation whatsoever awarded to the appellant
claimant, is upon the owner, driver of auto
rickshaw and insurance company of motorcycle, who
should be made liable to pay the compensation.
6.4 Advocate Ms. Pathak further submitted
that for coverage of Police Officer on duty, one
has to go, analyse the coverage from the purview
not only of Rule 122 but also under Section 147
of the Motor Vehicles Act, 1988. Ms. Pathak
submitted that there would be conflicting
interpretation between section 147 and Rule 122,
and when there is a conflicting interpretation
between rule and section, then in that case
section would prevail over Rule.
6.5 Advocate Ms. Pathak stated that the
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appellant is taking benefit of Rule 122 of
Gujarat Motor Vehicles Rules, which gives a
cushion to a police officer in uniform,
travelling on duty, carried in a goods carriage
but perhaps there is no specific exclusion clause
in section 147 of the Motor Vehicles Act to give
a cushion to police officer.
6.6 Advocate Ms. Pathak further submitted
that section 147 specifies the requirements of
the policy and limits of liability and stated
that such insurance policy should insure the
person or classes of persons specified therein
against the liabilities enumerated thereunder.
Advocate Ms. Pathak submitted that the first
liability, which the insurance policy requires to
cover, is provided under clause (1) the liability
which may be incurred by the insured in respect
of death or bodily injury to any person carried
in the vehicle or damage to property of a third
party caused or arising out of the use of the
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vehicle in a public place. Ms. Pathak stated that
at the time of accident there was no seating
capacity of the vehicle as per policy, hence, no
one including owner of goods can travel.
6.7 Advocate Ms. Pathak further submitted on
the issue of invalid license, to state that, at
the time of accident, the driver attach with auto
rickshaw was not holding valid and effective
license, which would amount to breach of policy
terms and conditions, hence even otherwise
insurance company ought to be exonerated, and
therefore the learned Tribunal has rightly
exonerated the insurance company, since there are
two technical issues involved in this accident.
6.8 Advocate Ms. Pathak submitted that the
argument of payment by insurance company and then
having a right to recover the same from the
insured is misconceived. Ms. Pathak stated that
the direction of Pay and Recover is being
misinterpreted. The Supreme Court has directed
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Insurance Company for recovery in cases where the
insurance company had deposited the awarded
amount to comply with the direction of High Court
or same court, and the said amount had been
withdrawn during the pendency of Appeal and in
such cases the Hon'ble Supreme Court had issued
such direction by exercising their extra ordinary
powers under Article 136 and 142 of the
Constitution of India. Ms. Pathak stated that the
High Court is not empowered to exercise such
extra ordinary authority.
6.9 Advocate Ms. Pathak further contended
that the proximate cause of accident was the
motorcycle which hit with auto-rickshaw, in fact
in the cross examination it was admitted. Ms.
Pathak stated that overall quantum awarded by the
learned Tribunal is appropriate considering the
documentary evidences being led, and therefore
submitted that there cannot be any enhancement in
the appeal filed by the appellant-claimant and
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that even the First Appeal filed by the owner is
meritless, and therefore, Ms. Pathak submitted
that the present respondent - insurance company
is not liable to pay the compensation to the
appellant claimant on account of breach of terms
and conditions of policy, thus, prayed that no
interference would be required in the order
passed by the learned Tribunal exonerating the
insurance company.
6.10 Advocate Ms. Pathak submitted that the
learned Tribunal has rightly assessed income of
Rs.5,300/- as per fix pay, and as per ratio laid
down in Pranay Shetty (supra), income as on date
of accident has to be considered. Ms. Pathak
stated that there is no evidence with regards to
pain, shock and sufferings, and even, as per
cross-examination, it has not come on record, the
degree of functional disability the claimant had
suffered on account of accident, and therefore,
considering the hospitalization period, the
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learned Tribunal has rightly considered
Rs.1,00,000/-.
6.11 Advocate Ms. Pathak further contended
that evidence led by the appellant claimant shows
that there may not be any kind of future medical
expenses to be incurred, while on the contrary,
there is admission on part of claimant that there
is no proof regarding the fact that he was
terminated from job.
6.12 In support of her submissions, Ms.
Pathak relied on the following judgments:
(i) Vachala & Ors. Vs. V.R. Kumar & Anr.,
decided on 25.06.2004 in CMA No.2090 of 1998 by
the Andhara Pradesh High Court;
(ii) United India Insurance Co. Ltd. Vs.
Minor Mahesh Kanubhai & Ors. decided on
07.04.2014 in First Appeal No.713 of 2007 with
First Appeal No.3852 of 2008 by this Court;
(iii) Oriental Insurance Vs. Suresh
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Shankarbhai Valand, decided by this Court in
First Appeal No.2917 of 2010 dated 10.03.2023;
(iv) New India Assurance Vs. Mayabhai
Najabhai Bharwad, decided on 19.12.2013 in First
Appeal No.810 of 2003;
(v) New India Insurance Company Vs. Amaraben
decided in First Appeal No.3292 of 2005;
(vi) Oriental Insurance Company Vs.
Chaturaben decided in First Appeal No.2741 of
2008;
(vii) United India Insurance Co. Ltd. Vs.
Bhikhabhai decided on 18.11.2013 in First Appeal
No.2121 of 2008.
7. Having heard learned advocates appearing
for the respective parties, perused the material
on record. The learned Tribunal has exonerated
the insurance company of the loading rickshaw on
the basis, considering claimant as gratuitous
passenger and holding that the driver was not
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having a valid and effective licence, and also
observing that the loading capacity was only of
one person.
8. In the judgment of Mukund Dewangan vs.
Oriental Insurance Co. Ltd. reported in (2017) 14
SCC 663, the Hon'ble Supreme Court held that
"light motor vehicle" would include a transport
vehicle as per the weight prescribed in section
2(21) read with section 2(15) and 2(48). It was
noted that a transport vehicle and omnibus, the
gross vehicle weight of either of which does not
exceed 7,500 kg would be a light motor vehicle
and also motor car or tractor or a roadroller,
"unladen weight" of which does not exceed 7,500
kg. Further held that 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 7,500 kg
or a motor car or tractor or roadroller, the
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"unladen weight" of which does not exceed 7,500
kg.
8.1 The Apex Court in the said judgment
further noted that effect of amendment made by
virtue of Act 54 of 1994 w.e.f. 14.11.1994 while
substituting clauses (e) to (h) of section 10(2)
with expression "transport vehicle" as
substituted in section 10(2)(e) relates only to
the substituted classes i.e. "medium goods
vehicle", "medium passenger motor vehicle",
"heavy goods vehicle" and "heavy passenger motor
vehicle", it does not exclude transport vehicle
from the purview of section 10(2)(d) and section
2(41) of the Act i.e. light motor vehicle. It was
observed that the effect of amendment of Form-4
by insertion of "transport vehicle" 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, and
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there was 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. It
was further held that even otherwise the Form
could not control the substantive provisions
carved out in section 10(2)(d) and 10(2)(e) and
the interpretation of the Form has also to be in
tune with the statement of objects and reasons
and the provisions of the Act inserted by virtue
of the amendment.
8.2 In accordance to the provision of law as
noted in Mukund Dewangan (supra), no specific
endorsement is required in a transport vehicle
whose weight is not above 7,500 k.g. Here, in the
present matter, the loading rickshaw was having
unladen weight of 439 KG and insurance policy
mentions gross vehicle weight as 490 KG. Thus,
lack of endorsement on the licence of the driver,
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on the involved vehicle i.e. loading rickshaw,
would not help the insurance company to claim the
plea of invalid licence or incompetency to drive.
9. The learned Tribunal has considered the
claimant as a gratuitous passenger. Gratuitous
passenger means the person, who has been given a
free lift by the owner or driver of the vehicle.
Free lift may be due to variety of the reasons
e.g. friendship, directions from the above,
relationship etc. In case of taking a passenger
gratuitously, there is always an element of
obligation the person so carried free of fare.
9.1 The word 'gratuitous' has not been used
in the Act and hence, there is no definition of
it in the Act. In the Webster's Third New
International Dictionary "gratuitous" means
'given freely or without recompense, granted
without pay or without claim or merit, costing
the recipient or participant nothing, free; not
involving a return benefit, compensation or
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consideration - opposed to onerous; not called
for by the circumstances; adopted or asserted
without good ground.
10. Herein the injured, who was a policeman,
whether he could be considered as a gratuitous
passenger, who travelled in the loading rickshaw,
on the date of accident. The fact suggests that
the claimant stopped the rickshaw and asked the
rickshaw driver, to load his motorcycle which got
punctured on his way back from his official work.
10.1 Since the person who had asked for the
lift and urged the driver of the rickshaw to
carry his motorcycle being a policeman, could the
driver of the rickshaw deny him, in view of Rule
122 of Gujarat Motor Vehicles Rules, 1989.
10.2 Rule 122 of the Gujarat Motor Vehicles
Rules, 1989 is reproduced herein under:
"122. Carriage of persons in goods
carriages.-
(1) Subject to the provisions of
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this rule, no person shall be
carried in a goods carriage:
Provided that the owner or the
hirer or a bonafide employee of the
owner or the hirer of the vehicle
carried free of charge, or a police
officer in uniform, traveling on
duty, may be carried in a goods
carriage:
Provided further that the total
number of persons so carried shall
not be more than -
(i) one, in case of a light motor
vehicle having gross vehicle weight
less than 900 kilograms;
(ii) three, in case of any other
light motor vehicle;
(iii) five, in case of any medium
goods vehicle;
(iv) seven, in case of any heavy
goods vehicle.
Provided further that the
provision of second proviso to this
sub-rule shall not apply in case
where integral seating arrangements
providing a reasonably comfortable
seating space for each person has
been made in the goods carriage for
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more than the number specified in
the second proviso.
(2) Notwithstanding anything
contained in sub-rule (1) but
subject to the provisions of sub-
rule (4), a Regional Transport
Authority - 80 - may, by an order in
writing, permit that a large number
of persons may be carried in the
goods carriage on condition that no
goods at all are carried in addition
to such persons and such persons are
carried free of charge in connection
with the work for which the vehicle
is used and that such other
conditions as may be specified by
the Regional Transport Authority are
observed and where the vehicle is
required to be covered by permit the
conditions of the permission
aforesaid are also made conditions
of the permit.
(3) Notwithstanding anything
contained in sub-rule (1) and (2)
but subject to the provisions of
sub-rule (4)-
(a) for the purpose of celebrations
in connection with the Republic Day
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or Independence Day, the Regional
Transport Officer,
(b) for the purpose of enabling a
co-operative society or a class of
co-operative societies owning or
hiring a goods carriage to carry its
members under its authority in such
goods carriage for the ordinary
course of its business, the
Commissioner of Transport or
Director of Transport as the case
may be,
(c) where if considers expedient in
public interest in respect of
vehicle owned or hired by it, and in
respect of other vehicles on such
inescapable grounds of urgent nature
to be specified in the order, the
State Government, may by general or
special order, permit goods
carriages to be used for the
carriage of persons for the purposes
aforesaid subject to such conditions
as may be specified in the order.
(4) No person shall be carried in
any goods carriage unless an area of
not less than 0.37 square metre of
the floor of the vehicle is kept
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open for each person in such manner-
(i) that such person when carried on
goods or otherwise is in danger of
falling from the vehicle,
(ii) that any part of his body, when
he is in a sitting position, is not
at a height exceeding three metres
from the surface upon which the
vehicle rests.
(5) No person other than an
attendant or attendants if any, as
required under rule 203 shall be
carried on a trailer which is a
goods vehicle:
Provided that not more than
four persons on a single axled
trailer and six persons on a trailer
having more than one axle may be
carried in addition to such
attendant or attendants, subject to
the conditions that-
(i) the trailer has been fitted with
fixed grab rails not less than 610
millimetres in height on the side
plank of the load body on all sides
except the rear side for the support
of the persons so carried;
(ii) when the trailer is being used
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in a public place, no part of the
body of any person so carried in
such a trailer is more than three
metres above the ground level; and
(iii) the gross laden weight of the
trailer does not exceed the gross
vehicle weight assigned to it.
(6) No person shall travel in a
goods carriage in contravention of
the provisions of this rule."
10.3 Rule 122 of the Gujarat Motor Vehicles
makes clear from the first proviso under sub-rule
(1) for a police officer in uniform travelling on
duty to be carried in a goods carriage. The
specific provision is about carriage of persons
in goods carriages, which would permit the
policeman to travel with his goods. The second
proviso to sub-rule (1) is about the total number
of persons, so to be carried. If the gross weight
of the vehicle is less than 900 kilograms than
one person, but such restriction shall not apply,
as per the third proviso, in case integral
seating arrangements provided a reasonable
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comfortable seating space for more than the
number specified in the second proviso.
10.4 This mandated rule creates a right for
the claimant as policeman and an obligation for
the rickshaw driver, which for them cannot be
excluded or claim to be disapplied. The Insurance
Company at present in the present matter cannot
take a plea under section 147 of the M.V. Act,
for its exclusion, since Gujarat Motor Vehicles
Rules statutorily applies to, and, is in relation
to all motor vehicles in the state of Gujarat,
unless it is expressly provided otherwise.
10.5 Section 147 of the M.V. Act contemplates
about the requirements of policies and limits of
liability. The rules, as provided under section
212 of the M.V. Act, are made after previous
publication and are published in the official
gazette. The Insurance Company cannot deny the
application of rules on the ground that section
147 of the M.V. Act does not incorporates within
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it any inclusion or exclusion clause. Motor
Vehicle Act, 1988 was with an intention of
governing all vehicles and creating rules and
regulations that all vehicle owners would be
required to adhere to, even contract cannot
override the right conferred by the statute, and
the rules absoluting the rights cannot be made
waivable, by way of any default clause.
10.6 Section 147 of M.V. Act, under sub-rule
(1) found amendment with effect from 14.11.1994
in terms whereof the words "including owner of
the goods or his authorized representative
carried in the vehicle" was added after the words
"against any liability which may be incurred by
him in respect of the death of or bodily injury
to any person".
10.7 Here, the claimant was travelling in his
individual capacity as a policeman in the goods
carriage, as well in the capacity of the
representative of the motorcycle, which is of the
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ownership of respondent no.5 - Gujarat State. A
vehicle breakdown service can either tow the
motorcycle, or the vehicle may be taken in some
carrier to its destination or to nearby garage.
11. From the evidence recorded at Exh.32 of
the claimant, it transpires that on the day of
the accident, he was on his job travelling along
with another constable Mahendrasinh. They were
going from D.S.P. office towards Vashai Police
Station, near Devrasan village two wheeler got
punctured. They were waiting there on the side of
the road parking the motorcycle, when they saw
Rickshaw No.GJ-2-Y-6368 coming from the side of
Mahesana, they stopped the rickshaw by waving
hand, and asked to take the motorcycle to Vashai
Police Station, the claimant deposed that
opponent no.1 loaded the punctured motorcycle in
the rickshaw, he was sitting in rickshaw holding
the motorcycle at the rear side, under the
instruction of opponent no.1.
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11.1 The learned Tribunal has concluded that
the accident occurred owing to the sole
negligence of the rickshaw driver, opponent no.1.
The claimant stated that after having travelled
for about 1 k.m., at village Udalpur, the
rickshaw turned turtle and had fallen at the four
lane, at that time, as the motorcycle fell from
the rickshaw on his waist and back, he suffered
severe injuries.
11.2 It is the case of the claimant, as per
his evidence, that had the motorcycle not fallen
on him, he would not have sustained injuries. The
rickshaw driver was driving rashly and
negligently and lost control on the steering. It
was the contention of learned advocate Mr.
Thakkar, that when the serious injury was because
of fall of the motorcycle on the claimant, then
both the vehicles should be made liable for the
payment of compensation.
12. In the case of Kalim Khan Vs. Fimidabee
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(supra), relied upon by Advocate Mr. Thakkar, the
Apex Court has dealt with the words 'use of motor
vehicles' in section 165 of M.V. Act for the
jurisdiction of the claims tribunal to order
compensation, observing that fundamental
requirement is that the accident should arise out
of the use of motor vehicle. If there is no use
of the motor vehicle question of vehicular
accident will not arise.
12.1 The factual matrix of the matter before
the Apex Court was that, a stone came flying and
hit the head of deceased causing his death, and
the case of claimant was that stone fell on
deceased due to blasting operation carried out
for digging of well in the field of respondent
no.1 by tractor engaged by owner for digging well
with blasting machine. The insurer has advanced
plea that tractor was insured under 'Farmer
Package Policy' for agriculture purpose by owner
of vehicle, however, it was used for commercial
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purpose by mounting a blasting machine thereon,
and use was in breach of insurance policy, and
therefore, insurer as would not be liable to pay
compensation. The Tribunal adverted to plea of
insured that vehicle was used for digging of well
in the field for irrigation which was incidental
to agricultural activity and not in breach of
insurance policy.
12.2 The Apex Court noticed the two appeals
preferred before the High Court challenging the
award of the tribunal. The High Court noted that
the power for trigger of the explosives came from
the battery of the tractor which was parked
nearby and as explosion took place, a large stone
flew in air and fell on the head of the deceased
who was standing in front of a shop that was 300
ft. away. The Court addressed the concept of 'use
of motor vehicle' and in that context stated that
the tractor, when is stationary with the
additional implements/machines can be run using
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the power generated by its engine for thrashing
and cutting agriculture produce. It also dwell
upon the concept when a storage battery of a
vehicle is disconnected and taken for some other
use, and also observed that sometimes it is used
for other purposes without disconnecting the
battery from the vehicle.
12.3 The High Court opined that the battery
of the vehicle was still installed inside and the
terminals were used for providing power to the
use of explosive. However, it further went on to
say that the battery was practically detached
from the vehicle and was not a part of the
vehicle and on that basis ruled that use of
battery for causing explosion cannot be said to
be use of vehicle, for the vehicle was not used
for causing explosion. Eventually, it was thus
held that it could not be said that the accident
which took place had arisen out of the use of
motor vehicle as defined in Section 165 of the
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Act and, therefore, considered the claim petition
under Section 166 as not maintainable. Expressing
the aforesaid view, the High Court set aside the
award passed by the tribunal. However, the Apex
Court ascribing with the observation of the
tribunal, keeping in view the evidence on record
agreed with the expression of the tribunal that
the battery was still installed on the vehicle
and the power was drawn from the battery for
explosive purposes.
12.4 In the case of Kalim Khan Vs. Fimidabee
(supra), the Apex Court has also referred to the
judgment of Shivaji Dayanu Patil and Another v.
Smt. Vatschala Uttam More, reported in (1991) 3
SCC 530, where the Hon'ble Apex Court has dealt
with conceptual meaning of the phrase "arising
out of the use of motor vehicle" as contained in
Section 92-A of the Motor Vehicles Act, 1939,
which correspondence to the provision of section
165 of the M.V. Act.
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12.5 The Apex Court has observed that in
Patil's case, there was a collision between a
petrol tanker and a tractor on the national
highway as a result which, the petrol tanker went
off the road and fell on its left side; the
petrol contained in it leaked out and collected
nearby. The accident took place at about 3 a.m.
and at about 7.15 a.m. an explosion took place in
the said petrol tanker resulting in fire and the
persons, who had assembled near the tanker
sustained injuries. The Tribunal has dismissed
the claim petition on the ground that the
explosion could not be said to be an accident
arising out of the use of petrol tanker and that
the provision of section 92-A of 1939 Act would
not be attracted, and on appeal, the High Court
noted that though at the material time the tanker
was not being driven on the highway and was lying
turtle on its side, but it would be covered by
the expression 'use' as contemplated in Section
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92-A of 1939 Act. In Letters Patent Appeal, the
Division Bench opined that the expression 'use'
of motor vehicles covers a very wide field, a
field more extensive than which might be called
traffic use of the motor vehicle and that the use
of a vehicle is not confined to the periods when
it was in motion or was moving and that a vehicle
would still be in use even when it was
stationary, and the Division Bench affirmed the
judgment of the learned Single Judge of the High
Court.
12.6 On consideration, the Hon'ble Supreme
Court, after referring to the decisions cited by
the respondent and the analysis made by the High
Court, opined as under:
""26. In our opinion, the word "use"
has a wider connotation to cover the
period when the vehicle is not moving
and is stationary and the use of a
vehicle does not cease on account of
the vehicle having been rendered
immobile on account of a breakdown or
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mechanical defect or accident. In the
circumstances, it cannot be said that
the petrol tanker was not in the use
at the time when it was lying on its
side after the collision with the
truck."
12.7 In the said judgment, the Apex Court
referred to the decisions of Heyman v. Darwins
Ltd., [1942] AC 356, Union or India v. E.B.
Aaby's Rederi, [1975] AC 797, and Samick Lines
Co. Ltd v. Owners of the Antonis P.Lemos, [1985]
2 WLR 468, and thereafter adverted to the
observation in the decision of the High Court of
Australia in R.J. Green Case, by Lord Barwick,
C.J., which is reproduced herein under:
"Bearing in mind the general
purpose of the Act I think the
expression 'arising out of' must be
taken to require a less proximate
relationship of the injury to the
relevant use of the vehicle than is
required to satisfy the words 'caused
by'. It may be that an association of
the injury with the use of the
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vehicle while it cannot be said that
the use was causally related to the
injury may yet be enough to satisfy
the expression 'arise out of' as used
in the Act and in the policy."
The observation of Windeyer, J.
that was reproduced by the Court is
to the following effect:-
"The words 'injury caused by or
arising out of the use of the
vehicle' postulate a causal
relationship between the use of the
vehicle and the injury. 'Caused by'
connotes a 'direct' or 'proximate'
relationship of cause and effect.
'Arising out of' extends this to a
result that is less immediate; but it
still carries a sense of
consequence."
12.8 The Hon'ble Apex Court in para 16 and 17
has referred to the observation of two Judges
Bench, which are reproduced herein under:
16. The two - Judge Bench,
appreciating the wider connotation,
proceeded to lay down:-
"36. This would show that as compared
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to the expression "caused by", the
expression "arising out of" has a
wider connotation. The expression
"caused by" was used in Sections
95(1)(b)(i) and (ii) and 96(2) (b)
(ii) of the Act. In Section 92-A,
Parliament, however, chose to use the
expression "arising out of" which
indicates that for the purpose of
awarding compensation under Section
92-A, the causal relationship between
the use of the motor vehicle and the
accident resulting in death or
permanent disablement is not required
to be direct and proximate and it can
be less immediate. This would imply
that accident should be connected
with the use of the motor vehicle but
the said connection need not be
direct and immediate. This
construction of the expression
"arising out of the use of a motor
vehicle" in Section 92-A enlarges the
field of protection made available to
the victims of an accident and is in
consonance with the beneficial object
underlying the enactment."
17. Thereafter, the Division Bench
posed the question, whether the
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accident involving explosion and fire
in the petrol tanker was connected
with the use of tanker as a motor
vehicle. Concurring with the view of
the High Court, it ruled:
"37. In our view, in the facts and
circumstances of the present case,
this question must be answered in the
affirmative. The High Court has found
that the tanker in question was
carrying petrol which is a highly
combustible and volatile material and
after the collision with the other
motor vehicle the tanker had fallen
on one of its sides on the sloping
ground resulting in escape of highly
inflammable petrol and that there was
grave risk of explosion and fire from
the petrol coming out of the tanker.
In the light of the aforesaid
circumstances the learned Judges of
the High Court have rightly concluded
that the collision between the tanker
and the other vehicle which had
occurred earlier and the escape of
petrol from the tanker which
ultimately resulted in the explosion
and fire were not unconnected but
related events and merely because
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there was interval of about four to
four and half hours between the said
collision and the explosion and fire
in the tanker, it cannot be
necessarily inferred that there was
no causal relation between explosion
and fire. In the circumstances, it
must be held that the explosion and
fire resulting in the injuries which
led to the death of Deepak Uttam More
was due to an accident arising out of
the use of the motor vehicle viz. the
petrol tanker No. MKL 7461."
[Emphasis supplied]
The aforesaid analysis throws
immense light to understand the
concept of "related events" and
"causal relation". They have been
distinguished from an event which is
not connected. Needless to say, the
appreciation of causal relation is a
question of fact in each case and is
to be weighed and appreciated on the
basis of the materials brought on
record."
13. Here, as per the facts of the case, the
motorcycle was in the loading rickshaw. It had
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broken down because of the puncture in the Tyre.
The claimant owing to the puncture in the tyre,
was not in a position to put the motorcycle for
further use. Since he had no intention to use the
motorcycle, he had got it loaded in the rickshaw
which is a goods carriage. Under section 165 of
M.V. Act, 1988, the bodily injury to the person
has to be proved as 'arising out of use of motor
vehicles'. Now, after loading the motorcycle the
vehicle which was put to use was the 'loading
rickshaw'. The Tribunal has attributed the
accident to the sole negligence of the rickshaw
driver. The rickshaw turned turtle at the cross
road because of rash and negligent driving of the
rickshaw driver.
13.1 The admitted fact is that the claimant
was travelling in the rickshaw as representative
of the motorcycle. The negligence of the loading
rickshaw driver has been noted on the facts of
the matter. Since the rickshaw turned turtle, the
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claimant fell down and thereafter the motorcycle
fell on his back causing serious injury, which
has resulted into his paraplegic condition.
13.2 In the referred judgment, the concept of
'relative events' and 'casual relation' has been
focused. The distinction has been made from an
event which is not connected, where it has been
noted that the appreciation of the casual
relation is a question of fact of each case and
is to be weighed and appreciated on the basis of
the material brought on record.
13.3 The direct cause of the injury is the
motorcycle which had fallen on the back of the
claimant, and that has been caused because of
rash and negligent driving of the rickshaw
driver.
13.4 In Union of India Vs. United India
Insurance Co. Ltd. & Ors., reported in (1997) 8
SCC 683, referred in the judgment of Kalim Khan
Vs. Fimidabee (supra), the two Judges Bench had
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opined that the word 'use of motor vehicle', is
to be construed in a wider manner, where it has
been noted that the only limitation to the wider
meaning is to see that the injury must be one in
any way a consequence of a use of the vehicle as
a motor vehicle. The emphasis was on the
'consequences of a use', which was equated to
'related event'.
13.5 The proximate cause is the fall of
motorcycle which led to injuries but that
connection is not immediate and direct, since the
causative factor of the accident, should be
connected with the use of the vehicle.
13.6 Here, the consequence of the accident
was that the claimant fell down on the ground, as
the vehicle had turned turtle which was because
of the rash and negligent driving of rickshaw
driver. The motorcycle which was in the rickshaw
was as a goods, had fallen on the claimant. The
resultant consequence of the use of rickshaw is
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that the claimant received serious injury because
of the fall of the goods i.e his motorcycle,
which fell because of the rash and negligent
driver of the rickshaw driver.
13.7 Section 165 of the M.V. Act gives the
Claims Tribunal a jurisdiction to grant
compensation in case of bodily injury to persons
arising out of use of the motorcycle. Sub-section
(1) of section 165 of the M.V. Act, has the
expression 'bodily injury to, persons arising out
of the use of motor vehicles'. The same
expression is used in explanation to sub-section
(1) for the claim for compensation under section
140 and section 163A of the M.V. Act.
14. Section 147 of the M.V. Act also deals
with the requirement of policies and its limits
of liability in case of bodily injury to any
person, which includes owner of the goods or its
authorized representative carried in the vehicle,
caused by the vehicle or arising out of use of
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the vehicle in public place. Section 147 of the
M.V. Act incorporates within its sweep the
liability to pay the injured who is authorized
representative of goods carried in the vehicle.
The injury may be carried by or arising out of
the use of the vehicle in a public place.
14.1 In the result, the liability to pay the
compensation is jointly and severally on the
owner-driver and insurance company of the
rickshaw. Here in this case, ICICI Lombard
General Insurance Co. Ltd. is respondent no.4,
the owner is respondent no.2 whose driver is
respondent no.1, while respondent no.3 name was
running in the RTO department. The insurance of
vehicle rickshaw at the relevant time was with
respondent no.4. Hence, respondent Nos.1, 3 and 4
would be jointly and severally liable.
15. Learned advocate Mr. Kaash Thakkar
submitted that in Bhavik @ Bhavin Dwarkadas
Vithlani v. Ganpatsinh Manubha Jadeja & Anr.,
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reported in 2021 (3) GLR 2125, the case of 100%
disability and a vegetative state of claimant
aged about 22 years was considered by the
Division Bench of this Court, the judgment was
confirmed in S.L.P. (c) No.7321 of 2021 by the
Apex Court.
15.1 Learned advocate Mr. Thakkar submitted
that the claimant herein is paraplegic and has
lost all the hopes of life, he would always be in
need of taking assistance from some other person/
persons. Mr. Thakkar stated that it would not be
a case of any amputation of the leg, where the
claimant could even have supported himself by
artificial limbs or by any cycle run by motor or
any other means for him to make movement on his
own.
15.2 While countering the argument, Advocate
Ms. Kirti Pathak submits that no evidence is
coming on record to substantiate the fact that
the claimant is in need of any assistance for his
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day-to-day requirements.
16. The case of the claimant is of being a
paraplegic. The learned Judge had recorded the
evidence and had considered him 100% disabled.
The learned Judge has also referred to the
disability certificate, Exh.57, wherein the
Doctor has assessed permanent disability of spine
as 80% for the whole body. The learned Tribunal
has considered the spinal injuries sustained by
the claimant and has also considered the
bedridden period of the claimant to conclude the
disability as 100% for body as a whole. The fact
on record, as observed by the Tribunal is the
paraplegic condition of the claimant, who would
require some assistance from some independent
person to look after him for his daily needs,
since paraplegia is a medical condition involving
impairment in motor or sensory function of the
lower extremities which is classification of
paralysis, the universal term to describe the
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loss of movement or sensation following damage to
nerve in the body. Paraplegia affects both legs.
17. The Tribunal, under the different heads,
has granted the compensation as under at 7%
interest rate per annum:
Heads Amount (in Rs.)
Future loss of income 10,81,200/-
Pain, shock and suffering 1,00,000/-
Special Diet, Attendant and 40,000/-
Transportation charges
Actual Loss 15,600/-
Medical Expenses 3,68,399/-
Total compensation 16,05,199/-
18. Considering the judgment of Bhavik @
Bhavin Dwarkadas Vithlani (supra) and as has been
dealt in Kajal Vs. Jagdish Chand, reported in
2022 ACJ 1006, necessary amount for attendance
charges are required to be paid.
18.1 In Kajal Vs. Jagdish Chand (supra), the
minimum wages schedule has been approved for
assessing the attendance charges. Accordingly,
during the time of accident dated 15.10.2013, the
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minimum wages for skilled worker was Rs.5,750/-.
Per an attendant, thus, annually, the amount
would come to Rs.69,000/-, applying multiplier of
17, taking the age of claimant as 28 years at the
time of accident the attendant charges would come
to Rs.11,73,000/-.
18.2 Towards medical expense, the amount of
Rs.3,68,399/- has been considered by the
Tribunal. The claimant has not adduced any
evidence for the Tribunal to consider regarding
his future medical expense, but keeping in mind
the paraplegic condition of the claimant,
Rs.75,000/- is granted towards future medical
expense, and special diet and transportation
expense.
18.3 At the time of accident, the claimant
was engaged to be married. As per evidence, the
date of marriage was to be decided by the elders,
the evidence shows that the marriage was called
off. In view of the evidence on record and in
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line of the judgment of Bhavik @ Bhavin Dwarkadas
Vithlani (supra), under the head of loss of
marriage prospect and loss of amenities and
enjoyment of life, Rs.2,00,000/- is granted.
18.4 Considering the age of the claimant and
since the claimant is now not in a position to
even continue with his service and to deal with
his life in a normal position, the amount under
the head of pain, shock and suffering granted by
the Tribunal is on a lower side. Life of claimant
is not in total loss as in the case of Bhavik @
Bhavin Dwarkadas Vithlani (supra) being in
vegetative state, here the claimant can still be
conscious of the surrounding, can even express
his feeling and remain emotionally attached with
the family, and if want to move can take the
assistance of attendant, thus, considering the
comparative situation with Bhavik @ Bhavin
Dwarkadas Vithlani (supra), the amount granted by
the Tribunal requires enhancement, hence, is
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enhanced from Rs.1,00,000/- to Rs.5,00,000/-.
19. In the case of S.Vasanthi Vs.
Adhiparasakthi Engg. College, reported in 2022
AIR (SC) 0-5057, the Hon'ble Supreme Court has
appreciated the contention that if the person had
not met with the accident, he would have surely
drawn a salary equivalent to that of his
classmates or at least an amount near to the said
amount.
20. Accepting the principle of
standardization and appreciating the concept of
prospective future rise in income with the
benefit of increments and pay revision, the
Hon'ble Apex Court in the case of National
Insurance Company Ltd. v. Pranay Sethi and Ors.,
reported in (2017) 16 SCC 680, has held as under:
"When we accept the principle of
standardization, there is really no
rationale not to apply the said
principle to the self-employed or a
person who is on a fixed salary. To
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follow the doctrine of actual income
at the time of death and not to add
any amount with regard to future
prospects to the income for the
purpose of determination of
multiplicand would be unjust. The
determination of income while
computing compensation has to
include future prospects so that the
method will come within the ambit
and sweep of just compensation as
postulated under Section 168 of the
Act. In case of a deceased who had
held a permanent job with inbuilt
grant of annual increment, there is
an acceptable certainty. But to
state that the legal representatives
of a deceased who was on a fixed
salary would not be entitled to the
benefit of future prospects for the
purpose of computation of
compensation would be in apposite.
It is because the criterion of
distinction between the two in that
event would be certainty on the one
hand and staticness on the other.
One may perceive that the
comparative measure is certainty on
the one hand and uncertainty on the
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other but such a perception is
fallacious. It is because the price
rise does affect a self-employed
person; and that apart there is
always an incessant effort to
enhance one's income for sustenance.
The purchasing capacity of a
salaried person on permanent job
when increases because of grant of
increments and pay revision or for
some other change in service
conditions, there is always a
competing attitude in the private
sector to enhance the salary to get
better efficiency from the
employees. Similarly, a person who
is self-employed is bound to garner
his resources and raise his charges/
fees so that he can live with same
facilities. To have the perception
that he is likely to remain static
and his income to remain stagnant is
contrary to the fundamental concept
of human attitude which always
intends to live with dynamism and
move and change with the time.
Though it may seem appropriate that
there cannot be certainty in
addition of future prospects to the
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existing income unlike in the case
of a person having a permanent job,
yet the said perception does not
really deserve acceptance. We are
inclined to think that there can be
some degree of difference as regards
the percentage that is meant for or
applied to in respect of the legal
representatives who claim on behalf
of the deceased who had a permanent
job than a person who is self-
employed or on a fixed salary. But
not to apply the principle of
standardization on the foundation of
perceived lack of certainty would
tantamount to remaining oblivious to
the marrows of ground reality.
And,therefore, degree-test is
imperative. Unless the degree-test
is applied and left to the parties
to adduce evidence to establish, it
would be unfair and inequitable. The
degree-test has to have the inbuilt
concept of percentage. Taking into
consideration the cumulative
factors, namely, passage of time,
the changing society, escalation of
price, the change in price index,
the human attitude to follow a
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particular pattern of life, etc., an
addition of 40% of the established
income of the deceased towards
future prospects and where the
deceased was below 40 years an
addition of 25% where the deceased
was between the age of 40 to 50
years would be reasonable.
Judicial notice can be taken of
the fact that salary does not remain
the same. When a person is in a
permanent job, there is always an
enhancement due to one reason or the
other. To lay down as a thumb rule
that there will be no addition after
50 years will be an unacceptable
concept. We are disposed to think,
there should be an addition of 15%
if the deceased is between the age
of 50 to 60 years and there should
be no addition thereafter.
Similarly, in case of self- employed
or person on fixed salary, the
addition should be 10% between the
age of 50 to 60 years. The aforesaid
yardstick has been fixed so that
there can be consistency in the
approach by the tribunals and the
courts.
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While determining the income, an
addition of 50% of actual salary to
the income of the deceased towards
future prospects, where the deceased
had a permanent job and was below
the age of 40 years, should be made.
The addition should be 30%, if the
age of the deceased was between 40
to 50 years. In case the deceased
was between the age of 50 to 60
years, the addition should be 15%.
Actual salary should be read as
actual salary less tax.
In case the deceased was self-
employed or on a fixed salary, an
addition of 40% of the established
income should be the warrant where
the deceased was below the age of 40
years. An addition of 25% where the
deceased was between the age of 40
to 50 years and 10% where the
deceased was between the age of 50
to 60 years should be regarded as
the necessary method of computation.
The established income means the
income minus the tax component."
21. Here, in this case, the witness, Patel
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Rajnikant Jethalal, senior clerk, Account
Department of Police Superintendent office,
Mahesana had been examined. As per the summon,
the witness appeared before the Court along with
service book of the claimant and had produced
relevant pages of the service book at Exh.47. The
appointment letter at Exh.48 and Exh.49 shows
that as per order dated 17.05.2018, the claimant
as an armed police constable was in pay-grade of
Rs.18,000 - 56,900, and the witness stated that
the retirement age of the claimant is 31.08.2042,
and the last basic pay would be Rs.37,500/- and
after addition of Dearness Allowance and other
allowances, it would come to Rs.73,135/-.
21.1 The salary slab was produced by the
witness. The witness stated that because of
physical condition of the claimant, he could not
attain the service and was on leave without any
pay, and though he was in service, but because of
the accident, he cannot work. The witness also
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denied the suggestion that the claimant has been
paid with the salary. As per record and the
evidence of the witness till 18.03.2018, the
claimant has been paid the salary. He has also
affirmed that there is no final decision with
regard to his job after receiving the medical
certificate, and has also affirmed that he has
not been discharged from the service.
22. Advocate Mr. Kaash Thakkar stated that
since the applicant is an armed police constable,
he without a fitness certificate cannot join
service and being paraplegic he is not in a
position to produce fitness certificate, and
further stated that being an armed policeman, he
cannot be placed for some other table work or for
any minimal works, and, thus he is in total loss
of income.
22.1 Advocate Ms. Pathak submitted that the
actual salary on the date of accident is required
to be considered, as the learned Tribunal has
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rightly considered Rs.5,300/- and has granted
Rs.10,81,200/-.
23. The witness stated that till 18.03.2018,
he has been paid salary. There is no evidence of
actual loss to the claimant, hence, the
computation of actual loss of Rs.15,600/- made by
the Tribunal is without any supporting evidence,
thus, that amount cannot be granted. The salary
chart shows that his basic salary was
Rs.19,950/-. Advocate Mr. Thakkar stated that the
claimant being an armed policeman would have to
be paid for his service during the public
holidays, and as per the salary chart, he was on
leave without pay owing to the illness has been
proved.
23.1 The claimant received his last salary on
18.03.2018, till that period there was no loss of
income. His basic salary was recorded as
Rs.19,950/- and in the year 2018, the claimant
would be at the age of 32 years, hence, the
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multiplier applicable would be 16. Thus, the loss
of income would come to Rs.19,950 x 16 x 12 =
Rs.38,30,400/-.
24. In view of the above, compensation under
different heads would be:
Heads Amount (in Rs.)
Future loss of income 38,30,400/-
Pain, shock and suffering 5,00,000/-
Attendant charges 11,73,000/-
Medical Expenses 3,68,399/-
Future Medical Expense and 75,000/-
special diet and
transportation charges
Loss of Marriage Prospectus 2,00,000/-
and loss of amenities and
enjoyment of life
Total compensation 61,46,799/-
25. The amount granted by the Tribunal is
Rs.16,05,199/-. The enhanced amount is
Rs.45,41,600/- (61,46,799 - 16,05,199). It is
reported that no amount has been deposited as per the
impugned award. Thus, let the total amount of
Rs.61,46,799/- be deposited by the driver and owner
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respondent Nos.1 and 3 and insurance company
respondent No.4 jointly and severally at the rate
of 7% per annum from the date of claim petition
before the concerned Tribunal within eight weeks
from the date of receipt of writ of this
judgment.
26. In view of the above observations, the
First Appeal No.1733 of 2023 is allowed in part
and First Appeal No.2094 of 2023 and the stay
application stand disposed of.
26.1 The impugned judgment and award dated
31.01.2023 passed by Motor Accident Claims
Tribunal (Aux.), Mahesana in M.A.C.P. No.125 of
2014 stands modified to the aforesaid extent. No
order as to costs.
26.2 Record & Proceedings, be sent back to
the concerned tribunal.
(GITA GOPI,J)
Pankaj
