Gujarat High Court
Heirs Of Anilbhai Dayalji Lakhani, ... vs Hitendra Doulatsingh Parmar on 24 April, 2025
NEUTRAL CITATION
C/FA/2334/2011 JUDGMENT DATED: 24/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2334 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2011
In R/FIRST APPEAL NO. 2334 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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HEIRS OF ANILBHAI DAYALJI LAKHANI, DAYALJI HARIDAS LAKHANI &
ORS.
Versus
HITENDRA DOULATSINGH PARMAR & ORS.
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Appearance:
MR MM TIRMIZI(1117) for the Appellant(s) No. 1,2,3
ADVOCATE NOTICE NOT RECD BACK for the Defendant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 24/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Deepak Vigora for learned
advocate Mr. M. M. Tirmizi for the appellants and learned
advocate Mr. H. G. Mazmudar for respondent No.3. Though
served, none appeared for and on behalf of the
respondent No.2. Perused the record.
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2. The challenge in the present appeal is by the appellants -
original claimants challenging the judgment and award
dated 9.5.2011 passed by learned Motor Accident Claims
Tribunal (Aux.), Porbandar in M.A.C.P. No.122 of 2009.
3. The facts in brief of the case are as under:
* On 6.9.2009, at about 13.41 pm, deceased
Anil Dayalji Lakhani was travelling in Rickshaw No.GJ-23-
T-2243 on the service road, and whey he reached near
the board of village Dharampur, Udhyognagar area,
Porbandar, because of excessive speed, driver of
Rickshaw lost control over the steering and the Rickshaw
turned turtled. Resultantly, the deceased sustained
serious injuries and succumbed.
* Claimants being the legal heirs of the
deceased filed claim petition under Section 166 of the
M.V. Act for a compensation of Rs.15,00,000/- from the
opponents. Opponents were served with summons.
Opponent nos.1, 2 and 3 contested the claim petition by
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filing Written Statement at Exhs.11, 12 and 23
respectively. After framing of issues, claimant No.1 -
widow of deceased submitted her deposition at Exh.28
and produced FIR, Panchnama, PM report and other
documents in support of claim petition.
* After considering the evidence, learned
Tribunal exonerated insurance company from liability to
pay compensation and directed driver and owner of the
Rickshaw to pay an amount of Rs.5,78,000/- to the
claimants with interest @ 9% p.a. from the date of
application till realisation.
* Being aggrieved and dissatisfied with the
impugned judgment and award, the appellants - original
claimants have filed the present appeal.
4. Learned advocate for the appellant has submitted that the
deceased was 39 years of age and was earning Rs.8,000/-
per month from practice as an advocate. In absence of any
documentary evidence, learned tribunal considered
income of deceased at Rs.4,800/- per month and 1/3rd
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was deducted towards personal and living expenses. It is
submitted that learned tribunal has exonerated insurance
company from its liability to pay compensation as the
driver of Rickshaw was found not having a valid driving
licence. It is also submitted that Exh.38 is a certificate
certifying that the driver of Rickshaw was holding LMV NT
w.e.f. 3.4.2008. It is further submitted that on the date of
accident, the driver of Rickshaw was driving the same
category and type of vehicle for which he was holding
licence and, therefore, the insurance company cannot be
absolved from its liability. He has placed reliance upon
decision of the Hon'ble Apex Court in the case of
Mukund Dewangan v. Oriental Insurance Co. Ltd.
reported in 2014(4) SCC 663.
5. Per contra, learned advocate for respondent/s - Insurance
Company has supported the judgment and award and
submitted that learned Tribunal has rightly considered the
evidence on record and awarded just and reasonable
compensation. The award passed by the learned Tribunal
does not require any interference looking to the facts and
circumstances of the case.
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C/FA/2334/2011 JUDGMENT DATED: 24/04/2025
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6. I have considered the submissions of learned advocates
for the respective parties and perused the Record and
Proceedings. The issue involved in the present appeal is
whether learned tribunal has rightly exonerated insurance
company from its liability or not.
7. The contention of respondent - insurance company that
the driver of the Rickshaw was not holding valid driving
licence can be tested from the document produced at
Exh.38 which is a certificate to drive licence issued by
RTO. As per the said certificate, opponent No.1 was
holding license of LMV NT. As per the deposition of the
Officer of RTO, the licence was valid from 18.9.2002 to
17.9.2020. On the date of accident, opponent No.1 was
holding valid driving license. The RC Book which is
produced at Exh.36 would indicate that the vehicle was
LMV and would fall under the category of LMV.
8. In the case of Mukund Dewangan (Supra) in paragraph
Nos.60.1 and 60.2, Hon'ble Apex Court observed as under:
"60.1. "Light motor vehicle" as defined in Section 2(21) of the
Act would include a transport vehicle as per the weight
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prescribed in Section 2(21) read with Sections 2(15) and
2(48). Such transport vehicles are not excluded from the
definition of the light motor vehicle by virtue of Amendment
Act 54 of 1994.
60.2. 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
roadroller, "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 roadroller, 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 of 1994 and 28-3-2001 in the form."
9. In view of the fact which is coming out on record that the
gross vehicle weight does not exceed 7500 kg and,
therefore, it would fall under the category of LMV.
10. Considering the law laid down by the Hon'ble Apex Court,
the insurance company has wrongly been exonerated on
the ground of not having valid driving licence.
Resultantantly, the impugned judgment and award is
quashed and set aside to the extent of exoneration of
insurance company from its liability.
11. On the question of dependency, it is not a case made by
claimants that claimant No.3 being a sister of deceased
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was dependent upon her brother. It is also not coming out
from the record as well as learned advocate for the
appellant also could not point out whether the sister is
married or not on the date of accident. In absence of any
material, it would be just and proper to deduct ½ towards
personal and living expenses.
12. In view of the above facts and circumstances, the
claimant/s is/are entitled to following amount of
compensation under the different heads:
Sr. Name of the Head Compensation
No. Amount
(In Rs.)
1 Future loss of Income :
Income per month 4800
(+)
Prospective Income (40%)
4800+1920 6720
(-)
Personal Expenses
Rs.6720X1/2nd 3360
Rs.3360/- X 12 X 15 multiplier 6,04,800/-
2. Loss of Estate 18,150/-
3. Funeral Expenses 18,150/-
4. Loss of Consortium 96,800/-
Total Compensation 7,37,900/-
(-) Awarded Amount 5,78,000/-
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Enhanced Amount 1,59,900/-
Interest @ 7.5%
13. Therefore, total amount of compensation would come to
Rs.7,37,900/- is required to be awarded with interest
accrued thereon from the date of claim petition till its
realisation, which would meet the ends of justice. It is
pertinent to note that learned Tribunal has awarded
Rs.5,78,000/- to the claimant/s, therefore, Rs.1,59,900/-
(Rs.7,37,900-5,78,000) is required to be awarded with
7.5% p.a. interest.
14. For the reasons recorded hereinabove, the following order
is passed:
[A]. The present appeal is partly allowed
accordingly in above terms.
[B]. The Insurance Company is directed to
deposit the enhanced amount Rs.1,59,900/- with
7.5% p.a. interest from the date of claim petition
till its realisation before the concerned Tribunal,
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within a period of six weeks from the date of
receipt of this order.
[C]. The Tribunal shall disburse the entire
awarded amount lying in the FDR and / or with the
Tribunal, with accrued interest thereon if any, to the
claimant, by `Account Payee Cheque' / RTGS /
NEFT', after proper verification and after following
due procedure.
[D]. While making the payment, the Tribunal
shall deduct the Courts fees, if not paid, in
accordance with the Rules.
[E]. Record & Proceedings, if any, be sent
back to the concerned Tribunal, forthwith.
(D. M. DESAI,J)
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