[Cites 3, Cited by 0]
Gujarat High Court
National Insurance Company Ltd vs Legal Heirs Of Decd Vipulbhai Polabhai ... on 4 December, 2025
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C/FA/3275/2013 JUDGMENT DATED: 04/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3275 of 2013
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
NO. 1 of 2025
In R/FIRST APPEAL NO. 3275 of 2013
With
R/CROSS OBJECTION NO. 30 of 2015
In
R/FIRST APPEAL NO. 3275 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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NATIONAL INSURANCE COMPANY LTD.
Versus
LEGAL HEIRS OF DECD VIPULBHAI POLABHAI KHUNT- LAXMIBEN
VIPULBHAI KHUNT & ORS.
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Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1,2,3,4,5
RULE SERVED for the Defendant(s) No. 6
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CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 04/12/2025
ORAL JUDGMENT
1. The captioned appeal and cross objections are filed against the
impugned judgment and award dated 05.08.2013 passed by the learned
Motor Accident Claims Tribunal, Rajkot, in MACP No.1188/2002,
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whereby the learned Tribunal has partly allowed the claim petition and
awarded a sum of Rs. 6,83,000/- as a compensation along with interest
at the rate of 8% per annum from the date of filing of claim petition till its
realization. The First Appeal is filed by the insurance company, while
the original claimants have filed the cross objections.
2. The succinct facts leading to file the cross objections are that on
07.09.2002, deceased-Vipulbhai Polabhai Khunt was riding on his Hero-
Honda motorcycle bearing registration no.GJ-3-EE-486 at very
moderate speed on the correct side of the road by following the traffic
rules, in the meantime, the respondent no.1/driver and owner of tanker
came driving his tanker bearing registration no.GRP-4724 in rash and
negligent manner at very excessive speed, without following the traffic
rules and dashed with the motorcycle of deceased-Vipulbhai Polabhai
Khunt. In the said accident, the said Vipulbhai Polabhai Khunt sustained
grievous injuries and succumbed to the injuries. It is also the case of the
original claimants before the learned Tribunal that at the time of
accident, the deceased was aged about 22 years and he was working in
M/s. The Standard Agro Engineers and was doing the work of Molding
and thereby earning Rs.15,000/- per month. Therefore, the original
claimants filed the claim petition for seeking the compensation of
Rs.15,00,000/-.
3. On being served, the respondent no.1 herein had chosen not to
appear before the learned Tribunal; however, the respondent no.2-
insurance company/appellant herein filed the written statement at Exh.9
and thereby, denying the averments made in the claim petition and
more particularly, denied the factum of age, income, injury and accident
and prayed for dismissal of the claim petition. The appellant/insurance
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company had also pleaded that the driver of the offending vehicle was
not having the valid driving license to drive the said tanker. Therefore,
the conditions of the policy have been breached and hence, the
insurance company is not liable to satisfy the award.
4. Having considered the pleadings of the parties, the learned
Tribunal vide Exh.17, framed the following issues:-
(1) Whether the applicant proves that the deceased died due to serious
injuries he/she sustained due to rash and/or negligent driving of the
driver of vehicle involved in the accident?
(2) Whether the applicants are entitled to claim compensation, if yes,
what amount and from whom?
(3) What order?
5. In order to prove their claim, the original claimants/objectors
herein led the following oral as well as documentary evidence on
record:-
Sr. No. Evidences Exh. No.
1. Affidavit in examination-in-chief of Laxmiben 18
Vipulbhai Khunt
2. Deposition of Govindbhai Bhagwanbhai Patel 37
4. Copy of panchnama of place of accident 25 & 43
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12. Vouchers of M/s. The Standard Agro Engineers 40
(collectively)
for making the payment
13. Certificate issued by M/s. The Standard Agro 41
Engineers
6. The appellant/insurance company has proved the insurance
policy of tanker and certificate of driving license of respondent
no.1/driver at Exhs.33 and 34 respectively. Statement of Ugabhai
Virabhai Miyatra-Ahir dated 09.09.2002 and statement dated
07.09.2002 were also produced on record. Except these, no other
evidence has been led by the insurance company.
7. Being aggrieved and dissatisfied with the impugned judgment and
award, the appellant/insurance company has preferred the appeal on
the ground that the driver-cum-owner/respondent no.6 herein was not
holding the valid and effective driving license to drive the tanker bearing
registration no.GRP-4724 at the time of accident, while the original
claimants/respondent nos.1 to 5 herein filed the cross objections for
enhancement of compensation.
8. Heard learned counsels for the parties.
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9. Mr. Sunil B. Parikh, learned counsel appearing on behalf of the
insurance company vehemently submitted that at the time of accident,
the diesel was being transported in the said tanker. In support of his
contention, he placed the reliance on the statements of the driver,
recorded by the prosecution agency on 07.09.2002 and 09.09.2002.
Relying upon the statements of the driver, he submitted that in para 3 of
the statement dated 07.09.2002, the driver of the offending tanker has
admitted in his statement before the police that at the time of accident,
the diesel was being transported. He further submitted that the
insurance company has proved the certificate of license at Exh.34. The
perusal of the certificate of driving license at Exh.34 would show that
there is no endorsement on the driving license of the respondent no.6 to
drive the vehicle carrying the dangerous or hazardous goods.
Therefore, at the relevant point of time, the driver of the offending tanker
was not holding the license to drive the said vehicle. He further
submitted that the learned Tribunal has not appreciated the contention
of the insurance company and directed the insurance company to
satisfy the award. He further submitted that there is a fundamental
breach of policy condition, therefore, the insurance company at the first
instance, would have been directed to satisfy the award and thereafter,
the insurance company ought to have been permitted to recover the
same from the driver-cum-owner of the vehicle.
10. On the other hand, Mr. Hemal Shah, learned counsel appearing
on behalf of the original claimants vehemently submitted that the
respondent no.6/driver-cum-owner of the tanker herein was holding the
license; however, there was no endorsement to drive the hazardous
vehicle at the time of accident. He further submitted that the insurance
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company at the first instance, ought to have been directed to satisfy the
award and thereafter, may recover the same from the owner and driver
of the vehicle. In support of his contentions, learned counsel for the
original claimants placed the reliance upon the judgment of Hon'ble
Supreme Court rendered in the case of Chatha Service Station Vs.
Lalmati Devi, reported in 2025 (0) AIJEL-SC 75053.
11. So far as the quantum is concerned, learned counsel for the
original claimants/appellant vehemently submitted that at the time of
accident, the deceased was gainfully employed with M/s. The Standard
Agro Engineers as a Moulder and was earning monthly salary of
Rs.15,000/-; however, the learned Tribunal had determined the income
of the deceased at the time of accident at Rs.3,000/- per month. He
further submitted that in order to prove the income of the deceased, he
examined Govindbhai Bhagwanbhai Patel at Exh.37. He further
submitted that the said witness proved the vouchers on record and
thereby established the fact that the deceased was getting Rs.15,000/-
per month as a salary by working as a Moulder in M/s. The Standard
Agro Engineers. However, the learned Tribunal has not relied upon the
said evidence and determined the income of the deceased at very lower
side. He further submitted that considering the evidence of the
deceased on record, the notional monthly income ought to have been
determined at Rs.7,000/- per month. He further submitted that it is
undisputed fact that at the time of accident, the deceased was aged
about 22 years. He further submitted that the learned Tribunal has
awarded a meager amount under the heads of loss of estate, loss of
consortium and funeral expenses, therefore, he prayed for
enhancement of the compensation awarded under these heads also.
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12. In rebuttal, Mr. Sunil B. Parikh, learned counsel appearing on
behalf of the insurance company vehemently submitted that the learned
Tribunal has rightly assessed the compensation. Therefore, there is no
infirmity in the impugned judgment and award qua quantum, therefore,
the cross objections are liable to be dismissed.
13. Having considered the submissions of the learned counsels for
the parties and having gone through the record, it is to be noted that
there is no dispute about the negligence and age of the deceased. The
dispute has been raised only in respect of the income of the deceased.
It has been pleaded in the claim petition that the deceased was working
with M/s. The Standard Agro Engineers as a Molder and was earning
Rs.15,000/- per month. In order to prove the income, the original
claimants have examined Govindbhai Bhagwanbhai Patel at Exh.37;
however, the learned Tribunal has not believed the version of
Govindbhai Bhagwanbhai Patel and observed that the income of the
deceased was not proved and determined the income at Rs.3,000/- per
month. Perusal of the impugned judgment transpires that the learned
Tribunal has not rightly relied upon the deposition of the said
Govindbhai Bhagwanbhai Patel; however, there is no dispute that at the
time of accident, the deceased was doing the work of Moulder. The
accident occurred in the year 2002, therefore, in the year 2002, the
Moulder would have easily earned Rs.6,000/- per month. Therefore, it
would be just and proper if the income of the deceased is reassessed at
Rs.6,000/- per month and accordingly, I reassess the income of the
appellant at Rs.6,000/- per month.
14. It is not in dispute that at the time of accident, the deceased was
aged about 22 years, therefore, 40% of the notional income is required
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to be added on account of future prospects of the deceased. Therefore,
after adding 40% of the monthly income to the income of the deceased,
the notional monthly income would come to Rs.8,400/- i.e.
(6,000+6,000X40%).
15. At the time of accident, the deceased was survived by 5 legal
representatives, therefore, 1/4 of the notional monthly income is
required to be deducted on account of the personal expenses of the
deceased. Therefore, after deducting 1/4 of the notional monthly
income, the net monthly income would come to Rs.6,300/- i.e. (8,400-
8,400X1/4) for calculating the future loss of dependency. It is on record
that at the time of accident, the deceased was aged about 22 years,
therefore, after applying the multiplier of 18, the future loss of
dependency would come to Rs.13,60,800/- i.e.(6,300X12X18).
16. It is evident from the record that the deceased was left behind by
his widow, two minor sons and parents. In view of judgment of National
Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16)
SCC 680 and Magma General Insurance Company Limited Vs.
Nanu Ram @ Chuhru Ram and Ors., reported in 2018 (18) SCC 130,
all the legal representatives are entitled for the compensation under the
head of loss of consortium; however, the learned Tribunal has awarded
a meager amount of Rs.10,000/- under the head of loss of consortium.
Therefore, the compensation awarded under this head is required to be
enhanced and accordingly, a sum of Rs.2,42,400/- i.e. (48,400X5).
17. The learned Tribunal has awarded a meager amount under the
heads of loss of estate and funeral expenses. Therefore, in view of ratio
of judgment of Hon'ble Apex Court rendered in the case of Pranay Sethi
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(supra) and Nanu Ram @ Churu Ram (supra), a sum of Rs.18,150/- is
awarded under the head of loss of estate and similarly, a sum of Rs.
18,150/- is awarded under the head of funeral expenses. Thus, in view
of the above, the original claimants shall be entitled for the following
amount of compensation under the following heads:-
Sr. No. Particular Amount
1. Future loss of dependency 13,60,800/-
2. Loss of consortium 2,42,000/-
3. Loss of estate 18,150/-
4. Funeral expenses 18,150/-
Total 16,39,100/-
18. The learned Tribunal has awarded a sum of Rs.6,83,000/- as a
compensation along with interest at the rate of 8% per annum,
therefore, the original claimants shall be entitled for additional amount of
compensation of Rs.9,56,100/- i.e. (16,39,100-6,83,000). The learned
Tribunal has awarded the interest at the rate of 8% per annum,
therefore, the claimants shall also be entitled for interest at the rate of
8% per annum on additional amount of compensation from the date of
filing of claim petition till its realization.
19. So far as the contention of the learned counsel for the insurance
company that the respondent no.6/driver-cum-owner of the offending
tanker herein was not holding the valid driving license is concerned, the
said license has been proved at Exh.34. Perusal of the said license
transpires that that there was no endorsement on the license to drive
the transport vehicle carrying the hazardous goods. It is evident from
the statement of the driver-cum-owner dated 07.09.2002 that at the time
of accident, the diesel was being transported in the said tanker. Thus, it
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is evident that at the time of accident, the said tanker was loaded with
the hazardous goods. Therefore, the driver-cum-owner of the offending
tanker was not holding the valid and effective driving license to drive the
said vehicle. Recently, the Hon'ble Apex court in case of Chatha
Service Station (supra), in the similar facts and circumstances where
the transport vehicle was carrying the dangerous and hazardous goods,
but not holding the requisite endorsement to drive the transport vehicle
which carrying the dangerous and hazardous goods, held the insurance
company liable to satisfy the award and thereafter, permitted the
insurance company to recover the said amount of compensation from
the owner of the vehicle. Thus, considering the ratio of the aforesaid
judgment, the appellant/insurance company is directed at the first
instance to satisfy the award and thereafter to recover the awarded
amount including interest from the owner and driver of the vehicle.
20. In view of the above discussion, the captioned appeal as well as
cross objections stand allowed partly. The appellant/insurance company
shall deposit the additional amount of compensation along with interest
within a period of six weeks from today. Thereafter, the insurance
company shall be at liberty to recover the said amount from the owner-
cum-driver of the offending vehicle by way of filing the execution
petition.
21. Upon depositing of the said amount of compensation, the learned
Tribunal shall disburse the entire amount of compensation along with
interest to the original claimants/appellants after deducting deficit of
Court fee, if any, after due verification. The amount, if any, lying
deposited with the registry of this Court, the same shall be transmitted
to the learned Tribunal concerned. The interim application, if any,
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stands disposed of. No order as to costs.
22. Record & Proceedings, if any, be sent back to the learned
Tribunal concerned.
(MOOL CHAND TYAGI, J)
HARSHIT
