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2012 DIGILAW 174 (GUJ)

Baluben Ambalal Zala v. Ramanbhai Shivabhai Zala

2012-03-01

K.S.JHAVERI

body2012
JUDGMENT : K.S. Jhaveri, J. This appeal is directed against the judgment and award dated 30.07.2009 passed by the learned Motor Accident Claims Tribunal (Main), Kheda at Nadiad in Motor Accident Claim Petition No.243 of 2006 wherein the Tribunal has awarded a sum of Rs.1,43,900/- together with interest at the rate of 9% per annum from the date of application till realization. 2. On 19.07.2006 one Ambalal Somabhai Zala was returning to village Hathnoli after Darshan at Dakor. He was traveling in a rickshaw. It is alleged that the rickshaw was driven in a negligent manner on account of the same, the driver lost control over the same and it turned turtle. Ambalal Somabhai Zala sustained serious injuries and ultimately he succumbed to the same. The legal heirs therefore filed the aforesaid claim petition claiming a sum of Rs.2,20,700/-, wherein the aforesaid award came to be passed. The present appeal is filed at the instance of the original claimant for enhancement of the compensation. 3. Learned Advocate for the appellant submitted that the deceased was earning Rs.3300/- per month from the business of cattle breeding and he was cultivating land. He submitted that the notional income should have been taken at Rs.3000/-. 4. He further submitted that the learned Tribunal committed an error in exonerating the Insurance Company from its liability. 5. As regards liability is concerned the Tribunal in para 11 observed as under: "11. In the cross-examination, the evidence of negligence is not tested or challenged, which remain intact, couple with the certain documentary evidence the complaint, Panchnama, P.M. Note, the cause of the death is not taken to challenge. The said Riksha was insured with the Opponent No.2 subject to certain conditions. Now, in regard with the liability of the insurance company, the import contention is raised that at the relevant time the Opponent No.1 had not valid and effective driving licence, for which my attention is drawn to the Police Statement, wherein, he has clearly stated that he had no papers and driving license. Also the Riksha is not passed in R.T.O. Thus, insurance company has successively discharged the burden of proof, the fact that the vehicle involved in the accident was drive in violation of the terms and conditions of the policy. Also the Riksha is not passed in R.T.O. Thus, insurance company has successively discharged the burden of proof, the fact that the vehicle involved in the accident was drive in violation of the terms and conditions of the policy. The principle that the person who drive the vehicle having no valid and effective driving license, the insurance company cannot be held liable for the claim, no dispute for this authoritative pronouncement, rightly relied upon by the Ld. Advocate Shri I.L. Pandya. Out of which, the case of "United India Insurance Co. Ltd. v. Raesh Kumar Arora and Ors". Reported in "IV (2008) A.C.C. 709(S.C.) Supreme Court of India" is quite clear. Also the case of "Bhuwan Singh v. Oriental Insurance Co. Ltd." Reported in 2009(3) T.A.C. 33 (S.C.)", the facts that reveals from the said case that the person driving the vehicle, who had Learners License, which was expired and subsequently it was renewed and between the time the accident took place and hence at the relevant time as he was not possessing the valid and effective driving license the insurance company in speaking terms stated that the insurance company cannot be held liable to reimburse the applicant." 6. Thus, the driver was not having valid license. Therefore the Tribunal has rightly held that the Insurance Company is not liable. As regards the income is concerned the Tribunal has considered the revenue records. Considering the fact that the accident took place in the year 2006 and looking to the nature and employment of the deceased the Tribunal has fixed his income at Rs.2000/-. Learned Advocate for the appellant is not in a position to point out anything from the record to take a different view of the matter. I am also in complete agreement with the awards made under different heads. 7. In the premises aforesaid I do not find any merits in the matter. The same is therefore dismissed with no order as to costs. Appeal dismissed.