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Gujarat High Court · body

2025 DIGILAW 14 (GUJ)

Vimalaben Ratilal More v. Sukhmay K. Roy

2025-01-09

J.C.DOSHI

body2025
ORDER : 1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988 , is preferred by the appellants – original claimants being aggrieved and dissatisfied with the judgment and award dated 7.6.2014 passed by the Motor Accident Claims Tribunal, Surat in Motor Accident Claim Petition No.89 of 2010. 2. Brief facts of the case are that husband of the appellant namely Ratilal More on 24/12/2009, was going on his bicycle carrying the goods for selling nuts and grams. It is submitted that he was driving his bicycle slowly. cautiously, observing the rules of traffic. It is submitted when he was passing near the place of accident, at that time, the driver of Splendor Motorcycle No.GJ-5-EQ-3023 came driving his motorcycle in full speed, rashly and negligently, and in the manner endangering human life and without blowing horn, and dashed with the bicycle on which the deceased was going, causing accident. It is submitted that due to said collision the deceased sustained serious injuries on head and on various parts of the body, and he succumbed to the said injuries and died. Therefore, the appellants have filed claim petition to the tune of Rs. Rs.3,82,833/- against the respondent. 3. Finding fault with impugned judgment and award, learned advocate Mr. Modi would submit that in case of Jawahar Singh Versus Bala Jain , 2011 (6) SCC 425 , in a case where the offending vehicle was driven by minor and had no licence, the Hon’ble Apex Court passed order of pay and recover. The ratio laid down in that case is failed to notice by the learned Tribunal and therefore, the learned Tribunal has committed serious error. Second submission of learned advocate Mr. Modi is that for calculation of just and fair compensation, the learned Tribunal has taken up the income of the deceased to Rs.2500/- per month, however, the rate of minimum wage was much more than it. Therefore, he would submit that yearly income of the deceased is to be taken at Rs.40,000/- and also submitted that the amount of compensation is to be assessed on the structure formula as per second schedule annexed to section 163A of the MV Act since the claim petition was filed u/s 163A of the MV Act on the ground of no fault liability. The above two grounds are urged to allow the First Appeal. 4. Per contra, learned advocate Mr. The above two grounds are urged to allow the First Appeal. 4. Per contra, learned advocate Mr. Palak Thakkar would submit that the learned Tribunal has not committed any error in exonerating the insurance company, as the offending vehicle was admittedly driven by the minor having no licence at the relevant time and therefore, he submits to dismiss this appeal. 5. Having heard learned advocates for the respective parties and on perusing the impugned judgment and award, the fact, which could be noticed that on unfortunate day on 24.12.2009, deceased Ratilal was riding his cycle carrying nuts and grams for selling and while he was passing near the place of accident, the offending vehicle motorcycle were driven rashly and negligently dashed with the cycle resulted into road accident. The rash and negligent driving of the motorcycle has been reported to the concerned police station by filing FIR against the driver of the motorcycle. Deceased Ratilal has received serious injuries from the road accident and later on succumbed to it. 6. Legal heirs of the deceased therefore, filed claim petition u/ s 163 of the MV Act claiming compensation of Rs.3,82,833/- along with cost and interest. The learned Tribunal disposed of the claim petition taking up yearly income of the deceased to Rs.30,000/- and granted compensation as per second schedule annexed to section 163A of the MV Act. Total compensation arrived at by the learned Tribunal is Rs.3,09,500/- with 9% interest per annum from the date of filing the claim petition till realization. The insurance company was exonerated by the learned Tribunal on the reason and ground that at the time of the road accident, the offending vehicle was drive by 16 years old boy having no licence and as such, this fact breaches the terms and conditions of the policy and the insurance company therefore, is not liable to pay compensation for and on behalf of the owner of the offending vehicle. The claim was allowed against the opponent No.1 – owner of the vehicle. 7. It is undisputed that the deceased was third party. It is equally undisputed that at the time of the road accident, the offending vehicle motorcycle was ridden by the minor and had no licence to drive the vehicle. The claim was allowed against the opponent No.1 – owner of the vehicle. 7. It is undisputed that the deceased was third party. It is equally undisputed that at the time of the road accident, the offending vehicle motorcycle was ridden by the minor and had no licence to drive the vehicle. The issue in identical fact situation, the Hon’ble Apex Court in case of Jawahar Singh (supra), confirmed the finding of the learned Tribunal of exonerating the insurance company, but directed to pay the amount to the claimant and recover the same from the owner. Relevant para 9 and 11 reads as under:- “9. On behalf of Respondent No.6, National Insurance Company Ltd., it was sought to be urged that at the time of the accident, the motorcycle was being driven in breach of the terms and conditions of the Insurance Policy and, accordingly, the Insurance Company could not be held liable for making payment of the compensation awarded by the Motor Accident Claims Tribunal. Apart from the fact that Jatin, who was riding the motorcycle, did not have a valid driving licence, it had also been established that he was a minor at the time of the accident and consequently the Insurance Company had been rightly relieved of the liability of payment of compensation to the Claimants and such liability had been correctly fixed on the owner of the motorcycle, Jawahar Singh. It has been well settled that if it is not possible for an awardee to recover the compensation awarded against the driver of the vehicle, the liability to make payment of the compensation awarded fell on the owner of the vehicle. It was submitted that in this case since the person riding the motorcycle at the time of accident was a minor, the responsibility for paying the compensation awarded fell on the owner of the motorcycle. In fact, in the case of Ishwar Chandra V/s. Oriental Insurance Co. Ltd. [(2007) 3 AD (SC) 753], it was held by this Court that in case the driver of the vehicle did not have a licence at all, the liability to make payment of compensation fell on the owner since it was his obligation to take adequate care to see that the driver had an appropriate licence to drive the vehicle. Before the Tribunal reliance was also placed on the decision in the case of National Insurance Co. Before the Tribunal reliance was also placed on the decision in the case of National Insurance Co. Ltd. V/s. G. Mohd. Vani & Ors. [ 2004 ACJ 1424 ] and National Insurance Co. Ltd. V/s. Candingeddawa & Ors. [ 2005 ACJ 40 ], wherein it was held that if the driver of the offending vehicle did not have a valid driving licence, then the Insurance Company after paying the compensation amount would be entitled to recover the same from the owner of the vehicle. It was submitted that no interference was called for with the judgment and order of the High Court impugned in the Special Leave Petition. 10. xxxx 11. We cannot shut our eyes to the fact that it was Jatin, who came from behind on the motorcycle and hit the scooter of the deceased from behind. The responsibility in causing the accident was, therefore, found to be solely that of Jatin. However, since Jatin was a minor and it was the responsibility of the Petitioner to ensure that his motorcycle was not misused and that too by a minor who had no licence to drive the same, the Motor Accident Claims Tribunal quite rightly saddled the liability for payment of compensation on the Petitioner and, accordingly, directed the Insurance Company to pay the awarded amount to the awardees and, thereafter, to recover the same from the Petitioner. The said question has been duly considered by the Tribunal and was correctly decided. The High Court rightly chose not to interfere with the same. 8. It is not the case of the insurance company that driver of the motorcycle was not negligent in causing the road accident nor he was driving the motorcycle rashly and negligently the day of the incident. Rather, it is proved with plenty of evidence that minor was riding the motorcycle at excessive speed and dashed the cycle ridden by the deceased from back side resulted into road accident and further, the injuries to the deceased to which he could not survive and lost his life. It was the duty of the owner of the vehicle to see that the minor cannot drive the vehicle on the road. However, the owner has failed in observing his duty. But since, the claimant is third party, technicality of breach of terms and conditions between the owner and the insurer cannot be made him sufferer. 9. It was the duty of the owner of the vehicle to see that the minor cannot drive the vehicle on the road. However, the owner has failed in observing his duty. But since, the claimant is third party, technicality of breach of terms and conditions between the owner and the insurer cannot be made him sufferer. 9. In view of above, the learned Tribunal was though justified in exonerating the insurance company from liability of paying the compensation could have passed order of pay and recover to meet with ends of justice. According to this Court, it is a fit case to pass order of pay and recover. 10. As far as enhancement in the compensation as requested by the appellants are concerned, let take note of fact that the road accident took place on 24.12.2009 and the deceased was in his 50s. The rate of minimum wage for the skilled person was around Rs.3880/-. The learned Tribunal has taken up Rs.2500/- as monthly income of the deceased to calculate the compensation under the structure formula. The claimant have filed the claimant u/s 163A of the Act claiming compensation as per structure formula stated in second schedule. Thus, it permits the Court to take Rs.40,000/- towards yearly income of the deceased. In the present case, since rate of minimum wage on date of the road accident was higher than the permissible limit of taking income u/s 163A of the MV Act, Rs.40,000/- has been adopted as yearly income of the deceased. The deceased was more than 40 years of age but less than 45 years and therefore, motorcycle of 14 would be applied. However, the claim is required to be reduced by 1/3rd towards the expenses which the victim would have incurred towards himself had he been alive. As per structure formula, Rs.2000/- is to be awarded for funeral expenses, Rs.5000/- for loss of consortium and Rs.2500/- is to be awarded for loss of estate. Particulars Amount (Rs.) Future dependency Loss Rs.3,73,334/- (Rs.40,000/- towards yearly income as per structure formula x 14=Rs.5,60,000/- - 1/3 = Loss of Estate 2500/- Loss of consortium 5000/- Funeral expenses 2000/- Total 3,82,834/- Less compensation already awarded 3,09,500/- Additional amount which is awarded 73,334/- 11. Particulars Amount (Rs.) Future dependency Loss Rs.3,73,334/- (Rs.40,000/- towards yearly income as per structure formula x 14=Rs.5,60,000/- - 1/3 = Loss of Estate 2500/- Loss of consortium 5000/- Funeral expenses 2000/- Total 3,82,834/- Less compensation already awarded 3,09,500/- Additional amount which is awarded 73,334/- 11. Therefore, I hold that the claimants are entitled to get the enhanced compensation of Rs.73,334/- with 9% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same. 12. For the reasons recorded above, the following order is passed. 12.1 The present appeal is partly allowed. 12.2 The claimant would be entitled to total amount of Rs.3,82,834/- (Rs.3,09,500/- + Rs.73,334/- as enhanced compensation) with 9% interest from the date of filing the claim petition till realization from the original opponent No.1. 12.3 The insurance company shall at first instance shall deposit the entire amount of compensation including interest and cost before the learned Tribunal within six weeks from today and shall be at liberty to recover the same from the owner of the offending vehicle by executing this judgment and award. 12.4 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 claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure in equal proportion. 12.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. 12.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.