NEW INDIA ASSURANCE CO LTD vs. UMESHBHAI BABULAL VAGHELA

C/FA/77/2012 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 77 of 2012 With R/CROSS OBJECTION NO. 38 of 2012 In FIRST APPEAL NO. 77 of 2012

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE B.N. KARIA ========================================================== 1      Whether Reporters of Local Papers may be allowed to see the judgment ? 2      To be referred to the Reporter or not ? 3      Whether their Lordships wish to see the fair copy of the judgment ? 4      Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== NEW INDIA ASSURANCE CO LTD Versus UMESHBHAI BABULAL VAGHELA & 2 other(s) ========================================================== Appearance: MR GC MAZMUDAR(1193) for the Appellant(s) No. 1 MR HG MAZMUDAR(1194) for the Appellant(s) No. 1 MR D C SEJPAL(1322) for the Defendant(s) No. 1 MR VIRAL V DAVE(3846) for the Defendant(s) No. 2,3 ========================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE B.N. KARIA

Date : 06/09/2019

CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE B.N. KARIA) Page 1 of 21

C/FA/77/2012 CAV JUDGMENT 1. By preferring this appeal under Section 173 of the Motor Vehicles Act (In short “the Act”), present appellant has challenged the judgment and award dated 17.09.2011 passed by the Motor Accident Claims Tribunal (In short “the Tribunal”) in MACP No. 1277 of 2006 in connection with the motor vehicular accident between Motorcycle, bearing RTO registration No. GJ-3-RR-8014 and Chhakda Rickshaw (goods carriage vehicle), bearing RTO registration No. GJ-10-T-6024 on 2nd March 2006 at about 04.30 p.m. on Chandreshnagar Main road at Rajkot. 2. Short facts of the present case may be summarized as under: 2.1 As per the averments made by the claimant in his claim petition, on 2nd March 2006 at about 4.30 pm, claimant was proceeding with his Hero Honda Motorcycle, bearing RTO registration No. GJ-3-RR-8014 on Chandreshnagar Main road. Near Fire brigade, one Chhakda Rickshaw drove by his driver rashly and negligently, endangering to the human life collided with the Hero Honda Motorcycle drove by the claimant. As a result of this accident, the claimant fell down on the road and received injuries on his right hand. RTO registration number of Page 2 of 21

C/FA/77/2012 CAV JUDGMENT Chhakda Rickshaw was found as GJ-10-T-6024 by the claimant. That, on account of rash and negligent driving of the opponent No.1, this accident was occurred. That, the claimant registered a Police Complaint, being CR. No. I-62 of 2006 on 2nd March 2006. It is further averred that date of birth of claimant is 23.11.1975 and at the time of accident, he was having age of 31 years. He was practicing as Doctor having Degree of M.D.. That, he had sustained disability of 50% to his right hand. That, his monthly income was chronologically reduced on account of disability sustained by him to his right hand. On account of different heads, it was requested by the claimant to pass award of Rs. 20,00,000/- holding liability of the opponents with the interest @ 20 % p.a. Thereafter, by filing amendment application Exh. 21 and as per order passed thereunder by the Tribunal, the amount of compensation sought for was increased to Rs. 40,00,000/-. 2.2 On receiving notice issued by the Tribunal, the present appellant, who was the original opponent no.3, appeared before the Tribunal and filed its written statement vide Exh. 13 The averments made by the claimant in his claim petition were not admitted in respect of driving motorcycle, bearing RTO Page 3 of 21

C/FA/77/2012 CAV JUDGMENT registration No. GJ-3-RR-8014 on 2nd March 2006 at Chandreshnagar Main Road and opponent No.1 drove his Chhakda Rickshaw, bearing registration No. GJ-10-T-6024 rashly and negligently collided with the motorcycle of the claimant. The averments made in Paras No. 1 to 11 of the claim petition were not admitted by this Opponent. Averments made in respect of the age, income and injuries sustained by the claimant resultant permanent disablement, time, place and date of accident, involvement of vehicle, bearing RTO registration No. GJ-10-T-6024 in the accident, name and address of the driver, owner and Insurance Company of the said vehicle were also denied by this opponent. It was further denied that this accident took place because of sole negligency on the part of the driver of chhakdo rickshaw. The statement regarding occupation, hospitalization, difficulties being suffered by the claimant, expenses towards medicines, treatment, nutritious food, attendants, transportation charges etc, were also not admitted and completely denied. The contents with regard to future loss of income, actual loss of income, pain, shock and sufferings and loss of earning capacity were also denied by this opponent. It was, therefore, submitted Page 4 of 21

C/FA/77/2012 CAV JUDGMENT that claimant is not entitled to claim of Rs. 20 lacs or any other amount, as prayed by him. It is further averred that driver of chhakdo rickshaw was not holding effective and valid driving licence to drive the same. Therefore also, this opponent is not liable to pay any amount of compensation. Without admitting any liability, it was submitted that incident took place because of sole negligency on the part of the claimant himself. That, Chhakada Rickshaw driver was driving his vehicle with moderate speed and on the correct side of the road and was blowing horn as and when found necessary. But, the claimant himself had driven his Hero Honda Motorcycle at an excessive speed, rashly and negligently, so as to endanger human life, without observing traffic rules and came on wrong side and dashed with the Chhakdo rickshaw and caused accident. Hence, it was requested by this opponent to dismiss the claim petition. 2.3 Learned Tribunal, after considering the averments and pleadings made by either side, was pleased to frame the issues vide Ex. 45. After considering the oral as well as documentary evidence, learned Tribunal awarded compensation of Rs. 5,25,045/- (Rupees Five Lacs Twenty Five thousand Fourty Five Page 5 of 21

C/FA/77/2012 CAV JUDGMENT only) together with proportionate costs of the claim petition and interest thereof @ 9% p.a. from the date of filing of the claim petition till its realization by holding liability of the respondents No. 1, 2 and 3 jointly and severally. 3. Heard learned advocate Mr. H. G. Mazmudar and learned advocate Mr. D. C. Sejpal for the respective parties in the appeal and cross-objection. No arguments were advanced for and on behalf of the respondents No.2 and 3 in the appeal. 4. Learned advocate for the appellant-Insurance Company has made arguments in the Appeal as well as cross-objection that the judgment and award passed by the Tribunal is against the provisions of law and evidence available on record. He further submitted that the accident was the result of head on collision, as both the vehicles were coming from opposite directions and the road was quite wide enough, and therefore, both the drivers were able to see each other and the injured could have avoided the accident. That, though the injured was also negligent, learned Tribunal ought to have considered 50% negligency on his part. However, learned Tribunal has considered contributory negligency to the extent of 25% of the injured-claimant, which is contrary to evidence on record. Page 6 of 21

C/FA/77/2012 CAV JUDGMENT That, driver of the Chhakdo Rikshaw was not holding a valid and effective driving licence on the date of accident. That, witness from RTO Office was examined and as per his deposition, driver was holding licence from 14th December 1995 to 31st May 2007, which was not valid and effective driving licence for driving vehicle ie., Rickshaw, bearing RTO registration No. GJ-10-T-6024, as it was a goods carrying vehicle. That, driver was not authorized to drive the said Rickshaw for transport goods, and therefore, insurance company cannot be held liable for payment of compensation. That, there was no remarks or endorsement in a driving licence for transport of goods, which was renewed from 1st June 2007. That TVA remarks was not authenticated. However, learned Tribunal has committed an error in passing an award in favour of the claimant. On these grounds, learned advocate for the appellant-Insurance Company has requested to quash and set aside the impugned judgment and award passed by the Tribunal and allow the appeal as well as to dismiss the cross- objections. 5. From the otherside, learned advocate Mr. D. C. Sejpal for the respondent no.1-Claimant supported the impugned Page 7 of 21

C/FA/77/2012 CAV JUDGMENT judgment and award passed by learned Tribunal and made arguments in the Appeal as well as cross objection that learned Tribunal has committed no error in passing the impugned judgment and award in favour of the claimant. That, an FIR was lodged against the driver of Rickshaw, bearing RTO registration No. GJ-10-T-6024 by the claimant himself. That, Rickshaw was a bigger vehicle than motorcycle of the claimant. That, claimant was examined on oath wherein he has clearly explained the circumstances and manner of accident. While inviting attention to the FIR and panchnama, learned advocate submitted that the facts and circumstances of the case clearly suggests that Rickshaw driver was responsible for occurrence of accident. However, Tribunal has considered 25% negligency on the part of the claimant, as there was no negligency on the part of the claimant for causing an accident. That, vide Exh. 59, certificate issued in favour of the opponent no.1 was produced showing that he was possessing a driving licence of A/Rixa (N.T.) for the period from 14th December 1995 to 31st May 2007. That, driving licence was valid on the date of accident. That, driving licence was also produced vide Exh. 60. There was an endorsement of T.V.A. in the licence. Page 8 of 21

C/FA/77/2012 CAV JUDGMENT Moreover, licence clearly authorizes plying of vehicle as a “goods carrying vehicle” by the opponent no.1. Witness Ex. 58 has verified the record of computerized driving licence and question would not remain as to why the claimant may deny the compensation. That, opponent no.1 was qualified to obtain driving licence for goods carrying vehicle by an endorsement of T.V.A. That, subsequently driving licence was renewed from 1st June 2007 and an endorsement of T.V.A. was passed. Therefore, Tribunal has committed no error in holding that the opponent no.1 was authorized to drive transport vehicle ie., a goods carrying vehicle. Learned advocate, while coming to the cross objection filed by the claimant submitted that the claimant was regular income tax payer and at the time of his deposition, his current income was Rs. 80,000/- per month. That, pay slip Exh. 47 shows his net income at Rs. 72,628/- was also produced on record. The Tribunal has committed some guess work while taking into consideration income of the claimant. That, the prospective income of the claimant was required to be considered, as the age of claimant was 30 years at the time of accident. That, learned Tribunal has committed an error in considering the disability of claimant to the extent Page 9 of 21

C/FA/77/2012 CAV JUDGMENT of 15% , however, doctor has considered his disability to the extent of 50% of the particular limb where he had sustained injury. On account of pain, shock and suffering, learned Tribunal has awarded very less amount ie., to the tune of Rs. 7,500/-, which also requires to be enhanced to Rs. 25,000/-. Hence, it was requested by learned advocate for the claimant to dismiss the appeal preferred by the appellant and allow cross objection filed by the claimant. 6. Having considered the facts of the case, submissions made by learned advocate for the respective parties as well as perused the original record produced before this Court, it appears that a complaint (Exh. 26) came to be lodged by the complainant, which was produced on record. As per the complaint, on the day of this accident, when the claimant was driving his Hero Honda Motorcycle, bearing RTO registration No. GJ-3-RR-8014 and reached on Chandreshnagar Main road, near Fire brigade, at about 4.30 p.m., one Chhakdo rickshaw came from the opposite direction and collided with his motorcycle. As a result of accident, claimant fell down on the road and sustained injuries on his right hand. The driver of Chhakdo Rickshaw also stopped after the accident at the spot, Page 10 of 21

C/FA/77/2012 CAV JUDGMENT and therefore, the complainant noted the number of chhakada rickshaw as GJ-10-T-6024. Thereafter, the injured was shifted to the hospital for medical treatment. As per averments made by the complainant, on account of sheer negligency on the part of driver of Chhakada Rickshaw in driving his vehicle rashly and negligently, which collided with motorcycle of the claimant, this accident was occurred and he has sustained serious injuries. It appears that this complaint was lodged by the complainant on 2nd March 2006. During the course of investigation, Police has drawn panchnama of the scene of accident, which is produced vid Ex. 27. As per the contents, at Chandreshnagar Main road, near Fire Brigade, this accident was occurred. No other remarkable signs were found nor any article were collected during the course of panchnama by the Investigating Officer. The complainant has filed his affidavit vide Exh. 44. he has reiterated the manner of accident in his examination-in-chief stating that on 2nd March 2006 at about 4.30 p.m., while he was proceeding on Chandreshnagar Main road, driving his motorcycle, bearing RTO registration No. GJ- 3-RR-8014, at that time, near Fire Brigade, one Chhakada Rickshaw came from the opposite direction, rashly, negligently Page 11 of 21

C/FA/77/2012 CAV JUDGMENT and collided with his Hero Honda motorcycle. That, Dhirajgiri Ishvargiri Gosai was driving the said chhakada rickshaw, bearing RTO registration No. GJ-10-T-6024. He has further averred that due to sheer negligence on the part of chhakada rickshaw driver, this accident was occurred, for which he lodged a complaint before Malaviyanagar Police Station, Rajkot vide C.R.No. I-62 of 2006 on 2nd March 2006 and on the basis of investigation, charge sheet came to be filed against the opponent no.1. In cross-examination, he has admitted that at the place of accident, two vehicles can be passed as the width of the road was quite enough. He has also admitted that motorcycle driven by him and chhakada rickshaw came from the opposite direction collided with each other. He has denied that this accident occurred on account of his neglignecy, and there was no negligence on the part of the Chhakada rickshaw driver. Admittedly, complainant is an eye witness of the accident and he has lodged a complaint, making allegations against the opponent no.1-driver of chhakada Rickshaw of his negligence, while driving his vehicle which collided with the motorcycle. Chargesheet was also filed against the opponent no.1-driver of chhakada rickshaw. Driver and owner, though Page 12 of 21

C/FA/77/2012 CAV JUDGMENT served with a notice issued by the Tribunal, they did not appear, nor have filed any written submissions or led any evidence. The Tribunal, after considering evidence produced on record, has rightly considered negligence of the claimant to the extent of 25% as well as negligency of the opponent No.1- driver of chhakada rickshaw to the extent of 75%. Contents of the FIR and charge sheet, prima facie, indicates negligency of the opponent no.1 in driving his chhakada rickshaw. However, the Tribunal has rightly considered the negligency at 25% of the claimant himself. Thus, the findings recorded by the Tribunal that there was an accident between motorcycle driven by the claimant and chhakada rickshaw came from the opposite direction, being driven rashly and negligently by the driver to the extent of 75%, which resulted into an accident causing bodily injuries to the claimant cannot be said to be perverse or erroneous. 7. In the case of Sunita and Ors v. Rajasthan State Road Transport Corporation and Anrs, reported in AIR 2019 SC 994, Hon’ble Apex Court has held that in the motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident has been established, then Page 13 of 21

C/FA/77/2012 CAV JUDGMENT the Tribunal’s role would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be preponderance of probability and not the strict standard of proof beyond all reasonable doubts which is followed in criminal cases. 8. If we come to the next issue of driving licence produced vide Exh. 60, it appears that one witness Shri Dayaljibhai Balav was examined by the present appellant vide Exh. 58, as he was serving in Licence Branch of RTO Office, Rajkot as a Head Clerk, since last six months. This witness brought the certificate in respect of driving licence in favour of Dhirajgiri Ishvargiri Gosai. In his deposition, he identified signature of Mr. BR Patel, RTO Officer, and thereafter, certificate was admitted in evidence vide Exh. 59. He has deposed before the Tribunal that this driving licence was issued on 14th December 1995 and was valid up to 31st May 2007. As it was Auto Rickshaw N.T. ie., for Non Transport vehicle and holder of this licence had renewed it from 1st June 2007. He has also produced computerized certificate vide Exh. 60. Of course, he has stated that holder of this type of a driving licence cannot Page 14 of 21

C/FA/77/2012 CAV JUDGMENT drive goods carrying vehicle as T.V.A. which is necessary for a driver of goods carrying vehicle. As per his deposition, validity of a driving licence for plying transport vehicle is for a maximum period of three years. He has admitted in his cross- examination that before obtaining driving licence, necessary form has to be filled in, wherein vehicle number has to be mentioned. This form has not been brought by him. This witness has shown his readiness and willingness to produce the said form. But, on account of demolishing of his office and renovation, record was kept elsewhere and it was difficult to trace out the said record immediately. He has further stated that maximum six months’ time period would be required to trace out the record. If we examine certificate Exh. 59, it appears that Opponent No.1 was possessing a valid driving licence of Auto rickshaw (N.T.) for the period from 14th December 1995 to 31st May 2007. The driver was holding valid licence on the date of accident ie., 2nd March 2006. This licence was issued on 14th December 1995 and subsequently, it was renewed w.e.f. 1st June 2007. True, that this licence was valid for driving a non transport vehicle. It appears that there was an endorsement of T.V.A. in the licence Exh. 60, which Page 15 of 21

C/FA/77/2012 CAV JUDGMENT carries no date of endorsement nor signature of the person who had made such endorsement. According to the evidence of this witness, he has admitted that he has personally verified the record of computerized driving licence. Considering the evidence of this witness, a question would arise, as to who had made such an endorsement and when in the computerized record, as undisputedly, there is no date or signature for making such an endorsement. It can be said that such entry or endorsement is made by responsible officer of RTO with prior permission of the competent authority. He has accepted the endorsement of “T.V.A.”, as made by RTO before the occurrence of the accident, or after occurrence of the accident. As there was no satisfactory explanation made by the witness, endorsement must have been made before occurrence of the accident. This witness has also admitted that T.V.A. was necessary for driving a goods carrying rickshaw and when there was an endorsement of “T.V.A. Licence” Exh. 60, it can easily be said that the opponent no.1 was an authorized licence holder to drive a transport vehicle ie., “goods carrying vehicle”. 8. Such a question was raised before the Hon’ble Apex Page 16 of 21

C/FA/77/2012 CAV JUDGMENT Court, wherein, Hon’ble Apex Court in case of Jagdish Kumar Sood v. United India Insurance Company Limited and ors, reported in (2018) 3 SCC 697, referring to its own judgment in the case of Mukund Dewangan v. Oriental Insurance Company Limited, reported in (2017)14 SCC 663 in para 60.1 and 60.2, has observed as under: (i) ‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 of 1994. (ii) 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 road roller, ‘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 road-roller, 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 60 light motor vehicle class as enumerated above. A Page 17 of 21

C/FA/77/2012 CAV JUDGMENT 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 the cited case, there was no specific authorization to drive the transport vehicle. The Tribunal absolved the insurer on the ground that the vehicle involved in the accident was a light goods vehicle and driver has a licence to drive light motor vehicle. It was further held by the Tribunal that in absence of specific authorization to driver a transport vehicle, liability could not be fastened on the insurer, however, the Tribunal directed the insurer to pay, in the first instance, and allowed it to recover compensation from the driver and the owner. 10. The Apex Court referring to the case of Mukund Dewangan v. Oriental Insurance Co. Ltd, reported in (2017)14 SCC 663, has allowed the appeal and order of the Tribunal was set aside. Here, an endorsement of T.V.A. is found on the licence, which clearly authorizes the opponent no.1 to drive transport vehicle. Hence, arguments of learned advocate for the appellant cannot be considered. 11. No other issues were raised by the present appellant in this appeal. As the appeal being meritless, it deserves to be dismissed. Accordingly, appeal stands disposed of. Page 18 of 21

C/FA/77/2012 CAV JUDGMENT 12. If we come to the cross objection filed by the original claimant, negligency part of the claimant himself to the extent of 25% for occurrence of accident cannot be said to be wrong, illegal or perverse. In the cross-examination, claimant himself has admitted that there was sufficient width of the road and two vehicles can easily pass through. The panchnama of place of occurrence also supports the statement of claimant about the head on collision of the vehicles, as admitted by the claimant himself, and therefore, prayer for removing liability of the claimant already determined to the extent of 25% negligency, cannot be accepted by the Court, and therefore, this contention raised by the claimant is hereby rejected. 13. Admittedly, as per evidence of the claimant himself, his income was increased after occurrence of the accident and may be that income has not increased, as it was expected. It appears that the Tribunal has considered the income tax return, income certificate etc, produced on the record, and thereafter, assessed his income at Rs. 21,600/- per month. Expected income of the claimant can never be considered by the Tribunal and rightly has not been considered. Whatever the documents were produced on record by the claimants were Page 19 of 21

C/FA/77/2012 CAV JUDGMENT properly considered, while calculating compensation in favour of the claimant. The medical treatment papers collectively produced vide Ex. 48 and leave report produced vide Ex. 49 for the period from 2nd March 2006 to 6th April 2006 were also properly considered. True , in a disability certificate Exh. 52 issued by Dr. Nishit Sanghavi, Rajkot, permanent partial disablement is certified to be 50%. But, this disability certificate was admitted in evidence by both the parties, though an endorsement made by their learned advocates accepting it to be 15% for body as a whole, with their no objection. Tribunal has committed no error in considering total 15% permanent partial disability body as a whole, as agreed by both the parties. At this juncture, the claimant cannot raise his grievance in an appeal, after considering his 15% permanent partial disablement for body, as a whole. 14. Thus in the considered view of this Court, the Tribunal has committed no error in awarding compensation for the injury caused to the claimant, considering his negligency to the extent of 25%. Therefore, cross-objection preferred by the original claimant deserves to be dismissed, and accordingly dismissed. There shall be no order as to the costs in this Page 20 of 21

C/FA/77/2012 CAV JUDGMENT Appeal. Registry is directed to send back record and proceedings to the concerned Tribunal. (R.M.CHHAYA, J) (B.N. KARIA, J) K. S. DARJI Page 21 of 21