Gujarat High Court
Kanubhai Ranchhodbhai Rabari vs Mahendrasinh Bhairavsinh Parmar on 17 September, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/1733/2023 JUDGMENT DATED: 17/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1733 of 2023
With
R/FIRST APPEAL NO. 2094 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/FIRST APPEAL NO. 2094 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KANUBHAI RANCHHODBHAI RABARI
Versus
MAHENDRASINH BHAIRAVSINH PARMAR & ORS.
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Appearance:
KAASH K THAKKAR(7332) for the Appellant(s) No. 1
MR KK THAKKAR(2834) for the Appellant(s) No. 1
MR JM BAROT(143) for the Defendant(s) No. 2
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,3,5,6
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 17/09/2024
ORAL JUDGMENT
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1. First Appeal No.1733 of 2023 has been filed by the claimant for enhancement of the compensation amount awarded by the learned Motor Accident Claims Tribunal, Mahesana in M.A.C.P. No.125 of 2014 vide judgment and award dated 31.01.2023.
1.1 While First Appeal No.2094 of 2023 has been filed by the driver of Rickshaw No.GJ-2Y- 6368, for quashing and setting aside the judgment and award dated 31.01.2023 passed by learned Motor Accident Claims Tribunal, Mahesana in M.A.C.P. No.125 of 2014, whereby he has been held liable to pay compensation along with owner of Rickshaw No.GJ-2Y-6368, as per R.C. Book, respondent no.3.
2. The facts of the case, as could be culled out from the judgment of the Tribunal are that, on 15.10.2013, the appellant policeman had gone to Mahesana for official work on Motorcycle No.GJ-2-G-650, and on their return from Mahesana, Page 2 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined at about 5 O' clock in the evening, near village Devrsan, the motorcycle got punctured, at around 6 O' Clock in the evening the appellant saw one loading rickshaw passing on that road. Upon request of the appellant-claimant, opponent no.1, stopped his rickshaw being Registration No.GJ-2- Y-6368, and allowed to put the claimant's motorcycle in the loading rickshaw. The appellant-claimant too was travelling in the said rickshaw with the motorcycle, and when they reached at the place of accident, the said rickshaw turned turtle bringing the claimant down on the ground and it is stated that motorcycle fell on the back of the appellant, and thereby sustained grievous injuries.
3. Mr. Kaash K.Thakkar, learned advocate for the appellant-claimant submitted that the impugned accident happened when the appellant was on duty as a policeman and he was travelling as a part of his duty. Mr. Thakkar submitted that the Page 3 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined appellant was 28 years of age doing his service in police department by earning fixed pay of Rs.5,300/- per month, which would become a regular pay scale as per the policy of the State Government.
3.1 Advocate Mr. Thakkar submitted that as per salary chart of the appellant-claimant provided by officer of police department at Exh.50, the salary of claimant between July, 2022 to December 2022 would be Rs.1,98,164/- and his salary for January, 2023 to June, 2023 would be Rs.2,03,953/-, and accordingly his yearly income would be Rs.4,02,117/- and monthly income would be Rs.33,509.75/-, thus, stated that such income would be available for appellant on the date of pronouncement of judgment by learned Tribunal, had the accident not occurred.
3.2 Advocate Mr. Thakkar submitted that if such accident had not occurred, the appellant could even had cleared departmental examination Page 4 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined to become a PSI, and got a salary of Rs.80,000/- per month plus allowances.
3.3 Relying on the judgment of Khenyei V. New India Assurance Company Ltd. reported in (2015) 9 SCC 273, Advocate Mr. Thakkar submitted that accident occurred because of use of both the vehicles and therefore both vehicles would be jointly and severally liable; however, the learned Tribunal has exonerated the Insurance Company of Motorcycle considering that there was no use of motorcycle, as per Advocate Mr. Thakkar, such finding is against the judgment of Kalim Khan Vs. Fimidabee, reported in 2018 (7) SCC 687.
3.4 Advocate Mr. Thakkar submitted that the learned Tribunal has exonerated the Insurance Company of loading rickshaw on the grounds of non-holding of transport vehicle endorsement by the driver on his license and claimant was considered as gratuitous passenger. Page 5 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024
NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined 3.5 Mr. Thakkar, learned advocate for the appellant further submitted that respondent no.1 being licensed to drive LMW and motorcycle both, was well qualified to drive rickshaw. Mr. Thakkar stated that the loading rickshaw was having unladen weight of 439 KG and insurance policy mentions gross vehicle weight as 490 KG, therefore, the vehicle weight was below 7500 KG and for that separate endorsement is not required as per the judgment of Mukund Dewangan Vs. Oriental Insurance Co. Ltd. reported in AIR 2017 SC 3668.
3.6 Advocate Mr. Thakkar submitted that as per section 147 of the Motor Vehicles Act, 1988, an owner of goods or authorized representative of goods can travel in the goods vehicle, and under Rule 122 of the Gujarat Motor Vehicles Rules, 1989 a policeman on duty can travel in any goods vehicle; thus stated that the appellant is covered by the insurance policy as an authorized Page 6 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined representative of owner of goods and as a policeman on duty.
3.7 Advocate Mr. Thakkar submitted that as per judgment in National Insurance Co. Ltd. Vs. Baljit Kaur, reported in 2004 (1) GLH 762, the learned Tribunal ought to have ordered 'pay and recover' against the insurance company. The registered owner had sold his rickshaw, so new owner and registered owner both have been joined in the litigation; however, no any such issue was raised by the insurance company before the learned Tribunal, which is covered by the judgment of Prakash Chand Daga Vs. Savetal Sharma, reported in 2019 ACJ 1, wherein it was held that the registered owner is liable till his name is reflected in the RTO record. 3.8 Mr. Thakkar, learned advocate, further submitted that the learned Tribunal has failed to grant future prospectus as laid down in judgment of National Insurance Company Ltd. v. Pranay Page 7 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined Sethi and Ors., reported in AIR 2017 SC 5157. 3.9 Advocate Mr. Thakkar submitted that the applicant was engaged to be married at the time of accident, however, due to paraplegia on account of accident, marriage was called off and now he is unmarried till date. Advocate Mr. Thakkar submitted that no amount under the head of loss of amenities and enjoyment of life, future medical expenses and loss of marriage prospect have been granted by the learned Tribunal, and the amount under the head of Pain, shock and sufferings and special diet, attendant, Transportation with physiotherapy charges are very less.
3.10 In support of his submissions, Advocate Mr. Thakkar relied on the following judgments:
(i) Kalavatiben Motisinh Divera Vs. Kamalsinh Chandrasinh Parmar, rendered in First Appeal No.2668 of 2019 decided on 29.09.2023;Page 8 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024
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(ii) Reliance General Insurance Company Ltd. Vs. Bhagvanbhai Kamabhai Ulva, reported in 2023 GLR (2) 1106;
(iii) Ramarao Lala Borse Vs. New India Assurance Company Ltd., reported in 2018 (3) SCC 204;
(iv) Ayush Vs. Branch Manager, Relaince General Insurance Co. Ltd., reported in 2022 ACJ 1006;
(v) Kajal Vs. Jagdish Chand, reported in 2022 ACJ 1006; 2020 ACJ 1042.
4. Learned advocate Mr. Rajesh B.Soni for the appellant, driver of Rickshaw No.GJ-2-Y-6368, in First Appeal No.2094 of 2023, submitted that the learned Tribunal had Committed Serious error of law in not verifying the averments of complaint produced at Exh. 59. Advocate Mr. Soni submitted that the said Rickshaw was driven by the driver of respondent no.2, and the name of the driver was also mentioned in the complaint Page 9 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined itself.
4.1 Advocate Mr. Soni further submitted that the involvement of the present appellant is not proved before Claims Tribunal and therefore, the entire compensation is required to be set aside qua driver of the vehicle. Advocate Mr. Soni submitted that the learned Tribunal had committed serious error of law in not considering the averments of written statement of the present appellant at Exh.31, as his denial of driving the vehicle was not controverted by any of the party to the proceedings, and, therefore the entire compensation granted to the claimant is required to be set aside qua driver of the vehicle i.e. appellant.
4.2 Advocate Mr. Soni further submitted that the learned Tribunal had not believed the license of the present appellant as valid driving license, who has holding license of LMV & MCWG. Advocate Mr. Soni stated that the principle has Page 10 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined been settled by the Apex Court that no separate endorsement is required for license of LMV to drive any transport vehicle, and therefore submitted that the finding regarding the driving license is erroneous .
4.3 Advocate Mr. Soni submitted that the learned tribunal had committed serious error of law in not believing the citation produced on record and absolutely ignored the settled principles, and also erred in believing 100% disability of the claimant.
5. Advocate Mr. Rathin Raval for the National Insurance Co. Ltd. - respondent no.6 stated that the motorcycle was being carried in the rickshaw as goods, and the claimant was travelling as representative of the motorcycle, therefore no liability can be laid down on the Insurance Company of the motorcycle when the motorcycle was not actually in use on the road.
6. Ms. Kirti S.Pathak, learned advocate for Page 11 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined ICICI Lombard General Insurance Co. Ltd., respondent no.4, submitted that the legal maxim "NULLUS COMMUDUM CAPERE POTEST DE INJURIA SUA PROPRIA" means no one can be benefited for his/her own wrong. Ms. Pathak submitted that it is a case that the appellant claimant being a policeman has violated the law and therefore he should suffer the consequences. Ms. Pathak submitted that the appellant's foremost duty is to execute the law himself, who has breached the provisions of Motor Vehicles Act 1988, and perhaps the entire accident could have been averted if the appellant - original claimant himself would not have breached the law. 6.1 Advocate Ms. Pathak submitted that the accident was nothing but a self-invited accident by appellant-claimant; who could have called for a puncture repairer or hired another taxi if there was urgency to reach the destination. Ms. Pathak stated that the Police officer had kept Page 12 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined the Motorbike inside the auto rickshaw, and therefore, a question would arise as to what was the urgency to load a Motorcycle inside an auto- rickshaw rather than calling someone from Garage, and no such urgency is being explained in claim petition or pleaded to be proved by way of evidence.
6.2 Advocate Ms. Pathak submitted that the Police official on duty, whose bike got punctured and had carried his motorcycle insured with National Insurance Co. Ltd., in goods vehicle auto rickshaw delivery van, insured with ICICI Lombard GIC, wherein there was seating capacity of only one, meaning thereby no one ought to have travelled except the driver. Ms. Pathak submitted that the seating capacity was only one as per policy issued by Respondent - ICICI Lombard. 6.3 Advocate Ms. Pathak further submitted that the risk of appellant - original claimant was not covered under section 147 the M.V. Act, Page 13 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined and the policy issued by the Insurance Company does not cover such risks of unauthorized person; hence, ICICI Lombard GIC is not liable to pay any kind of compensation to the appellant - original claimant. Advocate Ms. Pathak submitted that compensation whatsoever awarded to the appellant claimant, is upon the owner, driver of auto rickshaw and insurance company of motorcycle, who should be made liable to pay the compensation. 6.4 Advocate Ms. Pathak further submitted that for coverage of Police Officer on duty, one has to go, analyse the coverage from the purview not only of Rule 122 but also under Section 147 of the Motor Vehicles Act, 1988. Ms. Pathak submitted that there would be conflicting interpretation between section 147 and Rule 122, and when there is a conflicting interpretation between rule and section, then in that case section would prevail over Rule. 6.5 Advocate Ms. Pathak stated that the Page 14 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined appellant is taking benefit of Rule 122 of Gujarat Motor Vehicles Rules, which gives a cushion to a police officer in uniform, travelling on duty, carried in a goods carriage but perhaps there is no specific exclusion clause in section 147 of the Motor Vehicles Act to give a cushion to police officer.
6.6 Advocate Ms. Pathak further submitted that section 147 specifies the requirements of the policy and limits of liability and stated that such insurance policy should insure the person or classes of persons specified therein against the liabilities enumerated thereunder. Advocate Ms. Pathak submitted that the first liability, which the insurance policy requires to cover, is provided under clause (1) the liability which may be incurred by the insured in respect of death or bodily injury to any person carried in the vehicle or damage to property of a third party caused or arising out of the use of the Page 15 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined vehicle in a public place. Ms. Pathak stated that at the time of accident there was no seating capacity of the vehicle as per policy, hence, no one including owner of goods can travel. 6.7 Advocate Ms. Pathak further submitted on the issue of invalid license, to state that, at the time of accident, the driver attach with auto rickshaw was not holding valid and effective license, which would amount to breach of policy terms and conditions, hence even otherwise insurance company ought to be exonerated, and therefore the learned Tribunal has rightly exonerated the insurance company, since there are two technical issues involved in this accident. 6.8 Advocate Ms. Pathak submitted that the argument of payment by insurance company and then having a right to recover the same from the insured is misconceived. Ms. Pathak stated that the direction of Pay and Recover is being misinterpreted. The Supreme Court has directed Page 16 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined Insurance Company for recovery in cases where the insurance company had deposited the awarded amount to comply with the direction of High Court or same court, and the said amount had been withdrawn during the pendency of Appeal and in such cases the Hon'ble Supreme Court had issued such direction by exercising their extra ordinary powers under Article 136 and 142 of the Constitution of India. Ms. Pathak stated that the High Court is not empowered to exercise such extra ordinary authority.
6.9 Advocate Ms. Pathak further contended that the proximate cause of accident was the motorcycle which hit with auto-rickshaw, in fact in the cross examination it was admitted. Ms. Pathak stated that overall quantum awarded by the learned Tribunal is appropriate considering the documentary evidences being led, and therefore submitted that there cannot be any enhancement in the appeal filed by the appellant-claimant and Page 17 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined that even the First Appeal filed by the owner is meritless, and therefore, Ms. Pathak submitted that the present respondent - insurance company is not liable to pay the compensation to the appellant claimant on account of breach of terms and conditions of policy, thus, prayed that no interference would be required in the order passed by the learned Tribunal exonerating the insurance company.
6.10 Advocate Ms. Pathak submitted that the learned Tribunal has rightly assessed income of Rs.5,300/- as per fix pay, and as per ratio laid down in Pranay Shetty (supra), income as on date of accident has to be considered. Ms. Pathak stated that there is no evidence with regards to pain, shock and sufferings, and even, as per cross-examination, it has not come on record, the degree of functional disability the claimant had suffered on account of accident, and therefore, considering the hospitalization period, the Page 18 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined learned Tribunal has rightly considered Rs.1,00,000/-.
6.11 Advocate Ms. Pathak further contended that evidence led by the appellant claimant shows that there may not be any kind of future medical expenses to be incurred, while on the contrary, there is admission on part of claimant that there is no proof regarding the fact that he was terminated from job.
6.12 In support of her submissions, Ms. Pathak relied on the following judgments:
(i) Vachala & Ors. Vs. V.R. Kumar & Anr., decided on 25.06.2004 in CMA No.2090 of 1998 by the Andhara Pradesh High Court;
(ii) United India Insurance Co. Ltd. Vs. Minor Mahesh Kanubhai & Ors. decided on
07.04.2014 in First Appeal No.713 of 2007 with First Appeal No.3852 of 2008 by this Court;
(iii) Oriental Insurance Vs. Suresh Page 19 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined Shankarbhai Valand, decided by this Court in First Appeal No.2917 of 2010 dated 10.03.2023;
(iv) New India Assurance Vs. Mayabhai Najabhai Bharwad, decided on 19.12.2013 in First Appeal No.810 of 2003;
(v) New India Insurance Company Vs. Amaraben decided in First Appeal No.3292 of 2005;
(vi) Oriental Insurance Company Vs. Chaturaben decided in First Appeal No.2741 of 2008;
(vii) United India Insurance Co. Ltd. Vs. Bhikhabhai decided on 18.11.2013 in First Appeal No.2121 of 2008.
7. Having heard learned advocates appearing for the respective parties, perused the material on record. The learned Tribunal has exonerated the insurance company of the loading rickshaw on the basis, considering claimant as gratuitous passenger and holding that the driver was not Page 20 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined having a valid and effective licence, and also observing that the loading capacity was only of one person.
8. In the judgment of Mukund Dewangan vs. Oriental Insurance Co. Ltd. reported in (2017) 14 SCC 663, the Hon'ble Supreme Court held that "light motor vehicle" would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). It was noted that a transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7,500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, "unladen weight" of which does not exceed 7,500 kg. Further held that 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 7,500 kg or a motor car or tractor or roadroller, the Page 21 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined "unladen weight" of which does not exceed 7,500 kg.
8.1 The Apex Court in the said judgment further noted that effect of amendment made by virtue of Act 54 of 1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) with expression "transport vehicle" as substituted in section 10(2)(e) relates only to the substituted classes i.e. "medium goods vehicle", "medium passenger motor vehicle", "heavy goods vehicle" and "heavy passenger motor vehicle", it does not exclude transport vehicle from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle. It was observed that the effect of amendment of Form-4 by insertion of "transport vehicle" related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same, and Page 22 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined there was no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. It was further held that even otherwise the Form could not control the substantive provisions carved out in section 10(2)(d) and 10(2)(e) and the interpretation of the Form has also to be in tune with the statement of objects and reasons and the provisions of the Act inserted by virtue of the amendment.
8.2 In accordance to the provision of law as noted in Mukund Dewangan (supra), no specific endorsement is required in a transport vehicle whose weight is not above 7,500 k.g. Here, in the present matter, the loading rickshaw was having unladen weight of 439 KG and insurance policy mentions gross vehicle weight as 490 KG. Thus, lack of endorsement on the licence of the driver, Page 23 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined on the involved vehicle i.e. loading rickshaw, would not help the insurance company to claim the plea of invalid licence or incompetency to drive.
9. The learned Tribunal has considered the claimant as a gratuitous passenger. Gratuitous passenger means the person, who has been given a free lift by the owner or driver of the vehicle. Free lift may be due to variety of the reasons e.g. friendship, directions from the above, relationship etc. In case of taking a passenger gratuitously, there is always an element of obligation the person so carried free of fare. 9.1 The word 'gratuitous' has not been used in the Act and hence, there is no definition of it in the Act. In the Webster's Third New International Dictionary "gratuitous" means 'given freely or without recompense, granted without pay or without claim or merit, costing the recipient or participant nothing, free; not involving a return benefit, compensation or Page 24 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined consideration - opposed to onerous; not called for by the circumstances; adopted or asserted without good ground.
10. Herein the injured, who was a policeman, whether he could be considered as a gratuitous passenger, who travelled in the loading rickshaw, on the date of accident. The fact suggests that the claimant stopped the rickshaw and asked the rickshaw driver, to load his motorcycle which got punctured on his way back from his official work. 10.1 Since the person who had asked for the lift and urged the driver of the rickshaw to carry his motorcycle being a policeman, could the driver of the rickshaw deny him, in view of Rule 122 of Gujarat Motor Vehicles Rules, 1989. 10.2 Rule 122 of the Gujarat Motor Vehicles Rules, 1989 is reproduced herein under:
"122. Carriage of persons in goods carriages.-
(1) Subject to the provisions of Page 25 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined this rule, no person shall be carried in a goods carriage:
Provided that the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle carried free of charge, or a police officer in uniform, traveling on duty, may be carried in a goods carriage:
Provided further that the total number of persons so carried shall not be more than -
(i) one, in case of a light motor vehicle having gross vehicle weight less than 900 kilograms;
(ii) three, in case of any other light motor vehicle;
(iii) five, in case of any medium goods vehicle;
(iv) seven, in case of any heavy goods vehicle.
Provided further that the provision of second proviso to this sub-rule shall not apply in case where integral seating arrangements providing a reasonably comfortable seating space for each person has been made in the goods carriage for Page 26 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined more than the number specified in the second proviso.
(2) Notwithstanding anything
contained in sub-rule (1) but
subject to the provisions of sub-
rule (4), a Regional Transport Authority - 80 - may, by an order in writing, permit that a large number of persons may be carried in the goods carriage on condition that no goods at all are carried in addition to such persons and such persons are carried free of charge in connection with the work for which the vehicle is used and that such other conditions as may be specified by the Regional Transport Authority are observed and where the vehicle is required to be covered by permit the conditions of the permission aforesaid are also made conditions of the permit.
(3) Notwithstanding anything contained in sub-rule (1) and (2) but subject to the provisions of sub-rule (4)-
(a) for the purpose of celebrations in connection with the Republic Day Page 27 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined or Independence Day, the Regional Transport Officer,
(b) for the purpose of enabling a co-operative society or a class of co-operative societies owning or hiring a goods carriage to carry its members under its authority in such goods carriage for the ordinary course of its business, the Commissioner of Transport or Director of Transport as the case may be,
(c) where if considers expedient in public interest in respect of vehicle owned or hired by it, and in respect of other vehicles on such inescapable grounds of urgent nature to be specified in the order, the State Government, may by general or special order, permit goods carriages to be used for the carriage of persons for the purposes aforesaid subject to such conditions as may be specified in the order.
(4) No person shall be carried in any goods carriage unless an area of not less than 0.37 square metre of the floor of the vehicle is kept Page 28 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined open for each person in such manner-
(i) that such person when carried on goods or otherwise is in danger of falling from the vehicle,
(ii) that any part of his body, when he is in a sitting position, is not at a height exceeding three metres from the surface upon which the vehicle rests.
(5) No person other than an attendant or attendants if any, as required under rule 203 shall be carried on a trailer which is a goods vehicle:
Provided that not more than
four persons on a single axled
trailer and six persons on a trailer having more than one axle may be carried in addition to such attendant or attendants, subject to the conditions that-
(i) the trailer has been fitted with fixed grab rails not less than 610 millimetres in height on the side plank of the load body on all sides except the rear side for the support of the persons so carried;
(ii) when the trailer is being used Page 29 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined in a public place, no part of the body of any person so carried in such a trailer is more than three metres above the ground level; and
(iii) the gross laden weight of the trailer does not exceed the gross vehicle weight assigned to it.
(6) No person shall travel in a goods carriage in contravention of the provisions of this rule."
10.3 Rule 122 of the Gujarat Motor Vehicles makes clear from the first proviso under sub-rule (1) for a police officer in uniform travelling on duty to be carried in a goods carriage. The specific provision is about carriage of persons in goods carriages, which would permit the policeman to travel with his goods. The second proviso to sub-rule (1) is about the total number of persons, so to be carried. If the gross weight of the vehicle is less than 900 kilograms than one person, but such restriction shall not apply, as per the third proviso, in case integral seating arrangements provided a reasonable Page 30 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined comfortable seating space for more than the number specified in the second proviso. 10.4 This mandated rule creates a right for the claimant as policeman and an obligation for the rickshaw driver, which for them cannot be excluded or claim to be disapplied. The Insurance Company at present in the present matter cannot take a plea under section 147 of the M.V. Act, for its exclusion, since Gujarat Motor Vehicles Rules statutorily applies to, and, is in relation to all motor vehicles in the state of Gujarat, unless it is expressly provided otherwise. 10.5 Section 147 of the M.V. Act contemplates about the requirements of policies and limits of liability. The rules, as provided under section 212 of the M.V. Act, are made after previous publication and are published in the official gazette. The Insurance Company cannot deny the application of rules on the ground that section 147 of the M.V. Act does not incorporates within Page 31 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined it any inclusion or exclusion clause. Motor Vehicle Act, 1988 was with an intention of governing all vehicles and creating rules and regulations that all vehicle owners would be required to adhere to, even contract cannot override the right conferred by the statute, and the rules absoluting the rights cannot be made waivable, by way of any default clause. 10.6 Section 147 of M.V. Act, under sub-rule (1) found amendment with effect from 14.11.1994 in terms whereof the words "including owner of the goods or his authorized representative carried in the vehicle" was added after the words "against any liability which may be incurred by him in respect of the death of or bodily injury to any person".
10.7 Here, the claimant was travelling in his individual capacity as a policeman in the goods carriage, as well in the capacity of the representative of the motorcycle, which is of the Page 32 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined ownership of respondent no.5 - Gujarat State. A vehicle breakdown service can either tow the motorcycle, or the vehicle may be taken in some carrier to its destination or to nearby garage.
11. From the evidence recorded at Exh.32 of the claimant, it transpires that on the day of the accident, he was on his job travelling along with another constable Mahendrasinh. They were going from D.S.P. office towards Vashai Police Station, near Devrasan village two wheeler got punctured. They were waiting there on the side of the road parking the motorcycle, when they saw Rickshaw No.GJ-2-Y-6368 coming from the side of Mahesana, they stopped the rickshaw by waving hand, and asked to take the motorcycle to Vashai Police Station, the claimant deposed that opponent no.1 loaded the punctured motorcycle in the rickshaw, he was sitting in rickshaw holding the motorcycle at the rear side, under the instruction of opponent no.1.
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NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined 11.1 The learned Tribunal has concluded that the accident occurred owing to the sole negligence of the rickshaw driver, opponent no.1. The claimant stated that after having travelled for about 1 k.m., at village Udalpur, the rickshaw turned turtle and had fallen at the four lane, at that time, as the motorcycle fell from the rickshaw on his waist and back, he suffered severe injuries.
11.2 It is the case of the claimant, as per his evidence, that had the motorcycle not fallen on him, he would not have sustained injuries. The rickshaw driver was driving rashly and negligently and lost control on the steering. It was the contention of learned advocate Mr. Thakkar, that when the serious injury was because of fall of the motorcycle on the claimant, then both the vehicles should be made liable for the payment of compensation.
12. In the case of Kalim Khan Vs. Fimidabee Page 34 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined (supra), relied upon by Advocate Mr. Thakkar, the Apex Court has dealt with the words 'use of motor vehicles' in section 165 of M.V. Act for the jurisdiction of the claims tribunal to order compensation, observing that fundamental requirement is that the accident should arise out of the use of motor vehicle. If there is no use of the motor vehicle question of vehicular accident will not arise.
12.1 The factual matrix of the matter before the Apex Court was that, a stone came flying and hit the head of deceased causing his death, and the case of claimant was that stone fell on deceased due to blasting operation carried out for digging of well in the field of respondent no.1 by tractor engaged by owner for digging well with blasting machine. The insurer has advanced plea that tractor was insured under 'Farmer Package Policy' for agriculture purpose by owner of vehicle, however, it was used for commercial Page 35 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined purpose by mounting a blasting machine thereon, and use was in breach of insurance policy, and therefore, insurer as would not be liable to pay compensation. The Tribunal adverted to plea of insured that vehicle was used for digging of well in the field for irrigation which was incidental to agricultural activity and not in breach of insurance policy.
12.2 The Apex Court noticed the two appeals preferred before the High Court challenging the award of the tribunal. The High Court noted that the power for trigger of the explosives came from the battery of the tractor which was parked nearby and as explosion took place, a large stone flew in air and fell on the head of the deceased who was standing in front of a shop that was 300 ft. away. The Court addressed the concept of 'use of motor vehicle' and in that context stated that the tractor, when is stationary with the additional implements/machines can be run using Page 36 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined the power generated by its engine for thrashing and cutting agriculture produce. It also dwell upon the concept when a storage battery of a vehicle is disconnected and taken for some other use, and also observed that sometimes it is used for other purposes without disconnecting the battery from the vehicle.
12.3 The High Court opined that the battery of the vehicle was still installed inside and the terminals were used for providing power to the use of explosive. However, it further went on to say that the battery was practically detached from the vehicle and was not a part of the vehicle and on that basis ruled that use of battery for causing explosion cannot be said to be use of vehicle, for the vehicle was not used for causing explosion. Eventually, it was thus held that it could not be said that the accident which took place had arisen out of the use of motor vehicle as defined in Section 165 of the Page 37 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined Act and, therefore, considered the claim petition under Section 166 as not maintainable. Expressing the aforesaid view, the High Court set aside the award passed by the tribunal. However, the Apex Court ascribing with the observation of the tribunal, keeping in view the evidence on record agreed with the expression of the tribunal that the battery was still installed on the vehicle and the power was drawn from the battery for explosive purposes.
12.4 In the case of Kalim Khan Vs. Fimidabee (supra), the Apex Court has also referred to the judgment of Shivaji Dayanu Patil and Another v. Smt. Vatschala Uttam More, reported in (1991) 3 SCC 530, where the Hon'ble Apex Court has dealt with conceptual meaning of the phrase "arising out of the use of motor vehicle" as contained in Section 92-A of the Motor Vehicles Act, 1939, which correspondence to the provision of section 165 of the M.V. Act.
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NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined 12.5 The Apex Court has observed that in Patil's case, there was a collision between a petrol tanker and a tractor on the national highway as a result which, the petrol tanker went off the road and fell on its left side; the petrol contained in it leaked out and collected nearby. The accident took place at about 3 a.m. and at about 7.15 a.m. an explosion took place in the said petrol tanker resulting in fire and the persons, who had assembled near the tanker sustained injuries. The Tribunal has dismissed the claim petition on the ground that the explosion could not be said to be an accident arising out of the use of petrol tanker and that the provision of section 92-A of 1939 Act would not be attracted, and on appeal, the High Court noted that though at the material time the tanker was not being driven on the highway and was lying turtle on its side, but it would be covered by the expression 'use' as contemplated in Section Page 39 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined 92-A of 1939 Act. In Letters Patent Appeal, the Division Bench opined that the expression 'use' of motor vehicles covers a very wide field, a field more extensive than which might be called traffic use of the motor vehicle and that the use of a vehicle is not confined to the periods when it was in motion or was moving and that a vehicle would still be in use even when it was stationary, and the Division Bench affirmed the judgment of the learned Single Judge of the High Court.
12.6 On consideration, the Hon'ble Supreme Court, after referring to the decisions cited by the respondent and the analysis made by the High Court, opined as under:
""26. In our opinion, the word "use"
has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or Page 40 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined mechanical defect or accident. In the circumstances, it cannot be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck."
12.7 In the said judgment, the Apex Court referred to the decisions of Heyman v. Darwins Ltd., [1942] AC 356, Union or India v. E.B. Aaby's Rederi, [1975] AC 797, and Samick Lines Co. Ltd v. Owners of the Antonis P.Lemos, [1985] 2 WLR 468, and thereafter adverted to the observation in the decision of the High Court of Australia in R.J. Green Case, by Lord Barwick, C.J., which is reproduced herein under:
"Bearing in mind the general
purpose of the Act I think the
expression 'arising out of' must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words 'caused by'. It may be that an association of the injury with the use of the Page 41 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined vehicle while it cannot be said that the use was causally related to the injury may yet be enough to satisfy the expression 'arise out of' as used in the Act and in the policy."
The observation of Windeyer, J.
that was reproduced by the Court is to the following effect:-
"The words 'injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. 'Caused by' connotes a 'direct' or 'proximate' relationship of cause and effect. 'Arising out of' extends this to a result that is less immediate; but it still carries a sense of consequence."
12.8 The Hon'ble Apex Court in para 16 and 17 has referred to the observation of two Judges Bench, which are reproduced herein under:
16. The two - Judge Bench, appreciating the wider connotation, proceeded to lay down:-
"36. This would show that as compared Page 42 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined to the expression "caused by", the expression "arising out of" has a wider connotation. The expression "caused by" was used in Sections 95(1)(b)(i) and (ii) and 96(2) (b)
(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression "arising out of" which indicates that for the purpose of awarding compensation under Section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment."
17. Thereafter, the Division Bench posed the question, whether the Page 43 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined accident involving explosion and fire in the petrol tanker was connected with the use of tanker as a motor vehicle. Concurring with the view of the High Court, it ruled:
"37. In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on the sloping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker.
In the light of the aforesaid
circumstances the learned Judges of
the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because Page 44 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined there was interval of about four to four and half hours between the said collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle viz. the petrol tanker No. MKL 7461."
[Emphasis supplied] The aforesaid analysis throws immense light to understand the concept of "related events" and "causal relation". They have been distinguished from an event which is not connected. Needless to say, the appreciation of causal relation is a question of fact in each case and is to be weighed and appreciated on the basis of the materials brought on record."
13. Here, as per the facts of the case, the motorcycle was in the loading rickshaw. It had Page 45 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined broken down because of the puncture in the Tyre. The claimant owing to the puncture in the tyre, was not in a position to put the motorcycle for further use. Since he had no intention to use the motorcycle, he had got it loaded in the rickshaw which is a goods carriage. Under section 165 of M.V. Act, 1988, the bodily injury to the person has to be proved as 'arising out of use of motor vehicles'. Now, after loading the motorcycle the vehicle which was put to use was the 'loading rickshaw'. The Tribunal has attributed the accident to the sole negligence of the rickshaw driver. The rickshaw turned turtle at the cross road because of rash and negligent driving of the rickshaw driver.
13.1 The admitted fact is that the claimant was travelling in the rickshaw as representative of the motorcycle. The negligence of the loading rickshaw driver has been noted on the facts of the matter. Since the rickshaw turned turtle, the Page 46 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined claimant fell down and thereafter the motorcycle fell on his back causing serious injury, which has resulted into his paraplegic condition. 13.2 In the referred judgment, the concept of 'relative events' and 'casual relation' has been focused. The distinction has been made from an event which is not connected, where it has been noted that the appreciation of the casual relation is a question of fact of each case and is to be weighed and appreciated on the basis of the material brought on record.
13.3 The direct cause of the injury is the motorcycle which had fallen on the back of the claimant, and that has been caused because of rash and negligent driving of the rickshaw driver.
13.4 In Union of India Vs. United India Insurance Co. Ltd. & Ors., reported in (1997) 8 SCC 683, referred in the judgment of Kalim Khan Vs. Fimidabee (supra), the two Judges Bench had Page 47 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined opined that the word 'use of motor vehicle', is to be construed in a wider manner, where it has been noted that the only limitation to the wider meaning is to see that the injury must be one in any way a consequence of a use of the vehicle as a motor vehicle. The emphasis was on the 'consequences of a use', which was equated to 'related event'.
13.5 The proximate cause is the fall of motorcycle which led to injuries but that connection is not immediate and direct, since the causative factor of the accident, should be connected with the use of the vehicle. 13.6 Here, the consequence of the accident was that the claimant fell down on the ground, as the vehicle had turned turtle which was because of the rash and negligent driving of rickshaw driver. The motorcycle which was in the rickshaw was as a goods, had fallen on the claimant. The resultant consequence of the use of rickshaw is Page 48 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined that the claimant received serious injury because of the fall of the goods i.e his motorcycle, which fell because of the rash and negligent driver of the rickshaw driver.
13.7 Section 165 of the M.V. Act gives the Claims Tribunal a jurisdiction to grant compensation in case of bodily injury to persons arising out of use of the motorcycle. Sub-section (1) of section 165 of the M.V. Act, has the expression 'bodily injury to, persons arising out of the use of motor vehicles'. The same expression is used in explanation to sub-section (1) for the claim for compensation under section 140 and section 163A of the M.V. Act.
14. Section 147 of the M.V. Act also deals with the requirement of policies and its limits of liability in case of bodily injury to any person, which includes owner of the goods or its authorized representative carried in the vehicle, caused by the vehicle or arising out of use of Page 49 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined the vehicle in public place. Section 147 of the M.V. Act incorporates within its sweep the liability to pay the injured who is authorized representative of goods carried in the vehicle. The injury may be carried by or arising out of the use of the vehicle in a public place. 14.1 In the result, the liability to pay the compensation is jointly and severally on the owner-driver and insurance company of the rickshaw. Here in this case, ICICI Lombard General Insurance Co. Ltd. is respondent no.4, the owner is respondent no.2 whose driver is respondent no.1, while respondent no.3 name was running in the RTO department. The insurance of vehicle rickshaw at the relevant time was with respondent no.4. Hence, respondent Nos.1, 3 and 4 would be jointly and severally liable.
15. Learned advocate Mr. Kaash Thakkar submitted that in Bhavik @ Bhavin Dwarkadas Vithlani v. Ganpatsinh Manubha Jadeja & Anr., Page 50 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined reported in 2021 (3) GLR 2125, the case of 100% disability and a vegetative state of claimant aged about 22 years was considered by the Division Bench of this Court, the judgment was confirmed in S.L.P. (c) No.7321 of 2021 by the Apex Court.
15.1 Learned advocate Mr. Thakkar submitted that the claimant herein is paraplegic and has lost all the hopes of life, he would always be in need of taking assistance from some other person/ persons. Mr. Thakkar stated that it would not be a case of any amputation of the leg, where the claimant could even have supported himself by artificial limbs or by any cycle run by motor or any other means for him to make movement on his own.
15.2 While countering the argument, Advocate Ms. Kirti Pathak submits that no evidence is coming on record to substantiate the fact that the claimant is in need of any assistance for his Page 51 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined day-to-day requirements.
16. The case of the claimant is of being a paraplegic. The learned Judge had recorded the evidence and had considered him 100% disabled. The learned Judge has also referred to the disability certificate, Exh.57, wherein the Doctor has assessed permanent disability of spine as 80% for the whole body. The learned Tribunal has considered the spinal injuries sustained by the claimant and has also considered the bedridden period of the claimant to conclude the disability as 100% for body as a whole. The fact on record, as observed by the Tribunal is the paraplegic condition of the claimant, who would require some assistance from some independent person to look after him for his daily needs, since paraplegia is a medical condition involving impairment in motor or sensory function of the lower extremities which is classification of paralysis, the universal term to describe the Page 52 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined loss of movement or sensation following damage to nerve in the body. Paraplegia affects both legs.
17. The Tribunal, under the different heads, has granted the compensation as under at 7% interest rate per annum:
Heads Amount (in Rs.)
Future loss of income 10,81,200/-
Pain, shock and suffering 1,00,000/-
Special Diet, Attendant and 40,000/-
Transportation charges
Actual Loss 15,600/-
Medical Expenses 3,68,399/-
Total compensation 16,05,199/-
18. Considering the judgment of Bhavik @
Bhavin Dwarkadas Vithlani (supra) and as has been dealt in Kajal Vs. Jagdish Chand, reported in 2022 ACJ 1006, necessary amount for attendance charges are required to be paid.
18.1 In Kajal Vs. Jagdish Chand (supra), the minimum wages schedule has been approved for assessing the attendance charges. Accordingly, during the time of accident dated 15.10.2013, the Page 53 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined minimum wages for skilled worker was Rs.5,750/-. Per an attendant, thus, annually, the amount would come to Rs.69,000/-, applying multiplier of 17, taking the age of claimant as 28 years at the time of accident the attendant charges would come to Rs.11,73,000/-.
18.2 Towards medical expense, the amount of Rs.3,68,399/- has been considered by the Tribunal. The claimant has not adduced any evidence for the Tribunal to consider regarding his future medical expense, but keeping in mind the paraplegic condition of the claimant, Rs.75,000/- is granted towards future medical expense, and special diet and transportation expense.
18.3 At the time of accident, the claimant was engaged to be married. As per evidence, the date of marriage was to be decided by the elders, the evidence shows that the marriage was called off. In view of the evidence on record and in Page 54 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined line of the judgment of Bhavik @ Bhavin Dwarkadas Vithlani (supra), under the head of loss of marriage prospect and loss of amenities and enjoyment of life, Rs.2,00,000/- is granted. 18.4 Considering the age of the claimant and since the claimant is now not in a position to even continue with his service and to deal with his life in a normal position, the amount under the head of pain, shock and suffering granted by the Tribunal is on a lower side. Life of claimant is not in total loss as in the case of Bhavik @ Bhavin Dwarkadas Vithlani (supra) being in vegetative state, here the claimant can still be conscious of the surrounding, can even express his feeling and remain emotionally attached with the family, and if want to move can take the assistance of attendant, thus, considering the comparative situation with Bhavik @ Bhavin Dwarkadas Vithlani (supra), the amount granted by the Tribunal requires enhancement, hence, is Page 55 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined enhanced from Rs.1,00,000/- to Rs.5,00,000/-.
19. In the case of S.Vasanthi Vs. Adhiparasakthi Engg. College, reported in 2022 AIR (SC) 0-5057, the Hon'ble Supreme Court has appreciated the contention that if the person had not met with the accident, he would have surely drawn a salary equivalent to that of his classmates or at least an amount near to the said amount.
20. Accepting the principle of standardization and appreciating the concept of prospective future rise in income with the benefit of increments and pay revision, the Hon'ble Apex Court in the case of National Insurance Company Ltd. v. Pranay Sethi and Ors., reported in (2017) 16 SCC 680, has held as under:
"When we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To Page 56 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be in apposite.
It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other.
One may perceive that the comparative measure is certainty on the one hand and uncertainty on the Page 57 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance.
The purchasing capacity of a
salaried person on permanent job
when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/ fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the Page 58 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self- employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And,therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a Page 59 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.Page 60 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024
NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
In case the deceased was self- employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
21. Here, in this case, the witness, Patel Page 61 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined Rajnikant Jethalal, senior clerk, Account Department of Police Superintendent office, Mahesana had been examined. As per the summon, the witness appeared before the Court along with service book of the claimant and had produced relevant pages of the service book at Exh.47. The appointment letter at Exh.48 and Exh.49 shows that as per order dated 17.05.2018, the claimant as an armed police constable was in pay-grade of Rs.18,000 - 56,900, and the witness stated that the retirement age of the claimant is 31.08.2042, and the last basic pay would be Rs.37,500/- and after addition of Dearness Allowance and other allowances, it would come to Rs.73,135/-. 21.1 The salary slab was produced by the witness. The witness stated that because of physical condition of the claimant, he could not attain the service and was on leave without any pay, and though he was in service, but because of the accident, he cannot work. The witness also Page 62 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined denied the suggestion that the claimant has been paid with the salary. As per record and the evidence of the witness till 18.03.2018, the claimant has been paid the salary. He has also affirmed that there is no final decision with regard to his job after receiving the medical certificate, and has also affirmed that he has not been discharged from the service.
22. Advocate Mr. Kaash Thakkar stated that since the applicant is an armed police constable, he without a fitness certificate cannot join service and being paraplegic he is not in a position to produce fitness certificate, and further stated that being an armed policeman, he cannot be placed for some other table work or for any minimal works, and, thus he is in total loss of income.
22.1 Advocate Ms. Pathak submitted that the actual salary on the date of accident is required to be considered, as the learned Tribunal has Page 63 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined rightly considered Rs.5,300/- and has granted Rs.10,81,200/-.
23. The witness stated that till 18.03.2018, he has been paid salary. There is no evidence of actual loss to the claimant, hence, the computation of actual loss of Rs.15,600/- made by the Tribunal is without any supporting evidence, thus, that amount cannot be granted. The salary chart shows that his basic salary was Rs.19,950/-. Advocate Mr. Thakkar stated that the claimant being an armed policeman would have to be paid for his service during the public holidays, and as per the salary chart, he was on leave without pay owing to the illness has been proved.
23.1 The claimant received his last salary on 18.03.2018, till that period there was no loss of income. His basic salary was recorded as Rs.19,950/- and in the year 2018, the claimant would be at the age of 32 years, hence, the Page 64 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined multiplier applicable would be 16. Thus, the loss of income would come to Rs.19,950 x 16 x 12 = Rs.38,30,400/-.
24. In view of the above, compensation under different heads would be:
Heads Amount (in Rs.)
Future loss of income 38,30,400/-
Pain, shock and suffering 5,00,000/-
Attendant charges 11,73,000/-
Medical Expenses 3,68,399/-
Future Medical Expense and 75,000/-
special diet and
transportation charges
Loss of Marriage Prospectus 2,00,000/-
and loss of amenities and
enjoyment of life
Total compensation 61,46,799/-
25. The amount granted by the Tribunal is Rs.16,05,199/-. The enhanced amount is Rs.45,41,600/- (61,46,799 - 16,05,199). It is reported that no amount has been deposited as per the impugned award. Thus, let the total amount of Rs.61,46,799/- be deposited by the driver and owner Page 65 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024 NEUTRAL CITATION C/FA/1733/2023 JUDGMENT DATED: 17/09/2024 undefined respondent Nos.1 and 3 and insurance company respondent No.4 jointly and severally at the rate of 7% per annum from the date of claim petition before the concerned Tribunal within eight weeks from the date of receipt of writ of this judgment.
26. In view of the above observations, the First Appeal No.1733 of 2023 is allowed in part and First Appeal No.2094 of 2023 and the stay application stand disposed of.
26.1 The impugned judgment and award dated 31.01.2023 passed by Motor Accident Claims Tribunal (Aux.), Mahesana in M.A.C.P. No.125 of 2014 stands modified to the aforesaid extent. No order as to costs.
26.2 Record & Proceedings, be sent back to the concerned tribunal.
(GITA GOPI,J) Pankaj Page 66 of 66 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Tue Oct 01 2024 Downloaded on : Sat Oct 05 22:07:43 IST 2024