Partly allowed

Bajaj Allianz General Insurance Co. Ltd. v. Gujarat State Road Transport Corporation

Gujarat HC22 Oct 2021FA/3849/2017

Case brief

AI extract

What is this about?

The High Court allowed the limitation appeal condoning delay but barred interest on enhanced compensation. In the motor accident appeals, it held the motorcycle insurer not liable due to the driver's lack of license, increasing compensation from Rs.13.23 lakhs to Rs.18.16 lakhs against the transport corporation and vehicle owner, and deprecated delayed record transmission.

What did the court decide?

Liability shifted to Transport Corporation and vehicle owner; compensation enhanced to Rs.18,15,700/-; limitation condoned without interest on enhancement. Registry directed to ensure timely record de

Bajaj Allianz General Insurance Co. Ltd. Vs Gujarat State Road… — Insurance | Gujarat HC (2021)

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CIVIL APPLICATION NO. 801 of 2021

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R/FIRST APPEAL NO. 3173 of 2021

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With

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R/FIRST APPEAL NO. 3173 of 2021

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With

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R/FIRST APPEAL NO. 3849 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

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and

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HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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MAHMAD RAFIK MUNNEBHAI ANSARI

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Versus

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GUJARAT STATE ROAD TRANSPORT CORPORATION

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========================================================== Appearance:

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MR. HEMAL SHAH(6960) for the Applicant(s) No. 1 MR HS MUNSHAW(495) for the Respondent(s) No. 1 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3

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==========================================================

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Page 1 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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Date : 22/10/2021

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ORAL JUDGMENT

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(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

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Oral order in CIVIL APPLICATION (for condonation of delay) No. 801 of 2021

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1. This application under section 5 of the Limitation Act is filed seeking condonation of delay of 690 days in filing the appeal. The cause shown for the delay is traceable to paragraph 6 of the application.

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2. We have heard learned advocates appearing for the parties.

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3. In this application, it is stated that against the judgment and award dated 15.07.2017, a Review Application was filed which came to be rejected on 17.07.2019, and immediately on dismissal of the said review application, within one month, the appeal has been filed. Merely because the applicant was pursuing his remedy under the review jurisdiction, by itself would not be a good ground to accept the cause for delay, however, on account of the applicant prosecuting the cause before the jurisdictional tribunal, the cause shown for the delay deserves to be accepted subject to applicant being put on terms. Hence, we hold that applicant – appellant would not be entitled for the interest for the delay period, in the event of applicant – appellant succeeding in the

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Page 2 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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appeal since first respondent which is a Government Corporation and third respondent which is an Insurance Company, cannot be fastened with liability to pay interest for no fault of theirs. Hence, to balance the equities, it would suffice to allow the application by holding that applicant – appellant would not be entitled to interest for the delay period.

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4. Accordingly, Civil Application No. 801 of 2021 is ALLOWED. Delay in filing the first appeal is condoned subject to the condition that in the event of appellant succeeding in the First Appeal No. 3173 of 2021, he would not be entitled to the interest on the enhanced compensation for the delay period.

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Oral order in FIRST APPEAL NO. 3173 of 2021 and FIRST APPEAL NO. 3849 of 2017

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1. The appellant who is the claimant before the Tribunal, has presented First Appeal No. 3173 of 2021 and the insurer of motorcycle bearing Registration No. GJ-3-RR-4554 has filed First Appeal No. 3849 of 2017 challenging the correctness and legality of the judgment and award passed by the Motor Accident Claims Tribunal (Special) at Rajkot in MACP No. 544 of 2009 dated 15.07.2017, whereunder the claim petition filed by the claimant under section 166 of the M.V. Act, 1988 has been allowed in part and compensation of Rs. 13,23,700/- with interest 9% per annum from the date of claim petition till realisation has been allowed and respondents Nos. 1 to 3 before the Tribunal have been directed to indemnify the award jointly and severally.

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Page 3 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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2. The facts in brief which has led the appellants to present these Appeals are as under.

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3. A claim petition came to be filed by the claimant initially seeking for compensation of Rs.4 lacs and later sought for compensation of Rs.44 lacs contending inter alia that on 22.02.2009 at about 5:00 p.m., while he was travelling as a pillion rider on a motorcycle bearing registration No.GJ-3-RR4554, they had reached the bungalow of Municipal Commissioner at Sadar Bazar at Rajkot, and at that time, driver of the State Transport Corporation bus bearing registration No. GJ-18-V-2491 came in excessive speed, driving the said vehicle in a rash and negligent manner, endangering human life and dashed against the motorcycle, and as a result of which the claimant sustained injuries. The respondents being notified of the claim petition, insurer of both the vehicles appeared and filed their statement of objections denying the averments made in the claim petition except to the extent expressly admitted thereunder. On the basis of the pleadings of the parties, issues came to be framed by the Tribunal as under : -

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“1. Whether it is proved that the claimant sustained injuries on account of rashness or negligence in driving on the part of the drivers of the vehicle involved in the accident ?

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2. What amount, if any, the claimants are entitled to by way of compensation and from which of the opponents ?

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3. What order ?”

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4. In order to substantiate his claim, claimant got himself examined and also examined a witness by namely Dr. Nimish P. Trivedi and in all produced 62 documents as per Exh.

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Page 4 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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1 to 60. The insurer of the motorcycle filed his affidavit in lieu of examination in-chief and got marked three documents Exh. 66, 67 and 73. After considering the arguments advanced by the learned advocates appearing for the parties, Tribunal as noticed hereinabove awarded a total compensation of Rs.13,23,700/- and the break up of it is as under : -

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Rs. 9,18,000/Future loss of income Rs. 75,000/Pain, shock and suffering Rs. 75,000/Special diet, attendance and transportation Rs. 1,55,700/Medical Expenses Rs. 1,00,000/Loss of marriage prospectus, loss of amenities and loss of enjoyment of life. _____________ Rs.13,23,700/- Total compensation

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Hence, these two appeals.

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5. We heard heard Mr. Vibhuti Nanavati, learned advocate appearing for the insurer of the motorcycle, Mr. Devang Bhatt, learned advocate appearing for Mr.H.S. Munshaw for the Gujarat Transport Corporation and Mr. Hemal Shah, learned advocate for the claimant.

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6. The sum and substance of the contentions raised by the learned advocates for the insurer and the Transport Corporation is that Tribunal committed an error in arriving at a conclusion that though driver of the motorcycle did not possess the driving license it has been held that burden was cast on the insurer and the Transport Corporation to prove that the driver was disqualified from holding a driving license and as such fastening the liability on them was erroneous. It is also contended that finding recorded by Tribunal with regard to

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Page 5 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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composite negligence is contrary to the evidence available on record and it is submitted that driver of the motorcycle himself was injured, had also filed a claim petition in which the insurer of the motorcycle was deleted and now Tribunal by the impugned judgment and award has also held that insurer of the motorcycle would also be liable to indemnify the award jointly and severally along with the Transport Corporation and to that extent, the learned advocate Mr.Nanavaty appearing for the appellant – insurer would contend that award passed by the Tribunal is liable to be set aside.

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7. Mr. Devang Bhatt, learned advocate appearing for the Transport Corporation though has not filed appeal, has contended that no liability can be fastened on the Corporation, inasmuch as, accident had occurred on account of the negligence of the driver of the motorcycle and 100% liability is to be fastened on the driver of the motorcycle and accordingly, the award requires to be modified. He would also submit that compensation awarded by the Tribunal itself is exorbitant and excessive.

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8. Per contra, learned advocate Mr. Hemal Shah appearing for the claimant would not only support the judgment and award passed by the Tribunal, insofar as fastening the liability on the insurer of the motorcycle as well as transport corporation whereunder the composite negligence has been held as proved and to the extent of quantum awarded by the tribunal, he would submit that tribunal committed a serious error in not considering the actual income or the reasonable income that the claimant was drawing / earning as on the date of accident i.e. on 22.02.2009 and a

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Page 6 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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sum of Rs. 4,500/- is taken which is abysmally on lower side. He would also submit that the quantum of compensation awarded under all heads requires to be enhanced. Hence, he prays for allowing the appeal filed by the claimant.

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9. Having heard the learned advocates appearing for the parties and on perusal of papers placed before the Court, we are of the considered view that following points would arise for consideration : -

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(1) whether Tribunal was correct in arriving at a conclusion that burden cast on the insurer to prove that driver of the motorcycle was possessing valid driving license had not been discharged;

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(2) whether compensation awarded by the Tribunal is just and reasonable or it requires to be modified ? and if so, to what extent ;

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10. Before answering the points formulated hereinabove, it requires to be noted that there is no dispute with regard to the fact of accident in question having occurred on 22.02.2009 as a result of which claimant sustained injuries. It is also not in dispute that on account of the two vehicles involved namely the motorcycle and the bus, the accident having occurred. Hence, we do not propose to repeat those facts which have already been discussed by the Tribunal.

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11. Tribunal while answering the issue regarding liability, has held that insurer of the motorcycle had failed to prove that

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Page 7 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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driver of the motorcycle was not holding valid and effective driving license at the time of the accident. It has also been further held that in the light of the driving license produced at Exh. 43 and 67 which was for the period from 26.06.2009 to 25.06.2009 that driver of the motorcycle was not disqualified for obtaining such driving license. The defence which is available to the insurer to stave off the liability to be fastened on it by virtue of the insurance policy taken on the motorcycle is traceable to section 149(2)(a)(ii) of Motor Vehicle Act, 1988, which mandates that driver of the offending vehicle is required to have effective and valid driving license as on the date of the accident. The Hon’ble Apex Court in the case of National Insurance Co. Ltd. versus Swaran Singh and Others reported in 2004(1) GLH 691 , has held to the following effect : -

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“WHEN ADMITTEDLY NO LICENCE WAS OBTAINED BY A DRIVER :

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82. We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not

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Page 8 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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have any hand at all, e.g. a case where an accident takes place owing to a mechanical fault or vis-major.

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83. In V. Mepherson v. Shiv Charan Singh [1998 ACJ 601 (Del.)] the owner of the vehicle was held not to be guilty of violating the condition of policy by willfully permitting his son to drive the car who had no driving licence at the time of accident. In that case, it was held that the owner and insurer both were jointly and severally liable.

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84. In New India Assurance Co. Ltd. vs. Jagtar Singh and Others, [1998 ACJ 1074], Hon'ble M. Srinivasan, CJ, as His Lordship then was, dealing with the case where a duly licensed driver was driving a vehicle but there was a dispute as to who was driving the vehicle. In that case the court referred to the judgment in Kashiram Yadav vs. Oriental Fire & General Insurance Co. Ltd. [1989 ACJ 1078 (SC)] and expressed its agreement with the views taken therein.

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85. In National Insurance Co. Ltd. vs. Ishroo Devi and Others, [1999 ACJ 615] where there was no evidence that the society which employed the driver was having knowledge that the driver was not holding a valid licence, it was held the insurance company is liable. The court relied upon the decisions of this Court in Kashiram Yadav's case (supra), Skandia's case (supra) and Sohan Lal Passi's case (supra).”

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12. Thus, insurer would be entitled to raise a defense that driver of the offending vehicle was not possessing a valid driving license at the time of the accident and as such it is not entitled to indemnify the claim. If it is to be construed that burden was on the insurance company to prove that owner of the vehicle had consciously allowed the driver of the vehicle whom he knew, did not possess driving license, then in such circumstances also insurer would not be required to indemnify the award. In the instant case, said situation would not arise, inasmuch as, the owner of the vehicle who was arraigned as

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Page 9 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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respondent No. 2, did not appear before the Tribunal and did not contest the matter. As such, burden had shifted on the insurance company. Only on initial burden cast on the insured namely the owner of the vehicle was discharged, it would have shifted to the claimant to dispense the same. The said exercise having not been done and undisputedly Exh. 43 and 67, the driving license which was produced by the claimant disclosing that driver of the motorcycle was possessing the driving licence which was effective from 26.06.2009 onwards, and he did not possess the driving license as on the date of accident i.e. 22.02.2009, it cannot be gainsaid by the claimant that insurer was required to indemnify the claim. It is not the case of the claimant that either the driver of the motorcycle was possessing a learner license or the said driving license which had been issued, had expired. In that view of the matter, the contention raised by the learned counsel appearing for the claimant, cannot be accepted and it stands rejected. In the facts obtained in the present case clearly disclosing that driver of the offending vehicle namely driver of the motorcycle was not possessing the driving license as on the date of accident, insurer of the motorcycle cannot be made to indemnify the claim. However, we make it clear that the claimant would be at liberty to proceed against owner of the said vehicle for recovering the compensation. Hence, point no. 1 is answered in favour of the insurer and held that insurer of motorcycle had proved that driver of the motorcycle did not possess valid driving licence as on date of accident.

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13. It requires to be noted that Tribunal has awarded the compensation of Rs. 13,23,700/- under various heads as already noticed hereinabove. However, the claimant who is

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Page 10 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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assailing the said award as being on the lower side, on being examined, we are of the considered view that it merits acceptance partially. The Tribunal while assessing loss of future income, has completely ignored the documentary evidence which was available on record namely Exh. P-56 which is the certificate issued by Agra University certifying that claimant is a holder of Master Degree in Arts. It is the specific case of the claimant as deposed before the Tribunal that he is a Glass Designer and Tribunal committed a serious error in construing his income at Rs.4,500/- per month as against claim of Rs.10,000/- per month and the income construed by the tribunal is on the lower side and which is also abysmally on the lessor side. Hence, he prayed for enhancement of compensation.

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14. The accident in question having occurred in the year 2009 and claimant having engaged himself in occupation of Glass Designer, it cannot be construed that his income was around Rs.4,500/- per month by treating him on par with a Coolie or a Hamali. As such, we are of the considered view that the income for the purposes of computation of compensation under the head of future loss of income deserves to be construed as Rs.9,000/- per month.

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15. The compensation that has been awarded towards pain and suffering is partially on the lower side. The claimant having been admitted to a hospital and being an impatient for a month and having suffered crush injury on head and subarodinoid hemorrhage with cerebral oedma, the pain and suffering which the claimant had undergone, is much more and as such reasonable compensation deserves to be awarded

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Page 11 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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under this heading. In fact Tribunal has noticed that Dr. Trivedi was examined on behalf of claimant as per affidavit Exh. 34 and said doctor had treated the claimant as an indoor patient from 23.02.2009 to 20.03.2009. He has clearly deposed about the nature of injuries sustained by the claimant and finding recorded by the Tribunal in this regard is to the following effect : -

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“18. ……… He has stated that claimant received crush injury on head and subarodinoid hemorrhage. Rt.parietal region with cerebral oedma on detailed evaluation of injury, contusions in right middle cerebral peduncle, pons, midbrain, selenium of corpus callosum towards right side and other injuries…………….”

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16. Thus, the compensation towards pain and suffering requires to be marginally enhanced by awarding additional sum of Rs. 25,000/-. Tribunal has awarded Rs.75,000/- towards special diet, attendance and transportation and Rs. 1,55,700/towards medical expenses, which is in consonance with the nature of injuries sustained and number of days of hospitalization and same would not call for interference. However, for loss of marriage prospectus and loss of amenities, which has been combined and a compensation of Rs. 1,00,000/- is awarded, is also on the lower side. Tribunal having noticed that claimant is a young man aged about 27 years and now on account of 100% disability, he would not be able to function normally and there is 100% reduction in his income, just a reasonable compensation under these two heads is to be awarded by awarding additional Rs.50,000/each and accordingly we do so. Thus, the claimant would be

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Page 12 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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entitled for total compensation under the following heads in substitution to what has been awarded by the Tribunal : -

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12,85,000/-

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(ii) pain shock and suffering 1,00,000/(iii) special diet, attendance and transportation 75,000/(iv) medical expenses 1,55,700/(v) loss of amenities 1,00,000/(vi) loss of marriage prospectus 1,00,000/-

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Total

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___________ 18,15,700/-

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Accordingly, point no. 2 is answered partly in favour of the appellant in the First Appeal No. 3173 of 2021.

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17. For the reasons aforestated, we proceed to pass following

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ORDER

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(i) The First Appeal No. 3849 of 2017 is allowed and First Appeal No. 3173 of 2021 is allowed in-part.

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(ii) Judgment and award passed by the Tribunal in MACP No. 544 of 2009 dated 15.07.2017, insofar as fastening the composite liability on the insurer of the motorcycle is set aside. It is made clear that that claimant would be entitled to recover the

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Page 13 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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compensation jointly and severally from respondent No. 1 (Gujarat State Road Transport Corporation) and respondent No. 2 (Vipul Meghjibhai Ghelani – owner of the motorcycle) which liability is joint and several and in substitution to the compensation awarded by the Tribunal, a sum of Rs.18,15,700/- is awarded with interest @ 9% per annum from the date of petition till date of deposit or payment whichever is earlier excluding interest for 690 days on the enhanced compensation. The appellant in First Appeal No. 3849 of 2017 would be at liberty to withdraw the amount with accrued interest which is said to have been deposited before the Tribunal by filing appropriate application.

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18. It is noticed by this Court that the First Appeal No. 3849 of 2017, having been admitted on 28.11.2017, resulted in the Registry calling for records from the jurisdictional tribunal on 08.12.2017, yet till date records have not come. However, learned advocates for the parties have made available the pleadings and exhibits for our perusal, and as such, the appeal was taken up for final disposal. However, very intriguing factor which is noticed is that even after four years, when the Registry of this Court has called for record and proceedings from the trial court I.e. jurisdictional tribunal, for reasons best known it has not been transmitted to this Court or it has not reached this Court till date. This practice requires to be deprecated and accordingly we deprecate and direct the Registrar General to issue a circular that within 30 days from the date of the communication received by the trial court or the jurisdictional MACT as the case may be, records should be

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Page 14 of 15

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C/CA/801/2021 JUDGMENT DATED: 22/10/2021

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despatched by such Courts and the Registrars of the respective District Courts should ensure such despatch is made on time and any failure on the part of the official/s of the Registry will be viewed seriously.

(ARAVIND KUMAR,CJ)

(MAUNA M. BHATT,J)

AMAR SINGH

Page 15 of 15

Bajaj Allianz General Insurance Co. Ltd. v. Gujarat State Road Transport Corporation

Case brief

What is this about?

What did the court decide?

Bajaj Allianz General Insurance Co. Ltd. v. Gujarat State Road Transport Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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