[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 169 of 2003 With FIRST APPEAL NO. 170 of 2003 With FIRST APPEAL NO. 343 of 2003 With FIRST APPEAL NO. 344 of 2003 With FIRST APPEAL NO. 677 of 2003 With FIRST APPEAL NO. 678 of 2003 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? [ENTITY] Appellant(s) Versus [ENTITY] & 4 Defendant(s) Appearance: MR [ENTITY], ADVOCATE for the Appellant(s) No. 1 DELETED for the Defendant(s) No. 3 Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Oct 31 02:02:10 IST 2015 [CASE NUMBER] MR [ENTITY], ADVOCATE for the Defendant(s) No. 1 - 2 MS [ENTITY], ADVOCATE for the Defendant(s) No. 4 NOTICE SERVED for the Defendant(s) No. 4 - 5 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 29/10/2015 ORAL JUDGMENT
1. These appeals arise out of a common judgement and award dated 28.02.2002 passed by the Motor Accident Claims Tribunal, Navsari in [CASE NUMBER]. On 15.11.1993, one [ENTITY] and his wife [ENTITY] were travelling in a Maruti car which was driven by their friend [ENTITY]. The Maruti Car collided with oncoming ST bus causing serious injuries to the driver and fatal injuries to the couple. The claimants, who were the daughter and mother of the deceased [ENTITY], filed the said claim petitions seeking compensation of Rs. 6 lacs and Rs. 2 lacs for the death of the husband and wife respectively.
2. The Claims Tribunal came to the conclusion that the accident occurred due to equal negligence on part of both the drivers. Regarding computation of compensation with respect to deceased [ENTITY], the Tribunal believed his income from his employment at Navsari Cotton and Silk Mills at Rs. 2600/- per month. Looking to his age of 35 years, the Tribunal granted 50% increase for future but deducted 2/3rd for his personal HC-NIC Page 2 of 8 Created On Sat Oct 31 02:02:10 IST 2015 [CASE NUMBER] expenditure observing that the claimants were only the daughter and mother of the deceased. The dependency benefit of Rs. 1300/- per month was thus taken. After applying multiplier of 15, the Tribunal worked out loss of dependency benefits at Rs. 2,34,000/-. The Tribunal added Rs. 20,000/- towards the conventional figures of loss of expectation of life and Rs. 2000/- towards funeral expenses.
3. Regarding death of [ENTITY], the Tribunal believed the income to be Rs. 600/- per month from the household and knitting work and took double thereof i.e. Rs. 1200/- as a prospective income. The Tribunal then adopted 50% for her personal expenditure and applied a multiplier of 15. The Tribunal further granted Rs. 22000/- towards conventional figures and awarded a total of compensation of Rs. 1,30,000/-.
4. This judgement and awarded has given rise to these appeals.
Two appeals have been filed by the claimants seeking enhancement. Two appeals have filed by the insurance company of the Maruti Car, in which, it is contended that the driver of the car was holding a learner license and that, therefore, the insurance company was not liable to cover the risk. Two appeals have filed by the ST Corporation, in which, it is contended that there were no negligence of the driver of the ST bus and the Tribunal erroneously apportioned the negligence equally between the two drivers.
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5. We may first advert to the question of negligence. Both the drivers were examined before the Claims Tribunal and gave contradictory versions. The driver of the Maruti car [ENTITY], in his deposition Exh 63, stated that he was driving the Maruti car on the left side of the road at a moderate speed when the ST bus came from the wrong side and dashed against his car. On the other hand, [ENTITY], the ST bus driver at Exh 71, stated that he was driving his bus on the right side when the Maruti car came from the opposite direction at full speed. It was coming in a zigzag manner upon which, he took his bus to the extreme left of the road despite which, the Maruti car came and collided. However,in the cross examination he stated that he had given the FIR before the police which was produced at Exh
36. In such FIR, he had given the correct facts and that the charge sheet was filed against him.
6. In addition to such evidence, I have also looked into the panchnama of the scene of the incident Exh. 37. The panchnama records that the road had a width of 18 ft. The Maruti car was severely damaged. Most importantly, it records that the Maruti car had travelled on the wrong side of the road before colliding with the ST bus. In the FIR Exh 36 lodged by the ST bus driver, he had stated that though he was on the correct side, the accident occurred. Of course his vehicle was at a high speed. He did say he left the bus in the same condition as at the time of the accident.
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7. From such evidence on record, it is clear that the Maruti car had travelled on the wrong side of the road and collided with the ST bus. However, the bus also must have been being driven at a considerably high speed. This can be asserted from the evidence of the driver himself who, as noted above, agreed in his cross- examination that he had given the FIR and confirmed the contents thereof. In the FIR, he had stated that, the accident took place because his bus was at high speed. Even otherwise, the damage to the Maruti car and the ST bus recorded in the panchnama would show that both the vehicles would be at considerable speed at the time of impact. We may recall that the road was relatively narrow road of 18 ft. It was, therefore, necessary that the drivers, particularly, of heavier vehicles, drive their vehicles with care and at reasonable speed. Under the circumstances, the Maruti car driver must be attributed greater responsibility in causing the accident. The driver of the ST cannot be completely absolved. I would, therefore, apportion the liability of negligence in the ratio of 75:25 between the ST bus driver and the Maruti Car driver.
8. Coming to the question of liability of the insurance company, in the cross-examination of witness, [ENTITY], he was asked whether he had license which he had used, he said he had the learner's license. Thus, the fact, that the Maruti car driver had a learner's license, is not in dispute. In that view of the matter, the judgement of the Supreme Court in case of [PRECEDENT] Page 5 of 8 Created On Sat Oct 31 02:02:10 IST 2015 [CASE NUMBER] would apply. In such judgement, it was held that:
" LEARNER'S LICENCE :
93. [ACT] provides for grant of learner's licence. [See [SECTION]]. A learner's licence is, thus, also a licence within the meaning of the provisions of the said Act. It cannot, therefore, be said that a vehicle when being driven by a learner subject to the conditions mentioned in the licence, he would not be a person who is not duly licensed resulting in conferring a right on the insurer to avoid the claim of the third party. It cannot be said that a person holding a learner's licence is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of [SECTION] of the said Act.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree."
9. Learned counsel Mr. [ENTITY] for the insurance company, however, submitted that even with the learner's license other conditions have to be satisfied such as, driving the vehicle accompanied by another person holding a valid licenses and affixing learner's sign in front and back part of the vehicle. Quite apart from the question, whether any breach of such conditions would enable insurance company to avoid the liability even these facts were not established. Admittedly, no material was pressed in the service confronted with the breach HC-NIC Page 6 of 8 Created On Sat Oct 31 02:02:10 IST 2015 [CASE NUMBER] of any of these conditions. The insurance company cannot avoid its liability.
10. Coming to the quantum of compensation, having accepted income of the deceased [ENTITY] at Rs. 2600/- and having granted 50% increase for future, the Tribunal committed an error in deducting 2/3rd thereof for his personal expenditure. Only 1/3rd would be permissible. The multiplier, as suggested by the Supreme Court in case of [PRECEDENT], looking to the age of the deceased would be
16. The computation of compensation towards loss of dependency benefits would be as under:
Prospective income Rs. 3900/-. 1/3rd Rs. 1300/- deducted for his personal expenditure of the deceased. Leaving Rs. 2600/- for the claimants per month or Rs. 31,200/- per annum. Adopting multiplier of 16, the loss of dependency benefit would work out to Rs. 4,99,200/- which is rounded up to Rs. 5 lacs. Further amount of Rs. 20,000/- towards conventional charges and Rs. 2000/- towards funeral charges would make it Rs. 5,22,000/-. The Tribunal having already awarded Rs. 2,56,000/-, the claimants would receive Rs. 2,66,000/- from the opponents which may be recovered at the simple interest at the rate of 8% per annum from the date of petition till actual realization.
HC-NIC Page 7 of 8 Created On Sat Oct 31 02:02:10 IST 2015 [CASE NUMBER] 11. Regarding death of [ENTITY], the Tribunal committed some
error in granting 100% rise for future income. However, even the base figure of Rs 600/- per month was certainly on the lower side. Adopting the base income of Rs. 800/- per month and prospective income of Rs. 1200/-, one may adopt 1/3rd thereof for her own personal expenditure, leaving Rs. 800/- for the claimants per month or Rs. 9600/- per annum. Again adopting multiplier of 16, the loss of dependency benefit would come to Rs. 1,53,600/- to be added by Rs. 22,000/- towards conventional figures and funeral charges bringing total to Rs. 1,75,000/-. The Tribunal having awarded Rs. 1,30,000/- the claimants will receive additional amount of Rs. 44,600/- with simply interest @8% from the date of claim petition till realization. All the appeals are disposed of accordingly.
([ENTITY], J.) [ENTITY] HC-NIC Page 8 of 8 Created On Sat Oct 31 02:02:10 IST 2015