FA/2484/2008 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2484 of 2008 With CIVIL APPLICATION No. 6499 of 2008 In FIRST APPEAL No. 2484 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NEW INDIA ASSURANCE COMPANY LIMITED - Appellant(s) Versus MARIYABAI FAKIRMAMAD SIDI & 6 - Defendant(s) ========================================================= Appearance : (MR PV NANAVATI) for Appellant(s) : 1,MR VIBHUTI NANAVATI for Appellant(s) : 1, None for Defendant(s) : 1 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 01/08/2008 ORAL JUDGMENT 1. Heard learned Advocate Mr. Vibhuti Nanavati for the appellant New India Assurance Co. Ltd. FA/2484/2008 2/25 JUDGMENT 2. In this appeal, the appellant insurance company has challenged the award made by the MACT (FTC- 5) Kachchh at Bhuj in MACP No. 432 of 2004 [Morbi MACT Case No. 134/1990] dated 27th August, 2007 wherein the Claims Tribunal has awarded compensation of Rs.4,19,000.00 with 15% interest from the date of filing of them in claim petition upto 30th June, 1997 and thereafter, interest at the rate of 12 % p.a. For a period from 1st July, 1997 to 31st December, 2000 and, thereafter, interest at the rate of 9 per cent per annum from 1st January, 2001 till the date of payment is made along with proportionate costs of proceedings. 3. Learned Advocate Mr. Nanavati for the appellant has raised contention that the claims tribunal has committed an error in assessing income of the deceased. He also raised contention that in chassis, no seat is available to the other driver and yet the deceased was travelling on chassis from Gandhinagar to Gandhidham andrisk of deceased was not covered under the policy of insurance and, therefore, insurance company is not liable to pay compensation to the claimants. He also submits that the future prospective income was also wrongly considered by the claims tribunal. According to the claimants, deceased was receiving salary of Rs.1200.00 p.m. Plus Rs.20.00 per day towards bhattha and, thus, total would come to Rs.1800.00 but instead of that, the claims tribunal has erroneously FA/2484/2008 3/25 JUDGMENT considered Rs.3000.00 as monthly income of the deceased. He also raised contention that the multiplier of 16 looking to the age of the deceased 35 years at the time of accident, is also on higher side. He also raised contention that the Second Schedule, Structured Formula has wrongly been applied by the tribunal. He also submitted that the claims tribunal has committed an error in awarding more compensation than the claim made by the claimants in their claim petition. He submits that the claims tribunal has no jurisdiction to award compensation which is more than the laim made by the claimants. He also emphasized that looking to the insurance policy, insurance company is not liable to make payment of compensation to the claimants as no risk of the deceased is covered by the insurance policy. Except that, no other contention was raised by learned Advocate Mr. Nanavati before this Court and no decision was cited by him in support of the aforesaid contentions recorded by this court. 4. Brief facts of the present case are to the effect that on 14.1.1990, after taking delivery of new Tata Truck open Chassis, the deceased was returning from Ahmedabad and was proceeding to Gandhidham in the said chassis as a second driver. It was alleged by the claimants that the opponent no.1 was driving the chassis and around 11.00 hours, chassis No. 364-052-8-98368 had reached near Bandhunagar and Devi Pottery on FA/2484/2008 4/25 JUDGMENT Vankaner Morbi Highway Road. It was alleged that the opponent no.1 was driving the chassis rashly, recklessly, negligently at an excessive speed without observing the rules of the road and without caring for the safety of public. It was alleged that opponent no.1 suddenly took the turn with full speed and lost control over the steering, therefore, deceased fell down from the chassis, sustained serious injuries and died on the spot. Based upon the aforesaid facts, claim petition was filed by the claimants before the claims tribunal claiming compensation of Rs.3,00,000.00 jointly and severally from the opponents. 5. Before the claims tribunal, opponents no.1 and 2 have not appeared and have also not filed any written statement challenging the factum of deceased as a second driver, involvement of the chassis in the accident and resultant death of the deceased. However, opponent no.3 Insurance Co. filed its written statement Exh.13 contending inter alia that the risk of the deceased was not covered under the policy; deceased was travelling in the truck as unauthorized passenger; deceased had not died on account of the accident. Factum of insurance was also not admitted and it was alleged that there is breach of specific conditions of the policy. 6. Before the claims tribunal, applicant No. 2 Shri Anwar Fakirmamad Sidi was examined at Exh. 38. According to him, his father was working as FA/2484/2008 5/25 JUDGMENT driver in Kachchh Highway Transport and he was receiving salary of Rs.1200.00 p.m. And also getting Bhattha at the rate of Rs.20.00 per day. As per his deposition, now a days, salary of Rs.3000.00 p.m. and Bhattha of Rs.100.00 per day is available to driver. It was also deposed by him that the accident occurred on 14.1.1990. 7. Before the claims tribunal, one eye witness Dolubha Mulubha was examined at Exh. 42 who has deposed that his hotel is situated near Bandhunagar on Ahmedabad Morbi Highway. On 14.1.1990, he was sitting on his hotel. A chassis without body was coming from Ahmedabad side. This driver was driving the chassis with full speed and carelessly and because of speed, he lost control over the steering. The chassis went of the road on kutcha road. It was deposed that a person sitting on the cleaner side seat had fallen on the road. The driver of the chassis had run away. It was also deposed by him that he had gone near the man who had fallen on the road. He had died because of the injuries. He was looking like Sidi. Accordingly, complaint was filed. FIR was registered which is at Exh. 31. Panchanama is at Exh. 32. PM Report is at Exh. 33. After investigating, charge sheet was filed by Morbi Police against opponent NO. 1 which is at Ex.37 for driving new chassis in full speed resulting into accident and death of the deceased and for running away from the place of accident. Insurance policy was produced by FA/2484/2008 6/25 JUDGMENT the opponent no.3 at Exh. 50 and chassis number given in the policy tallied with the chassis number mentioned in para 10/3 of the claim petition. According to the claimants, if the chassis number 364-052-8-98368 was not involved in the accident as alleged by opponent no. 3, then, the company could have filed appeal against No fault liability award dated 31.8.1996. The claims tribunal has, after considering the deposition of applicant No. 2 Anwar Hussein Fakirmamad Sidi Exh. 38 and deposition of eye witness Dolubha Mulubha Exh. 42 as well as the panchanama Exh.32 and charge sheet Exh. 37 as well as PM Note Exh. 33, held negligence on the part of the driver of new Tata Open Chassis No. 364-052-8-98368 while in employment of opponent no. 2. 8. As regards contention raised by the learned advocate Mr. Nanavati in respect of assessment of income of the deceased as discussed in para 14 by the claims tribunal, relevant discussion made by the claims tribunal in para 14 and 15 is reproduced as under: “ISSUE NO. 2: 14.Anwar Fakirnanad, Ex. 38 has further testified that his father was working as a driver in Kachchh Highway Transport. He was getting salary of Rs. 1200=00 per month. He was also getting bhattha at the rat of Rs. 20=00 per day. He has further testified that FA/2484/2008 7/25 JUDGMENT at present the monthly salary of drivers in Kachchh District is Rs. 3,000=00 per month. The drivers are getting bhattha at the rate of Rs. 100=00 per month. Nothing fruitful has come for the opponent in the cross examination. No rebuttal evidence is led by the opponents. I, therefore, hold that the monthly income of the deceased was Rs. 1800=00, inclusive of bhattha at the time of accident, as held by our own Honourable High Court, bhattha for 30 days can be taken into consideration in such cases. 15. Shri S. L. Suchday, the learned advocate for the applicants has argued that according to settled principle of law, reasonable and probable increase in the income of the deceased and inflationary trend prevailing in Indian Exononmy and resulting into constant fall in the value of rupee are required to be taken into consideration. He has further submitted that keeping in view specific evidence of Anwar Hussein Fakirmamad Exh 38, who himself is a driver the monthly income of the deceased may be computed at Rs. 6000=00 for the purpose of assessing the compensation. The learned advocate Shri Suchday has also relied on the FA/2484/2008 8/25 JUDGMENT decision reported in 2006 ACJ page 2688 Gujarat para 9 and submitted that the Honourable Gujarat High Court has been pleased to hold that the monthly contribution of Rs. 3000=00 can be taken into consideration, even in cases of non earning housewives. Honourable the Supreme Court of India also has earlier held in the case of LATA WADHWA AND OTHERS VS STATE OF BIHAR AD OTHERS reported in 2001 ACJ page 1725, that the monthly contribution of non earning housewives can be considered at Rs. 3000=00. The Motor Vehicles Act is a benevolent piece of legislation. The monthly income of the deceased driver can be safely computed at Rs. 6000=00. The learned advocate for the petitioner has stated that if he had not died, he would have earned much more amount. In support of his submission Shri S. L. Suchday has placed reliance on a judgment of our own Honourable High Court in case of SARYUBEN HI. HICWAL VS. ATAULLAKHAN PATHAN AND OTHERS REPORTED IN 2001 (3) G. L. R. 2029, wherein it has been held that while computing the income for the purpose of assessment of compensation, the Court should take into consideration the income of the deceased on the date of FA/2484/2008 9/25 JUDGMENT accident. Thereafter, the Court should take into consideration the probable income of the deceased, which would have been at the time of retirement. Thereafter, the Court should add the income at the time of retirement to the income at the time of accident. ” 9. Considering the observations made by the claims tribunal as aforesaid, the tribunal has considered basic salary of the deceased of Rs.1200.00 and then included Rs.20/- per day and thereafter, considering future prospectus of income, assessed income of the deceased at Rs.3000.00. According to my opinion, motor accident claim petition of the year 1990 has been decided by the claims tribunal after the period of 17 years and looking to the evidence of applicant no.2 Anwar F. Mohmad that now a days, salary of the driver is Rs.3,000.00 and driver is now a days getting Rs.100.00 per day towards bhattha and considering the same, tribunal assessed income of Rs.3000.00 p.m. Considering prospective average income of the deceased and in doing so, the claims tribunal has not committed any error requiring interference of this Court. 10.As regards another contention raised by learned Advocate Mr. Nanavati on behalf of the appellant about the liability, this aspect has been examined by claims tribunal in para 29 to 36. Therefore, para 29 to 36 of the award are FA/2484/2008 10/25 JUDGMENT reproduced as under: “LIABILITY OF INSURANCE COMPANY TO PAY COMPENSATION:- 29. Shri K.H.Vaishnav, the learned advocate for the opponent No.3 has argued that the driving licence of the deceased is not produced in this case. Deceased, therefore, was not the driver but he was unauthorized passenger. Insurance Company is, therefore, not liable to pay compensation. Shri S.L.Suchday, the learned advocate for the applicants has submitted that the driving licence of the deceased is produced at Exh.40. In view of the above position, the submission of Shri Vaishnav cannot be accepted. 30. Shri K.H.Vaishnav has further argued that as testified by Shri Pravinbhai Bhawanbhai Trivedi, Exh.59, Junior Clerk of the office of R.T.O., Bhuj, the sitting capacity was one as shown in column No.4 of the temporary passing Exh.53. He has argued that two persons, therefore, cannot sit in the chassis. This is, therefore, a case of breach of terms and conditions of the policy. As against this, Shri S.L.Suchday, the learned advocate for the applicants has argued that as admitted in the cross-examination by the witness examined by the insurance company that it FA/2484/2008 11/25 JUDGMENT is true that the sitting capacity can be mentioned by the Inspector at the time of permanent passing. A clerk has no authority to write sitting capacity. It is not necessary to mention sitting capacity in any manner at the time of temporary passing. Exh.61(New) Exh.53(old) is admittedly issued by the clerk who had no authority to mention sitting capacity. The witness examined by the insurance company has further clarified in cross-examination the position under the Old Act i.e. 1939 and old Rules and under New Act, i.e. 1988 Act and New Rules. Shri Trivedi has mentioned that Exh.61 New and 53 old is on the basis of old form (which does not survive after 01.07.1989). 31. Shri S.L.Suchday, Ld.Ad. For the applicants has argued that after 1988 Act, the certificate of temporary registration is to be issued as per Exh.62(New)/Exh.54(old). No sitting capacity is to be mentioned after 1988 Act while issuing temporary registration certificate. Sitting capacity is to be mentioned at the time of permanent passing, keeping in view the nature of the vehicle. In this case, sitting capacity of two is mentioned in Exh.58(New)/Exh.54(old) at the time of permanent passing. The clerk who FA/2484/2008 12/25 JUDGMENT had no authority to mention the sitting capacity has erroneously used old form Exh.61(New)/Exh.53(old) which is no more survive after 01.07.1989. the same is, therefore, to be ignored. He has further submitted that as testified by the informant and an independent eye witness shri Dolubha Mulubha, the person sitting on the cleaner side seat, had falled down on the road from the chassis. Shri K.H.Vaishnav has further argued that no additional premium is paid to cover the risk of deceased driver in this case. The insurance company is, therefore, not liable to pay any amount of compensation. As against this, Shri S.L.Suchday, the learned advocate for the applicants has submitted that it can be seen from the policy Exh.50, the insurance company has recovered additional premium of Rs.24=00 to cover the risk of two drivers and one cleaner at the rate of Rs.8=00 per person. Shri Suchday, placing reliance on 2004(3) Gujarat Law Reporter in the matter of Smt. Maniben S.Pandya Vs. Shashikant P.shrigalor page 1878, para 7 has submitted that the claimants would be entitled to the compensation under the policy when the risk of the driver has been covered by payment of additional premium. In the case reported in 2004(3) GLR page 1878 (Supra), the FA/2484/2008 13/25 JUDGMENT accident had taken place on Feb.27, 1987. As mentioned in para 22 of the said judgment, additional premium of Rs.16=00, as per I.M.T. 16 has been paid covering the risk of driver and cleaner. It can be seen from para 22 that additional premium per person was Rs.8=00. In the present case, the insurance company has covered risk of two drivers and one cleaner by recovering additional premium of Rs.24=00. I, therefore, hold that the insurance company is liable to pay the compensation. 32. Shri K.H. Vaishnav, the learned advocate for the opponent No.3 has vehemently argued that this is a case of breach of terms and conditions of the policy because the deceased was unauthorized passenger. As against this, Shri S.L. Suchday, the learned advocate for the applicants has submitted that the applicants have produced the driving licence of the deceased and the applicants have satisfactorily proved that the deceased was the second driver at the time of accident. 33. Placing reliance on the judgments reported in 2004(1) GDC PAGE 28 (GUJARAT) in the case of National Insurance Company Ltd. V. Ajitkumar and others, Shri K.H. Vaishnav, the learned advocate for the opponent No.3 has argued to absolve the FA/2484/2008 14/25 JUDGMENT insurance company. I have gone through the judgment. In the judgment, relied upon by Shri K.H. Vaishnav, deceased was proved to be a passenger travelling in goods vehicle. That judgment would, therefore, not be helpful to the opponent No.3 in this case. 34. As against this Shri S.L. Suchday, the learned advocate for the applicants has submitted that as held in 1996 A.C.J. page 1044 (S.C.) in the case of SOHANLAL PASSI VS. P. SESH REDDY AND OTHERS, the alleged breach is to be proved by the insurance company. The insurance company has led no evidence. Shri Suchday has further argued that assuming, without admitting, that breach is committed, even then in that case also the insurance company has to prove that the driver had carried the passenger with the knowledge of insured. He has relied on 1999 (II) GLR page 1753 para 20 and 1999 (II) GCD page 989 (GUJ.). 35. Shri s.L.Suchday, the learned advocate for the applicants has further argued that the legal position in the matter of breach of terms and conditions of policy is now very well settled by the Hon'ble Supreme Court of India in the judgment reported in (1).1987 ACJ page 411 in case of SKANDIA INSURANCE CO. LTD. VS. KOKILABEN CHANDRAVADAN AND OTHERS, (2) 1996 ACJ PAGE 1044 in the case of SOHAN LAL PASSI VS. FA/2484/2008 15/25 JUDGMENT P.SESHREDD AND OTHERS, (3). 2001 ACJ PAGE 843 in the case of NEW INDIA ASSURANCE CO.LO. VS. KAMLA AND OTHERS, (4). 2003 SRA (civil) page 250, (5). 2003 SAR (Civil) page 386 in the case of UNITED INDIA INSURANCE COMPANY LTD. VS. LEHRU AND OTHERS, (6).(2003) ACC page 368 (SC)in the case of NATIONAL INSURANCE CO.LTD VS. SWARAN SINGH AND OTHERS. 36. I have gone through the above judgments. The principle decided in the above decisions can be summarized as under:- (1) M.V.Act is a benevolent provision of law. The same should be read with benevolent eye, (2). The insurance company is liable to pay to the third parties irrespective of the fact that there has been any breach or violation of the policy conditions. If the insured had not willfully violated the condition of the policy, the insurance company cannot be exonerated from liability, (3). Since the insurance against third party is compulsory and once the insurance company had undertaken the liability to third party, incurred had undertaken the liability to third party's right to recover any amount is not affected by virtue of the provisions of the Act or by any condition in the policy, (4) Compulsory insurance affords protection to third party. So, the third party injured or victim can enforce liability undertaken by the insurer, FA/2484/2008 16/25 JUDGMENT (5). The insurance company must establish that the breach was on the part of the insured.” 11.Thus, the claims tribunal has, after considering various decisions cited at the Bar by the learned advocate for the insurance company, recorded conclusion that the additional premium was paid by the owner of the said chassis. One Pravinbhai Trivedi, Junior Clerk from RTO was examined before the claims tribunal and it was deposed by him that the sitting was one as shown in column no.4 of the temporary passing Exh. 53 and according to him, two persons cannot seat on the chassis and, therefore, this was the breach of the terms and conditions of the policy of insurance. This was deposed by him in his examination in chief. Tribunal has thereafter considered cross examination of the said witness wherein it was admitted by him that it is true that the sitting capacity can be mentioned by the inspector at the time of permanent passing. It was then observed by the claims tribunal that a clerk has no authority to write sitting capacity and it is not necessary to mention sitting capacity in any manner at the time of issuance of temporary passing. It was then observed by the claims tribunal that Exh.61(New) Exh.53(old) is admittedly issued by the clerk who had no authority to mention sitting capacity. The claims tribunal also considered the clarification made by the witness examined by FA/2484/2008 17/25 JUDGMENT the insurance company in cross-examination that Exh.61 New and 53 old is on the basis of old form which does not survive after 01.07.1989. According to the company, sitting capacity is to be mentioned at the time of permanent passing keeping in view nature of vehicle. The claims tribunal has considered that in this case, sitting capacity is mentioned as two in Exh. 58 (New) /Exh.54 (old) and the clerk was having no authority to mention the sitting capacity and has erroneously used old form Exh. 61 (New)/Exh.53 (old) which is no more surviving after 1.7.1989 and, therefore, same was ignored by the tribunal. According to the eye witness Dolubha Mulubha, person sitting on the cleaner side seat had fallen down on the road from the chassis. While examining the contention on behalf of the insurance company that the insurance company is not liable to pay compensation, the claims tribunal has considered the policy of insurance Exh. 50 and has observed that the insurance company has recovered additional premium of Rs.24.00 to cover the risk of two drivers and one cleaner at the rate of Rs.8.00per person. These are the facts emerging from the record namely insurance policy Exh.50 and, therefore, deceased who was sitting with the driver in the cleaner side seat as additional driver covered by the insurance policy placed on record by the claimant. In view of that, the contention raised by learned FA/2484/2008 18/25 JUDGMENT advocate Mr. Nanavaty about liability cannot be accepted because additional premium per person of Rs.8.00 was paid by the owner to the insurance company which covers the risk of two drivers and one cleaner, therefore, according to my opinion, the claims tribunal has not committed any error in holding the insurance company liable to pay compensation and therefore, on that count, matter does not require any interference. 12.As regards the contention raised by learned Advocate Mr. Nanavati that the multiplier of 16 adopted by the claims tribunal is on higher side, considering the observations made by the claims tribunal and also considering the age of the deceased at the time of accident, and also considering the date of accident and the date of award made by the claims tribunal, according to my opinion, such multiplier of 16 cannot be considered to be on higher side. According to my opinion, total amount of compensation awarded by the claims tribunal comes to Rs.4,19,000.00 and it cannot be considered to be on higher side or unreasonable but just and reasonable compensation has been awarded by the claims tribunal. Tribunal was right in appreciating the oral evidence of eye witness Dolubha. Claims tribunal was also right in holding liability of the insurance company as per policy of insurance wherein additional premium was paid covering risk of additional driver and cleaner and, FA/2484/2008 19/25 JUDGMENT therefore, contention raised by the learned advocate Mr. Nanavati cannot be accepted and the same is, therefore, rejected. 13.I have also considered the contention raised by the learned Advocate Mr. Nanavati that the claims tribunal has no jurisdiction to award the compensation