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2007 Supreme(Guj) 644
Gujarat High Court
Judgename :MS.R.M.DOSHIT
KEDARNATH KUNJILAL AGRAWAL - Appellant
Versus
GUJARAT STATE ROAD TRANSPORT CORPORATION - Respondent
FIRST APPEAL 606 Of 1985
Decided On : 10/15/2007
Headnote:Point in Issue :
Whether claimant was entitled to enhancement of compensation amount and Insurance Company was liable?
Head Note :
Motor Vehicles Act, 1939 (4 of 1939) - Section 2, Clauses 8, 9, 25, 33 and Section 110-D - Appeal - Award - Claim for enhancement of compensation amount - And also to hold Insurance Company liable - Finding as to - Sustainability - As to the accident in question there is no dispute that the accident did occur and claimant received alleged injuries in question - It is also not in dispute that the accident occurred on account of negligence of truck driver - Tribunal has awarded to a total of Rs. 34,000/- as compensation including Rs. 12,000/- for injuries but has not awarded any compensation for actual loss of income - Considering the fact that claimant could not attend the business and suffered permanent disability the annual loss of future income can fairly be estimated at Rs. 2,000/- - Adopting multiplier of 10 claimant was entitled to compensation of Rs. 20,000/- on this count enhancing amount of compensation to Rs. 46,000/- - So far liability of Insurance Company is concerned Tribunal erroneously accepted the defence of Insurance Company that driver of the offending truck did held valid driving licence therefore, it was not liable to indemnify the insured - Admittedly the driver possessed a valid license for driving heavy goods vehicle - The offending truck was necessarily a heavy goods vehicle within the meaning of Clause 9 of Section 2 of the Act - Court, therefore, held that Insurance Company was liable in respect of compensation awarded to the claimant - Court thus modified the award accordingly.
Held :
The claimant ought to have been awarded a sum of Rs. 4,000/- for actual loss of income. Considering the fact that the claimant had a retail business and that he had suffered permanent disability in the right hand elbow, his business would certainly be adversely affected on account of the said debility. Considering the permanent disability suffered by him, the annual loss of future income can fairly be estimated at Rs. 2,000/- In that case, considering the 10 years multiplier adopted by the Tribunal, the claimant would be entitled to compensation of Rs. 20,000/- for loss of future income. [Para 8]
Court is of the opinion that the claimant was entitled to compensation in the sum of Rs. 46,000/- including the sum of Rs. 12,000/- for the injuries suffered by him and the sum of Rs. 10,000/- towards medical expenses incurred by him. [Para 9]
Court is of the opinion that any "goods vehicle", "heavy goods vehicle" or "public service vehicle" can be commonly called as "transport vehicle". In other words, the heavy goods vehicle is not different from a transport vehicle. Any person possessing a driving license for a transport vehicle can be said to hold a valid license to drive either a goods vehicle or a public service vehicle. The offending truck was necessarily a heavy goods vehicle within the meaning of Clause 9 of Section 2 of the Act. The driver of the offending truck thus possessed a valid license to drive the offending truck. In my opinion, the Tribunal has erred in distinguishing the "transport vehicle" from a "heavy goods vehicle" without considering the above referred statutory definitions appearing in the Act. The Tribunal has thus erred in absolving the Insurance Company from its liability in respect of the compensation awarded to the claimant.
[Para 12]
Law Laid Down :
Heavy goods vehicle means any goods vehicle the registered laden weight of which or a tractor the unladen weight of which exceeds 11000 Kilograms.
Case Law Analysis :
National Insurance Company Limited vs. Swaran Singh & Ors., 2004 (3) SCC 297 [Para 5];; Oriental Insurance Company Limited vs. Shiv Narain Sahani & Ors., 2007 ACJ 1640 [Para 5].-Relied on
Conclusion :
Claimant was entitled to compensation amount of Rs. 46,000/- and Insurance Company cannot be exonerated from its liability.
Decided in Favour of :
Appellant
Appeal Allowed
( 2 ) ON 3rd September, 1982, the claimant was travelling aboard the GSRTC bus bearing registration No. GRS-7511 en-route village-Vihara to Olpad. The claimant had boarded the bus at village Vihara. After travelling for a few minutes from Andhi bus stop, near a culvert, an on-coming truck " the offending vehicle collided with the bus on the right hand middle of its body. After striking the bus, the truck continued to move further and landed into a ditch. In the said collision, the claimant suffered injuries for which he had to take long drawn treatment. The claimant also suffered permanent partial disability. The claimant filed claim petition no. 616 of 1982 before the Motor Accident Claims Tribunal, Surat for compensation in the sum of Rs. 50,000/=. According to the claimant, he was around 42 years of age; he had a retail shop at village-Vihara; he had suffered compound inter-condular fractures of right humerus; fracture of right radius; and right ulna. He was operated in emergency. Nails were inserted to repair the fractures. He had to undergo bone grafting operation and subsequently had to undergo operation for removal of the nails. He suffered permanent partial disability to the right upper limb. The movement of the right elbow was restricted to around forty per cent. He suffered wasting of the muscles of the upper and fore arm and post traumatic osteoarthritis of right elbow joint. In the opinion of the doctor, the overall permanent partial disability was to the extent of 22 per cent. The movement of the right hand was restricted. Lifting of weight by the right hand was not possible. Considering his age of 42 years, the multiple fractures suffered by him, the long and painful medical treatment, and the permanent partial disability suffered by him, the learned Tribunal has awarded compensation in the sum of Rs. 34,000/=. The loss of future income is calculated at Rs. 12,000/=. A sum of Rs. 10,000/= has been awarded for medical expenses. A sum of Rs. 12,000/= has been awarded for the injuries suffered by the claimant.
( 3 ) ON examination of the panchnama and the oral evidence of the eye witness, the learned Tribunal held that the driver of the offending vehicle " the truck " was wholly responsible for the accident in question. It is not disputed that the offending vehicle was insured by the respondent no. 4-Insurance Company. The Insurance Company, however, raised the defense that the driver of the offending truck did not hold valid license to drive the truck. The Insurance Company was, therefore, not liable to indemnify the insured " the owner of the truck " for the third party liability incurred by him. The defence was accepted by the Tribunal. The Tribunal observed that the driver of the truck possessed a "heavy motor vehicle" license. While he was driving a transport vehicle " a public carrier. The owner of the truck had committed breach of the terms and conditions of the insurance policy in allowing the truck driver to drive the truck, a transport vehicle, without a valid license to drive such vehicle. In the result, the insurance company was absolved fro
