ORAL JUDGMENT

1. Feeling aggrieved by and dissatisfied by the judgment and award dated 29.9.2012 passed by the Motor Accident Claims Tribunal (Aux.), Nadiad in MACP No.1397 of 2019, the appellant– insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”).

2. Following facts emerge from the record of the appeal:-

That, the accident occurred on 2.8.2009 when the deceased Satishbhai was driving his motorcycle bearing registration no. GJ-1 EF- 7143. Record indicates that the deceased was passing through the market and at that time, a tractor-trolley bearing registration no. GJ-7 AN-3229 being driven in a rash and negligent manner came from the other side and ran over the deceased. The record further indicates that the deceased succumbed to such injuries on the spot. An FIR was registered with Mahemdabad Police Station bearing CR no. I-181 of 2009 and the respondents – original claimants filed the present claim petition under Section 163A of the Act and claimed compensation of Rs.4,53,300/-. The original claimant no.1 was examined at Exh.17 and the original claimants also relied upon the documentary evidence, such as, FIR Exh.22, Panchanma of the tractor Exh.23, inquest Panchnama Exh.24, postmortem report Exh.25, charge-sheet Exh.26, driving license of original opponent no.1 Exh.29, R.C. book of tractor Exh.30, Panchnama of the place of accident Exh.53. The insurance Company also examined Amrishkumar Mukeshbhai Patel at Exh.38 and relied upon the documentary evidence, such as, extracts of registration of the tractor involved in the accident at Exh.39, driving license of original opponent no.1 Exh.40 and insurance policy of tractor Exh.48. The Tribunal, after appreciation of the evidence on record, applied structured formula and while partly allowing the claim petition, awarded total compensation of Rs.3,88,500/- and being aggrieved by the same, the present appeal is filed by the appellant–

insurance Company.

3. Heard Mr. H.G. Mazmudar, learned advocate for the appellant. Though served, no one appears for the respondents. I have also perused the original record and proceedings.

4. Mr. H.G. Mazmudar, learned advocate for the appellant has contended that the driver of the tractor involved in the accident who was driving tractor with a trolley possessed only license for Light Motor Vehicle and there was no endorsement of transport vehicle. It was contended that the driver of the tractor did not have a valid and effective license on the date of the accident. It was also contended that the Tribunal has committed an error in not considering the plea of negligence raised by the appellant. According to Mr. Mazmudar, learned advocate for the appellant, even in claim petition filed under Section 163A of the Act, negligence has to be considered. It was further contended that the original claimant- deceased was a pillion and therefore, even as per the structured formula, one-half is required to be deducted. On the aforesaid grounds, it was therefore contended by Mr. Mazmudar, learned advocate for the appellant that the impugned judgment and award deserves to be modified by allowing the appeal.

5. No other or further submissions, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

6. So far as the first contention about the non-

endorsement of transport vehicle in the driving license is concerned, the said issue is covered by the judgment of the Hon'ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited, (2017) 14 SCC 663, wherein the Hon'ble Apex Court has observed thus:-

“60. Thus we answer the questions which are referred to us thus:

60.1 “Light motor vehicle” as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by