HITESHBHAI GOPALBHAI vs ARVINDBHAI DHANJIBHAI MAKWANA
- Court
- Gujarat High Court
C/FA/838/2017 JUDGMENT DATED: 29/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 838 of 2017
With
R/FIRST APPEAL NO. 839 of 2017
With
R/FIRST APPEAL NO. 840 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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HITESHBHAI GOPALBHAI & ANR.
Versus
ARVINDBHAI DHANJIBHAI MAKWANA & ANR.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 29/06/2026
JUDGMENT
1. The captioned appeals arise out of the common impugned
judgment and award dated 09.11.2016 passed by the learned Motor
th
Accident Claims Tribunal (Aux.) & 07 Additional District & Sessions
Judge, at Rajkot in M.A.C.P. No. 137 of 2015, M.A.C.P. No. 138 of 2015
& M.A.C.P. No. 139 of 2015. The learned Tribunal had partly allowed all
the Claim Petitions and awarded a sum of Rs.1,00,000/- in M.A.C.P. No.
137 of 2015, a sum of Rs.3,40,500/- in M.A.C.P. No. 138 of 2015 and a
sum of Rs.1,54,500/- in M.A.C.P. No. 139 of 2015, along with interest at
the rate of 9% per annum, from the date of filing of the claim petitions
till its realization, as compensation, however, the original opponent
No.2/respondent No.2 herein – Insurance Company was exonerated
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from its liability to satisfy the award.
2. The brief common facts, which lead to the filing of the captioned
appeals, as narrated in the Claim Petition are summarized as under :-
i. On 24.08.2014 at about 07:00 p.m., the deceased in
M.A.C.P. No. 137 of 2015 – Mr. Kanabhai Hiteshbhai,
the deceased in M.A.C.P. No. 138 of 2015 – Mr.
Ranchhodbhai Versibhai and the deceased in M.A.C.P.
No. 139 of 2015 – Ms. Manjuben Ranchhodbhai were
travelling as passengers in a passenger rickshaw
bearing registration No.GJ-3W-3193. In the meantime,
original opponent No.1/respondent No.1 herein came by
driving one chakdo rickshaw bearing registration No.GJ-
3AV-312 and tried to overtake the passenger rickshaw
in which the deceased persons were travelling from
behind. At that time, a cow suddenly came in front of
the passenger rickshaw and in order to avoid hitting the
cow, the driver of the passenger rickshaw applied the
brake and as a result, the chakdo rickshaw rammed into
the passenger rickshaw in which the deceased persons
were travelling from behind, thereby causing the
vehicular accident. The said vehicular accident resulted
in the death of all the three deceased persons.
ii. Therefore, the original claimants/appellants herein has
preferred the respective Claim Petitions before the
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learned Tribunal seeking compensation on account of
the death of the deceased persons.
iii. Having been served with the notices/summons of the
Claim Petition, the original opponent No.2/respondent
No. 2 herein – Insurance Company has filed its Written
Statement, thereby, denying the contentions raised in
the claim petitions and in brief, prayed for dismissal of
the claim petitions.
iv. Having considered the pleadings, evidence on record
and the submissions advanced by the learned counsels
for the respective parties, the learned Tribunal had
partly allowed all the Claim Petitions and awarded a sum
of Rs.1,00,000/- in M.A.C.P. No. 137 of 2015, a sum of
Rs.3,40,500/- in M.A.C.P. No. 138 of 2015 and a sum of
Rs.1,54,500/- in M.A.C.P. No. 139 of 2015, along with
interest at the rate of 9% per annum, from the date of
filing of the claim petition till its realization, as
compensation, however, original opponent
No.2/respondent No.2 herein – Insurance Company was
exonerated from its liability to satisfy the award.
v. Being aggrieved and dissatisfied with the impugned
judgment and award, the claimants/appellants herein
have challenged the exoneration of the respondent No.2
– Insurance Company from its liability to satisfy the
award in all the captioned appeals and have also prayed
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for enhancement of the compensation awarded by the
learned Tribunal in M.A.C.P. No.137 of 2015.
3. Heard learned counsels for the parties.
4. Mr. Hemal Shah, learned counsel appearing on behalf of the
original claimants/appellants herein vehemently submitted that the
learned Tribunal had exonerated the respondent No.2 -Insurance
Company from its liability to satisfy the award on the ground that at the
time of the vehicular accident, the respondent No.1 - driver cum owner
of the chakdo rickshaw bearing registration No.GJ-3AV-312 was not
holding a valid driving license to drive the said vehicle. He further
submitted that all the deceased were third parties, as such, contended
that in the absence of a valid driving license, the learned Tribunal ought
to have passed the order of Pay and Recovery.
5. Learned counsel for the original claimants/appellants herein
further submitted that there is no dispute with regard to the
compensation awarded by the learned Tribunal in M.A.C.P. No. 138 of
2015 & M.A.C.P. No. 139 of 2015, however, challenged the
compensation awarded by the learned Tribunal in M.A.C.P. No. 137 of
2015. He further submitted that at the time of the vehicular accident,
the deceased in M.A.C.P. No. 137 of 2015 – Kanabhai Hiteshbhai was a
minor aged about 7 months. He further submitted that the said Claim
Petition came to be filed before the learned Tribunal under Section
163A of the Motor Vehicle Act (hereinafter referred to as the “ Act ”),
seeking compensation on account of the death of the deceased -
Kanabhai Hiteshbhai in the accident which took place on 24.08.2014.
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He further submitted that the Motor Vehicles Act came to be amended,
and Section 164 of the Act has been inserted. He contended that as per
the newly inserted Section 164 of the MV Act, the claimants/appellants
in M.A.C.P. No.137 of 2015 are entitled to get compensation to the tune
of Rs.5,00,000/-. He further submitted that Section 164 of the Act can
be applied retrospectively. In support of his contentions, learned
counsel for the original claimants/appellants placed reliance upon the
judgment rendered by the Hon’ble Apex Court in the case of New
India Assurance Company Limited v. Urmila Halder reported in
2024 (0) AIJEL-SC-74844 . Placing reliance upon the aforesaid
judgment, learned counsel for the original claimants/appellants
submitted that the compensation awarded by the learned Tribunal in
M.A.C.P. No.137 of 2015 deserves to be enhanced and prayed that a
lumpsum amount of Rs.5,00,000/- be awarded as compensation to the
original claimants/appellants in M.A.C.P. No.137 of 2015. Therefore, he
prayed for modification of the impugned judgment and award.
6. On the other hand, Mr. Mazmudar, learned counsel appearing for
the respondent No.2 - Insurance Company vehemently submitted that
there is no infirmity in the impugned judgment and award. He further
submitted that the respondent No.1 – driver of the offending rickshaw
was not holding a valid driving license at the time of the vehicular
accident, as such, argued that no liability can be fastened upon the
respondent No.2 – Insurance Company. He further submitted that the
driving license in question has been proved on record at Exh.37, which
reveals that it came to be issued after the date of the vehicular
accident. He contended that it is clear from the records that respondent
No.1 – driver of offending rickshaw was not having a valid driving
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license, as such, argued that the breach of insurance policy has been
proved on record. Therefore, he submitted that the learned Tribunal
has rightly exonerated the respondent No.2 – Insurance Company from
its liability to satisfy the award.
7. So far as the compensation awarded by the learned Tribunal in
M.A.C.P. No.137 of 2015 is concerned, learned counsel for the
respondent No.2 – Insurance Company vehemently argued that the
said Claim Petition has been filed under the provisions of Section 163A
of the Act. He contended that the learned Tribunal, after considering
the facts and circumstances of the case, had awarded just
compensation in accordance with the provisions of Section 163A of the
MV Act. He further submitted that the newly inserted Section 164 of the
Act cannot be applied retrospectively. Therefore, he submitted that the
captioned appeals being devoid of merits is liable to be dismissed.
8. Having considered the submissions of the learned counsels for
the parties and having gone through the material available on record, it
is to be noted that the claimants/appellants have challenged the
exoneration of respondent No.2 – Insurance Company from its liability
to satisfy the award in all the captioned appeals; and have also prayed
for enhancement of the compensation awarded by the learned Tribunal
in M.A.C.P. No.137 of 2015.
COMPENSATION IN M.A.C.P. NO. 137 of 2015
9. It can be seen from the records that M.A.C.P. No.137 of 2015
was filed before the learned Tribunal under Section 163A of the MV Act,
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1988. Section 163A of the Motor Vehicle Act came to be amended and
Section 164 was inserted in the amended Motor Vehicle Act. Section
164 of the MV Act reads as under :-
“ Section 164 of the MV Act.
164. Payment of compensation in case of
death or grievous heart, etc.-(1) Notwithstanding
anything contained in this Act or in any other law
for the time being in force or instrument
having the force of law, the owner of the motor
vehicle or the authorised insurer shall be
liable to pay in the case of death or grievous hurt
due to any accident arising out of the use of motor
vehicle, a compensation, of a sum of five lakh
rupees in case of death or of two and a half lakh
rupees in case of grievous hurt to the legal
heirs or the victim, as the case may be.
(2) In any claim for compensation under sub-
section (1), the claimant shall not be required to
plead or establish that the death or grievous hurt
in respect of which the claim has been made was
due to any wrongful act or neglect or default of the
owner of the vehicle or of the vehicle concerned or
of any other person.
3) Where, in respect of death or grievous hurt due
to an accident arising out of the use of motor
vehicle, compensation has been paid under any
other law for the time being in force, such amount
of compensation shall be reduced from the amount
of compensation payable under this section.”
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10. Section 164 of the Motor vehicle Act empowers the Tribunal to
award compensation of Five lakh rupees in case of death and two and a
half lakh in case of grievous hurt to the legal heirs or the victim, as the
case may be.
11. The issue as to whether Section 164 of the MV Act can be applied
retrospectively, came for consideration before the Hon’ble Apex Court in
the case of Urmila Halder (supra), and in para 10 of the judgment,
the Hon’ble Apex Court has observed as under:-
“10. The order of the High Court is well discussed and we
agree with the view taken. We may, however, add that a
beneficial legislation would necessarily entail the benefit to
be passed on to the claimant in the absence of any specific
bar to the same. In the present case, the liability of the
appellant-Insurance Company has not been interfered
with. Only the computational mode and the modality have
been further clarified, which rightly has been noted by the
High Court and accordingly, the claim has been enhanced
to 5,00,000/- (Rupees Five Lakhs). As 50% of the
compensation amount was stayed by this Court, the same
be paid to the respondent in terms of the impugned
judgment within eight weeks.”
12. Thus, considering the ratio laid down by the Hon’ble Apex Court
in the case of Urmila Halder (supra), I am of the considered view that
the submissions advanced by the learned counsel for the respondent
No.2 - Insurance Company on the point of quantum in M.A.C.P. No.137
of 2015 is not sustainable. Therefore, original claimants/appellants in
M.A.C.P. No.137 of 2015 are entitled to get the compensation to the
tune of Rs.5,00,000/- and accordingly, the compensation awarded by
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the learned Tribunal in M.A.C.P. No. 137 of 2015 is hereby enhanced to
Rs.5,00,000/-. The learned Tribunal had awarded interest at the rate of
9% per annum from the date of filing of the Claim Petition till its
realization. The said rate of interest is maintained; accordingly, the
original claimants in M.A.C.P. No. 137 of 2015 shall be entitled to 9% of
interest per annum on the additional amount of compensation from the
date of filing of the Claim Petition till its realization.
ISSUE OF EXONERATION OF INSURANCE COMPANY.
13. Respondent No.2 – Insurance Company has been exonerated on
the ground that at the time of the vehicular accident, the respondent
No.1 – driver of the offending rickshaw was not holding a valid license
to drive the rickshaw. The driving license in question was proved on
record at Exh.37. Perusal of the said driving license would show that it
covers various categories/class of vehicles including 3W-NT, LMV,
MCWG & Tractor. It is also evident from the records that the said
license came to be issued on 01.06.2015, however, the vehicular
accident in question occurred on 24.08.2014. Thus, it is evident from
the records that at the time of the vehicular accident, the respondent
No.1 – driver of offending rickshaw was not holding a valid driving
license and the driving license in question came to be issued much
later, i.e., after ten months from the date of the vehicular accident.
Merely having no license or invalid license or fake license is not a
sufficient ground to defeat the claim of third parties. At this juncture, it
would be profitable to refer to the judgment rendered by the Hon’ble
Apex Court in the case of National Insurance Co. Ltd. v. Swaran
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Singh and Ors. reported in (2004 (3) SCC 297), wherein the
Hon’ble Apex Court at para 110 (clause – iii) has held as under:-
“(iii) The breach of policy condition e.g., disqualification
of driver or invalid driving licence of the driver, as
contained in sub-section (2)(a)(ii) of section 149, have to
be proved to have been committed by the insured for
avoiding liability by the insurer. Mere absence, fake or
invalid driving licence or disqualification of the driver for
driving at the relevant time, are not in themselves
defences available to the insurer against either the insured
or the third parties. To avoid its liability towards insured,
the insurer has to prove that the insured was guilty of
negligence and failed to exercise reasonable care in the
matter of fulfilling the condition of the policy regarding use
of vehicles by duly licensed driver or one who was not
disqualified to drive at the relevant time”
14. Thus, having regard to the ratio rendered by the Hon’ble Apex
Court in the aforesaid judgment, I am of the considered view that it
would be just and proper if at the first instance, respondent No.2 -
Insurance Company is directed to satisfy the award and thereafter, may
recover the same from the owner or driver of the offending rickshaw,
by way of filing execution petition before the learned Tribunal
concerned.
15. Thus, in view of the above discussion, the impugned judgment
and awards stands modified to the aforesaid extent and the captioned
appeals stands partly allowed.
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16. Respondent No.2 – Insurance Company at the first instance is
directed to satisfy the awards (including the additional amount of
compensation awarded by this Court in M.A.C.P. No. 137 of 2015),
along with same rate of interest as awarded by the learned Tribunal to
the original claimants in all the captioned appeals, within a period of six
weeks from the receipt of copy of this order, and thereafter, may
recover the same from the owner or driver of the offending rickshaw,
by filing execution proceedings before the learned Tribunal concerned.
Upon depositing the awarded amount along with interest, the learned
Tribunal shall disburse the same to the original claimants (deducting
deficit Court fee, if any), after due verification.
17. Statutory amount, if any, lying deposited with the Registry of this
Court shall be transmitted to the learned Tribunal concerned forthwith.
Records & Proceedings, if any be sent to the learned Tribunal
concerned. No order as to costs.
18. Pending application, if any, stands disposed of, accordingly.
(MOOL CHAND TYAGI, J)
ARUN...
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