New India Assurance Co Ltd vs Leelaben Maheshbhai Prajapati on 24 March, 2026

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    Gujarat High Court

    New India Assurance Co Ltd vs Leelaben Maheshbhai Prajapati on 24 March, 2026

                                                                                                                    NEUTRAL CITATION
    
    
    
    
                                C/FA/1608/2015                                     JUDGMENT DATED: 24/03/2026
    
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                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                            R/FIRST APPEAL NO. 1608 of 2015
                                                         With
                                            R/CROSS OBJECTION NO. 8 of 2016
                                                          In
                                            R/FIRST APPEAL NO. 1608 of 2015
    
                          FOR APPROVAL AND SIGNATURE:
    
    
                          HONOURABLE MS. JUSTICE NISHA M. THAKORE --Sd/-
    
                          ======================================
    
                                     Approved for Reporting                       Yes           No
                                                                                  YES
                          ======================================
                                    NEW INDIA ASSURANCE CO LTD
                                               Versus
                               LEELABEN MAHESHBHAI PRAJAPATI & ORS.
                          ======================================
                          Appearance:
                          MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
                          MR MTM HAKIM(1190) for the Defendant(s) No. 1,2,3,4
                          RULE SERVED for the Defendant(s) No. 5,6
                          RULE UNSERVED for the Defendant(s) No. 7
                          ======================================
    
                          CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
    
                                                          Date : 24/03/2026
    
                                                  COMMON ORAL JUDGMENT

    1. The present appeal is filed at the instance of the
    insurance company being aggrieved and dissatisfied with the
    judgment and award dated 22nd December 2014 passed by the
    Motor Accident Claims Tribunal (Aux.) in Motor Accident
    Claim Petition no.1011 of 2010. By this said judgment and
    award, the Tribunal has partly allowed the claim petition

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    preferred by the original claimants under Section 166 of the
    Motor Vehicles Act, 1988 holding them entitled to recover
    sum of Rs.5,63,200/- from the original appellant nos.1, 2, 3,
    jointly and separately together with proportionate cost and
    interest at a rate of 9% per annum from the date of filing of
    the claim petition till its realization.

    2. Considering the grounds raised in the appeal and the
    submissions made by learned advocate for the appellant at the
    admission hearing of the appeal, this Court vide order dated
    10th August, 2015 had admitted the appeal. In the application
    for stay preferred by the insurance company the Court had
    directed them to deposit entire award amount with the
    concerned Tribunal with further directions to disburse 20% of
    the aforesaid deposited amount in favour of the claimant and
    80% was directed to be invested in long term fixed deposit
    with any Nationalized bank, initially for a period of 3 years
    which was directed to be renewed from time to time till the
    final disposal of the present appeal. Considering the fact that
    the amount as directed was deposited by the insurance
    company, this Court vide order dated 5 th October, 2015 had
    extended liberty to the claimants to withdraw periodical
    interest on such FDRs. The record and proceedings were
    called for.

    3. The notice of admission of appeal was reported to have
    been duly served upon the respondents except for respondent
    no.7. The attempts were made to serve the respondent no.7
    who is the owner of the offending vehicle. Despite service of

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    the notice upon respondent no.7 in the original claim
    proceedings, had choose not to appear and contest the claim
    proceedings.

    4. It is required to be noted that on admission of the appeal
    the original claimants have entered their appearance and had
    also preferred cross objections assailing the same self
    impugned judgment and award, with a prayer for
    enhancement of amount of compensation to the sum of
    Rs.5,63,200/-. The cross objections are directed to be heard
    along with the captioned appeal.

    5. With the able assistance of learned advocate appearing
    on record for the respective parties, the appeal as well as the
    cross objections are heard and decided together by this
    common judgment.

    6. Mr.Palak Thakkar, learned advocate appearing for the
    appellant has vehemently submitted that it has been
    successfully established by the insurance company that the
    driving license of the driver in respect of the offending truck
    which falls in the category of ‘Heavy Goods Vehicle’, was not
    renewed after 9th September, 2004 and therefore, the driver
    was not holding any valid and effective driving license on the
    date of the accident i.e. on 9 th June, 2010. In order to
    substantiate his submission, learned advocate had drawn my
    attention to the certificate of driving license issued by the
    licensing authority of Godhara in reference to the driving
    license of the driver of the offending truck. The copy of which

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    has been produced on record at Exh.33 and the certified copy
    being produced on record at Exh.39. Referring to the
    contents of the aforesaid certificate, learned advocate had
    submitted that as against item of “issuing authority”, the
    validity period is referred as 10 th March, 1995 to 9th March,
    1998, 9th September, 2001 to 9th September, 2004. Further,
    the reference is made to “HGV, HPV – 10 th March, 1995 to 9th
    September, 2004”. As against the aforesaid certificate
    provided by the licensing authority with regard to the validity
    period, the contents of the driving license of the driver of the
    offending truck which is produced on record at Exh.51
    suggest the renewal period from 9 th September, 1998 and
    thereafter on 9th September, 2001. It was further submitted
    that generally, the renewal of heavy goods vehicle would be
    for period of 3 years and therefore considering the last
    endorsement of 9th September 2001, it can safely be inferred
    that the validity period was extended up to 9 th September,
    2004. In absence of any further endorsement being
    mentioned in the driving license, it clearly establishes the
    defence raised by the appellant – insurance company that
    there was no valid and effective driving license as on the date
    of the accident that is 9th June, 2010.

    6.1 The attention of this Court was also invited to the fact
    that the vehicle in question falls in the category of ‘Heavy
    Goods Vehicle’ (HGV). The evidence in the nature of the FIR,
    the statement of the driver recorded before the investigating
    officer, the consignment note, the invoices etc., establishes
    the fact that the driver was carrying Hydrochloric Acid (HCL)

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    which is considered as hazardous chemical. He had therefore
    submitted that as on the date of the accident, the driver of the
    offending truck was not holding valid and effective driving
    license to drive heavy goods vehicle for carrying hazardous
    chemical for which according to him separate endorsement
    was required.

    6.2 Referring to the aforesaid evidence on record, learned
    advocate had further invited my attention to the record and
    proceedings, more particularly, the applications submitted by
    the insurance company before the Tribunal seeking presence
    of the driver as well as owner of the offending vehicle as
    produced on record at Exhs.28 and 29. The reliance was also
    placed on the Bailiff report which is forming part of the
    record, which suggest that the aforesaid summons have been
    duly served upon the driver of the vehicle. However, as
    regards the owner of the vehicle, the Bailiff though attempted
    the service of summons on three occasions, the same could
    not be served. Learned advocate had therefore submitted that
    the defence as raised in the written statement about not
    holding valid and effective driving license has been duly
    proved and established before the Tribunal. Despite the
    aforesaid evidence being brought on record, the Tribunal has
    held the appellant – insurance company liable to pay the
    amount of compensation. Hence, the present appeal
    disputing their liability to pay the amount of compensation.

    6.3 On the issue of quantum, learned advocate had mainly
    disputed the amount of Rs.4,000/- being assessed as the

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    income of the deceased. It was submitted that in absence of
    any evidence on record, the Tribunal had committed serious
    error in determining the income of the deceased as Rs.4,000/-.
    The quantum of compensation was also assailed on the ground
    of multiplier being wrongly applied in the facts of the case.
    Learned advocate had therefore urged this Court to quash and
    set aside the impugned judgment and award.

    6.4 In support of the aforesaid submissions made, learned
    advocate had placed reliance upon unreported decision of
    Division Bench of this Court in case of Mahmad Rafik
    Munnebhai Ansari Vs. Gujarat State Road Transport
    Corporation & Ors.
    in First Appeal no.3173 of 2021 and allied
    matters, oral order dated 24 th December, 2021.
    Also, reliance
    was placed on the decision of Hon’ble Supreme Court in the
    case of National Insurance Co. Ltd., Vs. Vidhyadhar
    Mahariwala & Ors.
    , reported in (2008) 12 SCC 701 and in the
    case of Ram Babu Tiwari Vs. United India Insurance Co. Ltd.,
    reported in (2008) 8 SCC 165.

    6.5 Learned advocate for the appellant – insurance company
    had therefore prayed for allowing the appeal by exonerating
    the appellant – insurance company from its liability to pay any
    amount of compensation to the claimant.

    7. Mr. Hakim, learned advocate for the respondent –
    claimant had vehemently objected to the aforesaid
    submissions of the learned advocate for the appellant –
    insurance company. Learned advocate had placed reliance

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    upon the findings and reasons assigned by the Tribunal while
    holding the appellant – insurance company jointly and
    severally liable to pay the amount of compensation, more
    particularly as recorded in para-13 of the impugned judgment.
    It was submitted that the Tribunal has rightly followed the
    principles laid down by the three Judges’ bench of the Hon’ble
    Supreme Court in case of National Insurance Company
    Limited Vs. Swaran Singh
    & ors., reported in 2004 (3) SCC

    297. It was submitted that the burden lies upon the insurance
    company to prove that the insured has committed a breach of
    contract of insurance as envisaged under sub-clause-(ii) of
    Clause-a of sub-section-2 of Section 149 of the M.V. Act. It is
    in those circumstances, the insurance company shall be
    entitled to realize the awarded amount from the owner or
    driver of the vehicle, as the case may be, in the execution of
    the same award considering the provisions of Section 165 and
    168 of the Act.

    7.1 As regards the submission made by the learned advocate
    for the appellant insurance company praying for exoneration
    from its liability to pay the amount of compensation, it was
    submitted that the present case does not fall in that category
    of exceptional cases as, considering the provisions of Section
    149(2)(a)
    , when a fraud or collusion is noticed between the
    victim and the owner of the vehicle or such fact is
    subsequently detected at a later stage, the Court may
    consider exonerating the insurance company from its liability
    to pay the amount of compensation.

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    7.2 Learned advocate had placed reliance upon various
    judgments of the Hon’ble Supreme Court, wherein despite the
    breach of policy condition, i.e. invalid driving license of the
    driver at the time of the accident, the Courts have time and
    again issued appropriate directions of “pay and recover”. The
    reliance was placed on the relevant observations made by the
    three Judges’ Bench judgment, more particularly in paragraph
    nos.41 to 44, 107 and 110 in the case of Swaran Singh
    (supra), the reliance was also placed on the judgment of the
    Hon’ble Supreme Court in the case of Jawahar Singh vs. Bala
    Jain
    reported in (2011) 6 SCC 425 [equivalent citation AIR
    2011 SC 2436]. Referring to the facts of the case, the learned
    advocate had submitted that it was a case where the minor,
    admittedly being an unlicensed driver, was held responsible
    for the accident. The primary legal contention was raised by
    the respondent – insurance company disputing their liability
    on the ground of breach of policy conditions. The Hon’ble
    Supreme Court upheld the decision of the Tribunal as well as
    the High Court holding the owner of the vehicle responsible
    for the accident.
    The Court, referred to the earlier decision in
    the case of Ishwar Chandra Vs. Oriental Insurance Company
    Ltd.
    , (2007) SCC 650, holding that if a driver lacks a valid
    license, the liability to pay compensation shifts to the owner of
    the vehicle, emphasizing the owner’s duty to prevent
    unauthorized usage. However, the Court held that the
    insurance company can recover compensation from the owner
    of the vehicle even in case if the driver is not holding any
    license, thus reinforcing the owner’s ultimate responsibility.

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    7.3 The reliance was also placed on the decision of the
    Hon’ble Supreme Court in the case of Shamanna Vs. The
    Divisional Manager
    , the Oriental Insurance Company Ltd.,
    reported in AIR 2018 SC 3726. According to the learned
    advocate, the Court had reaffirmed the principles laid down
    by
    the three Judges’ Bench in the case of Swaran Singh
    (supra). Inviting my attention to the facts of the case, it was
    pointed-out that the driver of the offending vehicle Jeep had
    no valid driving license at the time of the accident and since
    there was a violation of the terms of the insurance policy, the
    Tribunal had directed the insurance company to pay the
    compensation to the claimants and had further granted liberty
    to the insurance company to recover the same from the owner
    of the offending vehicle. Being aggrieved by the aforesaid
    directions, the insurance company had preferred an appeal
    before the High Court. At the same time, the claimants had
    also approached in appeal seeking enhancement of the
    amount of compensation. The High Court had allowed the
    appeal of the insurance company and had observed that such
    directions of “pay and recover” can only be issued by the
    Hon’ble Supreme Court considering the discretionary power
    conferred under Article 142 of the Constitution of India. In
    the absence of any such power being vested with the High
    Court or the Tribunal, the directions issued by the Tribunal to
    make payment of compensation at the first instance with
    liberty to recover the same were held to be without
    jurisdiction.
    The Hon’ble Supreme Court, considering the
    case of third-party risk in view of the decision in the case of
    Swaran Singh (supra), had held that the onus is always upon

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    the insurance company to prove that the driver had no valid
    driving license and there was a breach of policy conditions.
    Even in cases where the driver did not possess a valid driving
    license and there are breaches of policy conditions, “pay and
    recover” can be ordered in case of third-party risk.

    7.4 The reference was also made to the two Judges’ Bench
    judgment of the Hon’ble Supreme Court in the case of
    National Insurance Company Ltd., Vs. Parvathneni and
    another
    reported in (2009) 8 SCC 785, wherein the reference
    was made. The Court expressed reservations about directions
    of “pay and recover” even where insurance company was held
    not liable and doubted the correctness of such earlier
    decisions by resorting to special power conferred under
    Article 142 of the Constitution of India.
    The Court noted that
    since the reference has been disposed of keeping the question
    of law open, and since the principles laid down in the case of
    Swaran Singh (supra) hold the field, the Court had upheld the
    directions of the Tribunal with regard to pay and recover.

    7.5 Learned advocate had therefore submitted that
    considering the view expressed by the larger Bench headed by
    three Judges in the case of Swaran Singh (supra), the
    judgments relied upon by learned advocate for the appellant
    insurance company in the cases of Mahmad Rafik Munnebhai
    Ansari
    (supra), Vidhyadhar Mahariwala (supra), and Ram
    Babu Tiwari
    (supra), which are the cases decided in peculiar
    facts, does not lay down a binding precedent.

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    7.6 Learned advocate had further relied upon the judgment
    of the Division Bench of this High Court in the case of
    Subhashrao Anandrao Pawar Vs. Ashokbhai Bhikhabhai
    Makwana
    , 2021 (0) AIJEL-HC 243529, wherein this Court has
    reaffirmed the legal principles that mere absence or invalidity
    of a driving license does not absolve the insurance company
    from compensating a third-party claim unless it is proved that
    negligence was on the part of the insured to fulfill the policy
    conditions. It was further submitted that in fact, on bare
    appreciation of the provisions of the Motor Vehicles Act, 1988,
    more particularly Section 149(2)(a)(ii), the Court has uphold
    the arguments advanced by learned advocate as recorded in
    para 10. The Court has reiterated the principles laid down by
    the Hon’ble Supreme Court in the case of Swaran Singh
    (supra) and thereby set aside the directions issued by the
    Tribunal to recover the compensation from the owner of the
    vehicle.

    7.7 Learned advocate had also placed reliance upon a recent
    decision of the Hon’ble Supreme Court in the case of Chatha
    Service Station Vs. Lalmati Devi and others
    , AIR Online 2025
    SC 303. The attention of this Court was invited to the facts of
    the case wherein the accident had occurred due to the rash
    and negligent driving of the offending vehicle which was an oil
    tanker. It was submitted that the said vehicle was intended to
    carry goods of dangerous and hazardous nature. Admittedly,
    the driver of the offending vehicle did not have a license as
    required under the Act and the Rules to drive a vehicle
    carrying dangerous and hazardous goods. The Court upon

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    appreciation of record had noted that the transport vehicle
    driving license produced by the driver, did not have the
    requisite endorsement. Despite the aforesaid evidence on
    record, the Hon’ble Supreme Court had upheld the directions
    of the High Court holding the insurance company liable to pay
    compensation to the claimants with further liberty to recover
    such amount from the owner of the oil tanker.

    7.8 The reliance was placed on the decision of the larger
    Bench of this Court in the case of Shantaben wd/o. deceased
    Kantibhai Punjabhai Vankar Vs. Yakubbhai Ibrahimbhai Patel
    reported in 2012 (3) GLR 1985. It was submitted that the
    matter was referred to the larger Bench in view of two
    conflicting views taken by different division Benches of this
    Court. The issue had arose for consideration in light of the
    approach of the Tribunal as regards interpretation of Section-
    95
    of the Motor Vehicles Act, 1939, restricting the liability of
    the insurance company limited to the statutory liability as
    envisaged under the Act. The core contention which was
    raised by the claimant was that insurance policies in all cases
    contain an avoidance clause and provided that nothing in the
    policy shall affect the right of any person indemnified by the
    policy or any other person to recover an amount under or by
    virtue of the provisions of the Motor Vehicles Act. In fact, the
    aforesaid clause provided that the insured shall repay to the
    company all sums paid by the company which otherwise the
    company would not have been liable to pay, but in view of the
    said provisions of the Act, the insurance company is
    principally liable to satisfy the award irrespective of the

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    statutory limit. As against the aforesaid contention raised by
    the claimants, the learned counsel appearing for the
    insurance company had opposed the appeals mainly on the
    ground that the insurance policies in question were “Act
    policies” and the liability of the insurance company was thus
    restricted to Rs.50,000/-, the statutory limit prevailing at the
    relevant time.

    7.9 Learned advocate had further invited my attention to the
    avoidance clause appearing in the policy as reproduced in
    para 29 of the judgment. It was further submitted that a
    similar avoidance clause is also reflected in the policy in the
    present case. The larger bench upon appreciating the
    contents of the avoidance clause questioned that whether the
    insurance company could have avoid the indemnification of a
    third party to the full extent and claim their restricted liability
    in terms of the insurance policy under the statutory
    provisions. While answering to the aforesaid issue, the Court
    has taken into consideration the judgment of the Hon’ble
    Supreme Court in the cases of Amrit Lal Sood Vs. Kaushalya
    Devi Thapar
    , reported in (1998) 3 SCC 744, National
    Insurance Co. Ltd., Vs. Jugal Kishore
    , reported in (1988) 1
    SCC 626, and National India Assurance Co. Ltd., Vs. Shanti
    Bai
    reported in (1995) 2 SCC 539.
    The Hon’ble Supreme
    Court had in the case of Amrit Lal Sood (supra) taken a view
    that considering the avoidance clause, the insurance company
    was liable to meet the claim of the claimant and satisfy the
    award passed by the Tribunal.
    The larger bench had noted
    the relevant observations recorded in para-6 of the decision in

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    the case of New India Assurance Co. Ltd., Vs. C. M. Jaya and
    others
    , reported in (2002) 2 SCC 278, wherein the
    Constitution Bench had held that in a policy for limited
    liability, it was not open to the Court to direct the insurance
    company to make any payment beyond the amount of limited
    liability, but at the same time, it took note of the decision in
    the case of Amrit Lal Sood (supra) with approval. More
    particularly, noticing the avoidance clause in the policy which
    according to Court makes all difference, the directions of the
    High Court to the appellant insurance company to make
    payment of the full amount of compensation was upheld. The
    larger Bench therefore, after considering the issue in light of
    the observations made by the Hon’ble supreme Court in the
    case of New India Assurance Co. Ltd., Vs. Vimal Devi
    reported in (2010) 12 SCC 492 answered the reference by
    concluding that wherever the insurance policy contains an
    avoidance clause providing that nothing in the policy shall
    affect the right of any person indemnified by the policy or any
    other person by recovering amount under or by virtue of
    provisions of Motor Vehicles Act, the insurance company shall
    be liable to pay compensation.

    7.10 On the merits of the case, learned advocate had
    therefore submitted that the burden was upon the insurance
    company to prove that the driver of the offending vehicle was
    not holding any valid and effective driving license, that the
    insured was guilty or negligent and had failed to take due
    care before handing over the offending vehicle to the driver.
    Considering the evidence on record, according to learned

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    advocate, merely producing the extract of driving license on
    record is not sufficient to exonerate the appellant – insurance
    company from its liability to pay the amount of compensation
    in absence of the driver or the owner of the offending vehicle
    being examined as witness. Learned advocate had therefore
    prayed for dismissal of the appeal preferred by the appellant –
    insurance company.

    8. On the quantum of compensation, learned advocate had
    assailed the findings and reasons assigned by the Tribunal by
    contending that the Tribunal committed grave error in
    assessing the income of the deceased as Rs.4,000/- per month.
    It was submitted that considering the vocation of the
    deceased who was earning his livelihood of Rs.10,000/- per
    month by doing idol making work, the Tribunal ought to have
    treated it as a case of skilled person. In order to substantiate
    his claim, learned advocate had placed reliance upon the copy
    of receipts of purchase of raw material being produced for the
    purpose of making of the idol at Exh.37. The reliance was
    also placed on the evidence of the witness examined by the
    claimant in this regard. Learned advocate had prayed for the
    income of the deceased to be assessed as Rs.10,000/- per
    month. Alternatively, it was submitted that considering the
    skills of the deceased, this Court may consider minimum
    wages of a skilled labourer prevailing at the time of accident
    for the determination of just and reasonable amount of
    compensation. It was submitted that fair amount of Rs.4,210/-
    may alternatively be considered as the income of the deceased
    at the time of accident.

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    8.1 It was further submitted that the deceased was aged 49
    years and 8 months at the time of the accident. Considering
    the landmark decision of the Hon’ble Supreme Court in the
    case of National Insurance Company Ltd., Vs. Pranay Sethi
    and others
    reported in (2017) 16 SCC 680, 25% future rise in
    the income is required to be considered for the purpose of
    determination of dependency loss suffered by the claimants.
    According to him, the Tribunal has committed error in
    deducting 1/4th of the amount of income towards personal and
    living expenses of the deceased. Though the ground was
    raised by contending that the Tribunal has committed error in
    adopting multiplier of 13 in the facts of the case, however
    considering the well settled principles laid down in the case of
    Sarla Verma & Ors. Vs. Delhi Transportation & Anr., reported
    in (2009) 6 Supreme Court Cases 121, he had fairly conceded
    to apply multiplier of 13, in the facts of the case.

    8.2 Learned advocate has lastly urged this Court to consider
    enhancement of amount of compensation under the
    conventional heads as well in view of the settled principles
    and propositions of law in this regard. Learned advocate had
    therefore urged this Court to allow the cross objections by
    enhancing the amount of compensation which may be
    awarded with 9% interest from the date of filing of claim
    petition till its actual realization with proportionate cost.

    9. Learned advocate for the insurance company has
    objected to the aforesaid submissions made by learned

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    advocate for the claimant praying for enhancement of amount
    of compensation. According to learned advocate, considering
    the findings and reasons assigned by the Tribunal in light of
    the evidence on record, the Tribunal has rightly answered the
    issue of quantum of compensation which calls for no
    interference. Learned advocate had therefore prayed for
    dismissal of the cross objections.

    10. I have heard the learned advocates appearing for the
    respective parties at length. I have also closely examined the
    findings and reasons assigned by the Tribunal on the issue of
    quantum of compensation and the liability of the insurance
    company in light of the evidence brought on record. I have
    carefully considered the various judgments relied upon by
    learned advocates appearing for the respective parties.

    11. Considering the arguments made by learned advocates
    for the respective parties, the question which arises for
    consideration of this Court is as to whether the Tribunal
    committed any error in deciding the issue of quantum of
    compensation and the liability of the insurance company to
    pay the amount of compensation to the claimants in the facts
    of the case and the evidence on record, while examining the
    claim petition under Section 166 of the Act of 1988?

    12. Before adverting to the merits of the case, it would be
    appropriate to consider the manner in which the accident was
    reported.

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    13. From the record it transpires that on 9th June, 2010 the
    deceased Maheshbhai Ramanbhai Prajapati was traveling in a
    three-wheeler tempo along with his goods, mainly the
    material required for making the idols of the God. While he
    was traveling towards Miyagam and when he had reached
    near the place at Miyagam, the driver of the offending vehicle,
    i.e. tanker bearing registration no.GJ-6 TT 9717, had
    approached in full speed in rash and negligent manner on the
    wrong side of the road and had dashed with the tempo
    resulting into the accident. Because of the aforesaid impact
    between the two vehicles the deceased had succumbed to the
    injuries on the spot. The aforesaid incident was reported to
    the Vadodara Rural Police Station which was registered as I-
    C.R. no.86 of 2010 against the driver of the offending vehicle
    tanker. The claimants, viz. the wife of the deceased, his aged
    parents as well as his major sons, have preferred claim
    petition under section 166 of the Motor Vehicles Act, 1988
    praying for compensation of Rs.12,00,000/- with interest and
    proportionate cost. The said claim petition was registered as
    MACP no.1011 of 2010 before the Motor Accident Claim
    Tribunal (Aux.) at Vadodara.

    13.1 Before the Tribunal, the summons were duly served
    upon the driver and the owner of the offending vehicle tanker,
    however they have chose not to appear and contest the claim
    petition. The insurance company of the offending vehicle was
    joined as opponent no.3 who have objected to the claim
    petition by filing their written statement at Exh.11. In the
    written statement the insurance company had not only

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    disputed the negligence on part of the driver of the tanker but
    have also disputed their liability to pay the amount of
    compensation by contending that the driver of the offending
    vehicle was not holding a valid and effective driving license at
    the time of accident and further he was not qualified for
    holding or obtaining driving license. It was further submitted
    that the driver had contravened the statutory provisions of the
    Motor Vehicle Act and the Rules framed thereunder and the
    owner of the vehicle having committed the breach of the
    terms and conditions of the policy, the insurance company
    shall not be liable to pay any amount of compensation.

    13.2 Considering the pleadings, the Tribunal had framed the
    issues at Exh.17, which reads as under :

    1. Whether the petitioners prove that deceased died
    in a vehicular accident due to negligent driving by
    the driver of vehicle involved in the accident?

    2. Whether the petitioners are entitled to get any
    compensation? If yes, what amount and from
    whom?

    3. What order and award.

    13.3 Before the claim Tribunal the claimants have produced
    oral as well as documentary evidence in support of their
    claim, the details of which are reproduced hereunder in
    tabular form.

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    ~:: Documentary Evidence ::~

    Sr. Description Exh.

    no.

    1. Xerox copy of R.C. Book of vehicle 34

    no.GJ.6.TT.9717
    2. Xerox copy of chargesheet 35
    3. True copy of insurance policy of vehicle 36
    no.GJ.6.TT.9717
    4. Bills of Venus Plaster Industries 37
    5. Xerox copy of S.L.C. of deceased 38

    6. Certificate pertaining to driving license 39
    of opponent no.1 – Parmar Nansing
    7. Certified of copy of complaint 46
    8. Certified of copy of panchnama 47
    9. Copy of P.M. Note 48
    10. Xerox copy of R.C. book of Vehicle 50
    no.GJ.6.TT.9717
    11. Copy of driving license of Nansing 51
    Parmar
    12. Xerox copy of identity card of claimant 52
    no.1
    13. Xerox copy of identity card of claimant 53
    no.2
    14. Xerox copy of identity card of claimant 54
    no.3
    15. Xerox copy of identity card of claimant 55
    no.4
    16. Xerox copy of identity card of claimant 56
    no.5
    17. True copies of police papers relating to 57
    chargesheet

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    13.4 As against the aforesaid evidence led by the claimants,
    the insurance company had preferred applications at Exh.27
    and Exh.28 seeking permission of the Tribunal to examine the
    driver and the owner of the tanker as witnesses. The prayer
    was also made with regard to production of relevant
    documents, more particularly the set of entire record of
    charge-sheet papers, the extract of the driving license.
    Considering the aforesaid prayer, the Tribunal had issued
    summons upon the said witnesses. The record reveals that
    the summons issued upon the driver of the tanker has been
    duly served as per Bailiff’s report, however the attempts made
    to serve the owner of the vehicle had failed as reported by the
    Bailiff.

    13.5 The insurance company had also led documentary
    evidence along with the list produced on record at Exh.26,
    which mainly include the certificate issued by the RTO office
    as regards the driving license in the name of the opponent
    no.1 (Exh.39), the statement of the driver of the tanker
    recorded by the investigating officer (Exh.40), the extract of
    the consignment note acknowledging the fact that the tanker
    was carrying hazardous goods in the nature of hydrochloric
    acid (Exh.41) and the invoice copy of the tanker reflecting the
    hazardous good carried by the vehicle at the time of accident
    (Exh.42).

    13.6 The Tribunal upon appreciation of the entire evidence on
    record in light of the arguments made by learned advocates
    for the respective parties had held the driver of the tanker

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    negligent towards the occurrence of accident.

    13.7 On the issue of quantum of compensation, the Tribunal
    had determined the monthly income of the deceased as
    Rs.4,000/- in absence of any direct proof of income being
    produced on record thereby discarding the bills of purchase of
    raw material produced on record at Exh.37. Further, the
    Tribunal has considered the school leaving certificate
    produced on record at Exh.38 indicating the date of birth of
    the deceased as 7th October, 1960 and has accordingly
    determined the age of the deceased as 50 years at the time of
    accident. Having noted the aforesaid facts, Tribunal has
    further followed the principle laid down by the Hon’ble
    Supreme Court in the case of Rajesh and others Vs.
    Rajbirsingh and others reported in 2013 ACJ 1403 as well as
    in the case of Sarla Verma (supra) and has extended 15%
    future rise of the income and by applying multiplier of 13 and
    deduction of 1/4th of the income, determined the dependency
    loss as Rs.5,38,200/-. Under the conventional heads, the
    Tribunal has awarded Rs.10,000/- towards loss of consortium
    and towards loss of estate each whereas Rs.5,000/- has been
    awarded towards funeral expenses. The Tribunal has thus by
    impugned judgment and award determined total amount of
    compensation as Rs.5,63,200/-.

    13.8 On the issue of liability, the Tribunal has considered the
    defense raised by the insurance company disputing their
    liability to pay any amount of compensation on the ground of
    absence of valid driving license by following the judgments of

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    the Hon’ble Supreme Court, has held that since the driver of
    the tanker was solely negligent towards the occurrence of
    accident and the policy being in force, the tanker was insured
    with the opponent insurance company at the time of accident
    and has thereby directed the opponent insurance company to
    indemnify the insured i.e. opponent no.2. Thus, the Tribunal
    by impugned judgment and award has held the original
    opponent nos.1, 2, 3 jointly and severally liable to pay the
    aforesaid amount of compensation with proportionate cost
    and interest at the rate of 9% per annum from the date of
    filing of claim petition till its realization.

    14. Having noted the aforesaid findings and reasons
    assigned by the Tribunal and having reappreciated the
    evidence on record in light of the arguments advanced by
    learned advocate for the respective parties, it would be
    appropriate at the outset to look into the core contention
    raised by the appellant insurance company in its appeal on the
    issue of liability. The main ground which is raised by the
    appellant insurance company disputing their liability is on the
    premises that the driver of the tanker was not holding valid
    effective driving license to drive the vehicle, more particularly
    carrying the goods which was a hazardous chemical. I have
    carefully considered the aforesaid arguments advanced by
    learned advocate for the appellant insurance company in light
    of the evidence on record, more particularly the certificate
    issued by the RTO office Godhra as produced on record at
    Exh.36 and Exh.39 as well as the extract of the driving license
    produced on record at Exh.51. On close perusal of the

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    aforesaid documentary evidence, as rightly pointed-out by
    learned advocate for the appellant – insurance company, the
    driver of the tanker was authorized to drive the tanker during
    period 10th March, 1995 to 9th March, 1998 which was
    thereafter renewed from 9th September, 2001 to 9th
    September, 2004. Despite service of summons to the driver
    and the owner of the vehicle before the Tribunal, they have
    choose not to appear and led any evidence. In view of the
    settled principles laid down by the Hon’ble Supreme Court in
    the case of Swaran Singh (supra), undoubtedly the defense is
    available to the insurance company under section 149(2)(a)(ii)
    of the Motor Vehicle Act, 1988, to take a plea that the
    offending vehicle was driven by an unauthorized person and
    the driver did not hold a valid driving license. Considering the
    summary findings as recorded in para-110 of the aforesaid
    decision, the onus would shift on the insurance company only
    after the owner of the offending vehicle pleads and proves the
    basic facts within his knowledge that the driver of the
    offending vehicle was authorized by him to drive the vehicle
    and was having a valid driving license at the relevant time. As
    recorded earlier, and as evident from the record, the
    appellant insurance company in absence of the driver and the
    owner of the vehicle having appeared before the Tribunal, has
    placed on record along with the list at Exh.26, the documents
    in the nature of the certificate issued by the RTO office which
    clearly suggest that the driver of the tanker was holding the
    driving license to drive the tanker and such driving license
    had remained in force till 9 th September, 2004. In absence of
    any further document reflecting the renewal of the aforesaid

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    driving license, the defense raised by the insurance company
    that the driver of the tanker was not holding driving license at
    the relevant time stands established.

    15. As regards the contention raised by learned advocate for
    the appellant insurance company of absence of the requisite
    permit with regard to driving the tanker carrying hazardous
    goods is concerned, the extract of the driving license does
    reflect the necessary endorsement in this regard. Having held
    so, the next issue which arises for consideration of this Court
    is as to whether in the fact situation of this case, the
    insurance company can be exonerated from its liability to pay
    the compensation or whether the insurance company can be
    directed to pay the amount of compensation at first instance
    with liberty to recover the same from the owner of the
    vehicle?

    16. Considering the various authorities relied upon by
    learned advocates for the respective parties, in my view, the
    legal issue involved is no more res integra in view of the
    landmark decision of three Judges Bench of the Hon’ble
    Supreme Court in the case of Swaran Singh (supra). It would
    be appropriate to revisit the relevant observations of the
    Hon’ble Supreme Court in this regard.

    “107. We may, however, hasten to add that the
    Tribunal and the court must, however, exercise their
    jurisdiction to issue such a direction upon
    consideration of the facts and circumstances of each
    case and in the event such a direction has been issued
    despite arriving at a finding of fact to the effect that

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    the insurer has been able to establish that the insured
    has committed a breach of contract of insurance as
    envisaged under sub-clause (ii) of clause (a) of sub-
    section (2) of Section 149 of the Act, the insurance
    company shall be entitled to realise the awarded
    amount from the owner or driver of the vehicle, as the
    case may be, in execution of the same award having
    regard to the provisions of Section 165 and 168 of the
    Act . However, in the event, having regard to the
    limited scope of inquiry in the proceedings before the
    Tribunal it had not been able to do so, the insurance
    company may initiate a separate action therefor
    against the owner or the driver of the vehicle or both,
    as the case may be. Those exceptional cases may arise
    when the evidence becomes available to or comes to
    the notice of the insurer at a subsequent stage or for
    one reason or the other, the insurer was not given
    opportunity to defend at all. Such a course of action
    may also be resorted when a fraud or collusion
    between the victim and the owner of the vehicle is
    detected or comes to the knowledge of the insurer at
    a later stage.

    110. The summary of our findings to the various
    issues as raised in these petitions are as follows:

    (i) Chapter XI of the Motor Vehicles Act,
    1988
    providing compulsory insurance of
    vehicles against third party risks is a social
    welfare legislation to extend relief by
    compensation to victims of accidents caused
    by use of motor vehicles. The provisions of
    compulsory insurance coverage of all
    vehicles are with this paramount object and
    the provisions of the Act have to be so
    interpreted as to effectuate the said object.

    (ii) Insurer is entitled to raise a defence in
    a claim petition filed under Section 163 A or
    Section 166 of the Motor Vehicles Act, 1988
    inter alia in terms of Section 149(2)(a)(ii) of
    the said Act.

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    (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.

    (iv) The insurance companies are, however,
    with a view to avoid their liability must not
    only establish the available defence(s) raised
    in the said proceedings but must also
    establish ‘breach’ on the part of the owner of
    the vehicle; the burden of proof wherefor
    would be on them.

    (v) The court cannot lay down any criteria
    as to how said burden would be discharged,
    inasmuch as the same would depend upon
    the facts and circumstance of each case.

    (vi) Even where the insurer is able to prove
    breach on the part of the insured concerning
    the policy condition regarding holding of a
    valid licence by the driver or his qualification
    to drive during the relevant period, the
    insurer would not be allowed to avoid its
    liability towards insured unless the said
    breach or breaches on the condition of
    driving licence is/ are so fundamental as are
    found to have contributed to the cause of the
    accident. The Tribunals in interpreting the

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    policy conditions would apply “the rule of
    main purpose” and the concept of
    “fundamental breach” to allow defences
    available to the insured under section 149(2)
    of the Act.

    (vii) The question as to whether the owner
    has taken reasonable care to find out as to
    whether the driving licence produced by the
    driver, (a fake one or otherwise), does not
    fulfil the requirements of law or not will have
    to be determined in each case.

    (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.

    (ix) The claims tribunal constituted under
    Section 165 read with Section 168 is
    empowered to adjudicate all claims in
    respect of the accidents involving death or of
    bodily injury or damage to property of third
    party arising in use of motor vehicle. The
    said power of the tribunal is not restricted to
    decide the claims inter se between claimant
    or claimants on one side and insured, insurer
    and driver on the other. In the course of
    adjudicating the claim for compensation and
    to decide the availability of defence or
    defences to the insurer, the Tribunal has
    necessarily the power and jurisdiction to
    decide disputes inter se between insurer and
    the insured. The decision rendered on the
    claims and disputes inter se between the
    insurer and insured in the course of
    adjudication of claim for compensation by the
    claimants and the award made thereon is
    enforceable and executable in the same
    manner as provided in Section 174 of the Act
    for enforcement and execution of the award
    in favour of the claimants.

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    (x) Where on adjudication of the claim
    under the Act the tribunal arrives at a
    conclusion that the insurer has satisfactorily
    proved its defence in accordance with the
    provisions of section 149(2) read with sub-
    section (7), as interpreted by this Court
    above, the Tribunal can direct that the
    insurer is liable to be reimbursed by the
    insured for the compensation and other
    amounts which it has been compelled to pay
    to the third party under the award of the
    tribunal. Such determination of claim by the
    Tribunal will be enforceable and the money
    found due to the insurer from the insured
    will be recoverable on a certificate issued by
    the tribunal to the Collector in the same
    manner under Section 174 of the Act as
    arrears of land revenue. The certificate will
    be issued for the recovery as arrears of land
    revenue only if, as required by sub-section
    (3) of Section 168 of the Act the insured fails
    to deposit the amount awarded in favour of
    the insurer within thirty days from the date
    of announcement of the award by the
    tribunal.

    (xi) The provisions contained in sub-section
    (4) with proviso thereunder and sub-section
    (5) which are intended to cover specified
    contingencies mentioned therein to enable
    the insurer to recover amount paid under the
    contract of insurance on behalf of the insured
    can be taken recourse of by the Tribunal and
    be extended to claims and defences of
    insurer against insured by relegating them to
    the remedy before regular court in cases
    where on given facts and circumstances
    adjudication of their claims inter se might
    delay the adjudication of the claims of the
    victims.”

    17. Having noted the aforesaid principles laid down by the

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    Hon’ble Supreme Court, the aforesaid principles has been
    followed later on in the subsequent decision, more
    particularly the three Judges Bench in the case of Pappu and
    others Vs. Vinod Kumar Lamba and another reported in
    (2018) 3 SCC 208. The Court has reiterated the principles
    laid down in the case of Swaran Singh (supra) holding thereby
    that though the insurance company is entitled to take a
    defense that offending vehicle was driven by unauthorized
    person or that the person driving the vehicle did not have a
    valid driving license, however, as regards third party
    insurance vis-a-vis liability of insurance company is
    concerned, the insurance company cannot escape its liability.
    The Court has considered sub Section-2 of Section 149 of the
    Act, 1988. On facts of the case, the Court observed that the
    insurance company had succeeded in establishing its defense
    of unauthorized driver with invalid license.
    However,
    applying the principles laid down in the case of Swaran Singh
    (supra) in order to subserve the ends of justice, directed the
    insurance company to pay the amount of compensation to the
    claimants at first instance with liberty to recover the same
    from the owner of the vehicle in accordance with law.

    18. Having noted the aforesaid decisions even in case of
    breach of policy conditions, more particularly the
    disqualification of driver or invalid driving licence of the
    driver as contained in sub Section-2(a)(ii) of Section 149, such
    defence is though available to the insurer against the insured,
    may not be a ground to avoid liability towards third parties.
    At this stage, it would be appropriate to note that the

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    insurance policy produced on record at Exh.49 indicates that
    insurance company has agreed for the avoidance clause being
    incorporated in the policy. It is mentioned that the “insured
    is not indemnified, if the vehicle is used or driven otherwise
    than in accordance with the schedule. Any payment made by
    the company by reason of wider terms appearing in the
    certificate in order to comply with the Motor Vehicle Act,
    1988
    is recoverable from the insured”. See clause added
    “avoidance of certain terms and right of recovery.”

    19. The similar avoidance clause fell for consideration
    before the larger Bench of this Court in the case of Shantaben
    (supra). The Court was considering the issue of liability of
    insurance company in light of the provisions of Section 95 of
    the old Motor Vehicle Act, 1939. More particularly, the extent
    of liability in third party policy whether in case where in the
    insurance policy avoidance clause has been incorporated to
    the effect that nothing in policy should affect the right of any
    person indemnified by policy or any other person to recover
    amount under or by virtue of provisions of the act. In such
    circumstances, whether insurance company could have
    pressed in service the limit of statutory liability under the act
    and could have avoid satisfying the award insofar as claimants
    were concerned? The larger Bench having appreciated the
    terms and conditions of the policy as well as the provisions of
    law, has noted that though the Court is not required to go into
    the question with regard to the principle of “pay and recover”

    in the set of appeals, the Court was of the view that in view of
    the decision of the Hon’ble Supreme Court in the case of Jugal

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    Kishore (supra), holding that liability of insurance company
    would be limited as well as in the case of New Asiatic
    Insurance Company Ltd., Vs. Pessumal Dhanamal Aswani

    reported in AIR 1964 SC 1736, holding that even in case of
    avoidance clause the liability of insurance company which was
    otherwise limited would not become unlimited, the Court
    noted that there was a similar avoidance clause appearing in
    the policy and therefore considering the judgment of Hon’ble
    Supreme Court in the case of Amrit Lal Sood (supra), such
    avoidance clause does not enable the insurance company to
    resist or avoid claim made by the claimant. Such clause was
    to be considered only in a dispute between the insurer and
    insured. Thus, considering the decisions in the cases of Amrit
    Lal Sood
    (supra), Jugal Kishore (supra) and Shanti Bai (supra),
    which has been considered later on in the case of C.M. Jaya
    (supra).
    The Court further took into consideration the relevant
    observations made in C.M. Jaya (supra), and concluded as
    under :

    “(33) The decisions in the cases of Amrit Lal Sood
    (supra), Jugal Kishore (supra) and Shanti Bai (supra) all
    came up for consideration before the Apex Court in the
    case of C.M.Jaya (supra). The appeals were placed
    before the Larger Bench of five Judges referring
    following questions :

    “1. The question involved in these appeals is
    whether in a case of insurance policy not taking
    any higher liability by accepting a higher
    premium, in case of payment of compensation to
    a third party, the insurer would be liable to the
    extent limited under Section 95 (2) or the insurer
    would be liable to pay the entire amount and he

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    may ultimately recover from the insured. On this
    question, there appears to be some apparent
    conflict in the two three Judge Bench decisions of
    this Court (1) New India Assurance Co. Ltd. v.
    Shanti Bai
    , ((1995) 2 SCC 539) and (2) Amrit Lal
    Sood v. Kaushalya Devi Thapar
    ((1998) 3 SCC

    744).

    2. In the latter decision, unfortunately the
    decision in New India Assurance case (supra) has
    not been noticed though reference has been made
    to the decision of this Court in National Insurance
    Co. Ltd. v. Jugal Kishore
    , ((1988) 1 SCC 626),
    which was relied upon in the earlier threeJudge
    Bench judgment. In view of the apparent conflict
    in these two three Judge Bench decisions, we
    think it appropriate that the records of this case
    may be placed before my Lord, the Chief Justice
    of India to constitute a larger Bench for resolving
    the conflict. We accordingly so direct. The record
    may now be placed before the Hon’ble the Chief
    Justice of India.”

    (34) The Apex Court drew a distinction between two
    sets of cases, one represented by Jugal Kishore and
    Shanti Bai and another by Amrit Lal Sood. The Apex
    Court observed as under:

    “9. In Shanti Bai‘s case (supra), a Bench of
    three learned Judges of this Court, following the
    case of Jugal Kishore, has held that (i) a
    comprehensive policy which has been issued on
    the basis of the estimated value of the vehicle
    does not automatically result in covering the
    liability with regard to third party risk for an
    amount higher than the statutory limit,(ii) that
    even though it is not permissible to use a vehicle
    unless it is covered at least under an “Act only”

    policy, it is not obligatory for the owner of a
    vehicle to get it comprehensively insured, and

    (iii) that the limit of liability with regard to third

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    party risk does not become unlimited or higher
    than the statutory liability in the absence of
    specific agreement to make the insurer’s liability
    unlimited or higher than the statutory liability.

    10. On a careful reading and analysis of the
    decision in Amrit Lal Sood (supra), it is clear that
    the view taken by the Court is no different. In
    this decision also, the case of Jugal Kishore is
    referred to. It is held (i) that the liability of the
    insurer epends on the terms of the contract
    between the insured and the insurer contained in
    the policy; (ii) there is no prohibition for an
    insured from entering into a contract of
    insurance covering a risk wider than the
    minimum requirement of the statute whereby
    risk to the gratuitous passenger could also be
    covered; and (iii) in such cases where the policy
    is not merely statutory policy, the terms of the
    policy have to be considered to determine the
    liability of the insurer. Hence the Court aftrer
    noticing the relevant clauses in the policy, on
    facts found that under Section II1(a) of the
    policy, the insurer has agreed to indemnify the
    insured against all sums which the insured shall
    become legally liable to pay in respect of death
    of or bodily injury to “any person”.
    The
    expression “any person” would undoubtedly
    include an occupant of the car who is
    gratuitously travelling in it. Further, referring to
    the case of Pushpabai Purshottam Udeshi
    (supra), it was observed that the said decision
    was based upon the relevant clause in the
    insurance policy in that case which restricted the
    legal liability of the insurer to the statutory
    requirement under Section 95 of the Act. As
    such, that decision had no bearing on Amrit Lal
    Sood
    ‘s case as the terms of the policy were wide
    enough to cover a gratuitous occupant of the
    vehicle.
    Thus, it is clear that the specific clause
    in the policy being wider, covering higher risk,

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    made all the difference in Amrit Lal Sood‘s case
    as to unlimited or higher liability. The Court
    decided that case in the light of the specific
    clause contained in the policy. The said decision
    cannot be read as laying down that even though
    the liability of the insurance company is limited
    to the statutory requirement, an unlimited or
    higher liability can be imposed on it. The liability
    could be statutory or contractual. A statutory
    liability cannot be more than what is required
    under the statute itself. However, there is
    nothing in Section 95 of the Act prohibiting the
    parties from contracting to create unlimited or
    higher liability to cover wider risk. In such an
    event, the insurer is bound by the terms of the
    contract as specified in the policy in regard to
    unlimited or higher liability as the case may be.
    In the absence of such a term or clause in the
    policy, pursuant to the contract of insurance, a
    limited statutory liability cannot be expanded to
    make it unlimited or higher. If it is so done, it
    amounts to rewriting the statute or the contract
    of insurance which is not permissible.

    11. In the light of what is stated above, we
    do not find any conflict on the question raised in
    the order of reference between the decisions of
    two Benches of three learned Judges in Shanti
    Bai and Amrit Lal Sood aforementioned and, on
    the other hand, there is consistency on the point
    that in case of an insurance policy not taking any
    higher liability by accepting a higher premium,
    the liability of the insurance company is neither
    unlimited nor higher than the statutory liability
    fixed under Section 95(2) of the Act. In Amrit Lal
    Sood
    ‘s case, the decision in Shanti Bai is not
    noticed. However, both these decisions refer to
    the case of Jugal Kishore and no contrary view is
    expressed.”

    (35) From the above noted portion of the decision in

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    the case of C.M.Jaya (supra), it can be seen that the
    Apex Court did not find that in the decisions in the
    cases of Shanti Bai and Amrit Lal Sood any contrary
    views are expressed. It was observed that the case of
    Amrit Lal Sood was decided in light of the specific
    clause contained in the policy.

    (36) These decisions in the case of Amrit Lal Sood,
    C.M.Jaya were considered by a Division Bench of this
    Court in the case of Firdoz Pervez Mysorewala (supra)
    in light of the avoidance clause contained in the
    insurance policy. The plea of the Insurance Company
    that the decision in the case of Amrit Lal Sood has been
    overruled by five Judges Constitution Bench of the
    Supreme Court in the case of C.M.Jaya (supra) was
    negatived. It was observed as under :

    “The above paragraphs quoted from the decision
    of the Constitution Bench would indicate that the
    judgment in Amrit Lal Sood (supra) is not
    overruled at all.
    Further, five Judge Constitution
    Bench had no occasion to consider the avoidance
    clause in the insurance policy which is considered
    in Amrit Lal Sood (supra) and Oriental Insurance
    Co.Ltd. (supra). Applying the principles laid down
    in
    the above referred to two decisions of the
    Supreme Court to the facts of the present case
    and more particularly to the terms and conditions
    stipulated in the insurance policy Exh.51, this
    Court is of the opinion that though the liability of
    the Insurance Company is limited to the extent of
    Rs.50,000/ (Rupees Fifty Thousand) only, the
    Insurance Company is liable to pay the entire
    award amount to the claimant and upon making
    such payment, the Insurance Company can
    recover the excess amount from the insured by
    executing the award against the insured to the
    extent of such excess amount as per Section 96(4)
    of the Motor Vehicles Act, 1939.”

    (37) Our task of culling the ratio in the case of Amrit

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    Lal Sood (supra) and the effect of the subsequent
    decisions in the case of C.M.Jaya (supra) however, has
    been considerably simplified by a later decision in the
    case of New India Assurance Co. Ltd. v. Vimal Devi,
    2010 ACJ 2878. It was a case wherein the Insurance
    Company had appealed to the Supreme Court. The
    High Court had accepted the limited liability of the
    Insurance Company to the extent of Rs.50,000/, but still
    directed it to pay the entire amount along with interest
    to claimants and then to recover the amount beyond the
    liability of Rs.50,000/ from the owner of the vehicle
    involved in the accident. The policy under consideration
    in the said case also contained an avoidance clause
    which read as under:

    “Avoidance of certain terms and right of
    recovery. Nothing in this policy or any
    endorsement hereon shall affect the right of any
    person indemnified by this Policy or any other
    erson to recover an amount under or by virtue of
    the provisions of the Motor Vehicles Act, 1939,
    Section 96. But the insured shall repay to the
    Company all sums paid by the Company which
    the Company would not have been liable to pay
    but for the said provisions.”

    (38) The Apex Court relying on the decision in the
    case of Amrit Lal Sood (supra) held that in view of
    avoidance clause, the Insurance Company would be
    liable to meet the claim of the claimant and satisfy the
    award passed by the Tribunal.
    The decision in the case
    of C.M.Jaya (supra) was noticed by the Apex Court in
    the said decision and it was observed as under:

    “6.Mr.Calla further submitted that in C.M.Jaya,
    2002 ACJ 271 (SC), a Constitution Bench of this
    court indeed held that in a policy for limited
    liability it was not open to the court to direct the
    insurance company to make any payment beyond
    the amount of the limited liability but it took note
    of the decision in Amrit Lal Sood, 1998 ACJ 531

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    (SC) with approval. He referred to paras 8 and

    12 of the judgment in C.M.Jaya (supra) where
    the decision in Amrit Lal Sood (supra) is noticed
    with approval.

    7. The avoidance clause in the policy in this case
    makes all the difference and the direction of the
    High Court to the appellant insurance company
    to make payment of the full amount of
    compensation to the claimants and to recover its
    due from the owner of the vehicle is directly in
    accordance with that clause. In our view, the
    submission of Mr.Calla is well founded. The
    appellant in this case can derive no benefit from
    the decision in C.M.Jaya, 2002 ACJ 271 (SC).”

    (39) In view of the above pronouncement of the Apex
    Court, we have no hesitation in holding that in face of
    avoidance clause contained in the insurance policy, the
    Insurance Company despite its limited liability must in
    so far as third party is concerned, satisfy the entire
    award of the Claims Tribunal. The Insurance Company,
    of course, would be entitled to recover the amount in
    excess of Rs.50,000/ which is the statutory limit of
    liability, from the owner of the vehicle insured which
    was involved in the accident.”

    20. Considering the aforesaid principles in the facts of the
    case on hand, and having appreciated the similar avoidance
    clause appearing in the policy produced on record at Exh.36
    (Exh.49), I have no hesitation in holding that despite there
    being breach of the vital term and condition of the policy as
    proved by the insurance company in absence of any ground of
    fraud being involved, the insurance company is liable to
    satisfy the amount of compensation at first instance insofar as
    third party like claimants are concerned. In view of the
    avoidance clause read with the third party risk covered as

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    contained in the insurance policy, which is ‘standard
    commercial vehicle package policy’ the insurance company is
    bound to satisfy the entire award amount to the claimants at
    first instance with liberty to recover such amount of
    compensation from the owner of the vehicle insured, which
    was involved in the accident.

    21. Having held so, as regards the quantum of compensation
    is concerned, the core contention of the claimant which is
    required to be dealt with at the outset is the income of the
    deceased being determined on lower side. On appreciation of
    the evidence of the claimant no.1 whose deposition has been
    recorded at Exh.20 and having appreciated the bills of Venus
    Plaster Industries produced on record at Exh.38, undoubtedly
    the claimant have established the case that the deceased was
    earning his livelihood by doing making of idols. However,
    there is no direct proof of any income of Rs.10,000/- being
    produced on record to accept the case of the claimant for
    determining the income as Rs.10,000/-. In absence of any
    proof of income being produced on record, this Court is
    inclined to consider the case of the claimant based on the
    minimum wages prevailing at the time of accident.
    Indisputably, the accident has taken place on 9 th June, 2010
    considering the rates of minimum wages notified in the State
    of Gujarat during the aforesaid period, it would be
    appropriate to fix the income of the deceased as Rs.4,210/-
    per month considering the nature of the work of the deceased
    as that of skilled labourer.

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    22. The age of the deceased has been proved by the
    claimant as 50 years at the time of accident which is fixed by
    the Tribunal based on the documentary evidence in the nature
    of school leaving certificate produced on record at Exh.38,
    wherein the date of birth of the deceased is reflected as 7 th
    October, 1960. Admittedly, the claimants includes the widow
    of the deceased, both aged parents and two major sons of the
    deceased. Thus, the deceased being survived by 5 dependents
    in the family, the Tribunal has rightly considered 1/4 th
    deduction towards the personal and living expenses of the
    deceased bearing in mind the well settled principles laid down
    in
    this regard in the case of Sarla Verma (supra).

    23. This brings me to the future rise of income to be
    considered for the purpose of determination of dependency
    loss in light of well settled principles laid down in the
    landmark decision of Hon’ble Supreme Court in the case of
    Pranay Sethi (supra). Considering the fact that the deceased
    was self employed, as rightly submitted by learned advocate
    for the claimant, it would be appropriate to consider 25%
    towards future rise of the established income.

    24. So far as the multiplier of 13 being applied by the
    Tribunal considering the fact that the age of the deceased will
    fall in the age group of 46 to 50 years, in view of the
    guidelines issued by the Hon’ble Supreme Court in the case of
    Sarla Verma (supra), the Tribunal has rightly applied the
    multiplier of 13. Considering the aforesaid components, the
    dependency benefit is thus redetermined as Rs.4,210 x 25% =

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    Rs.1,053 + Rs.4,210 – 1/4th deduction = Rs.3,947/- x 12 x 13 =
    Rs.6,15,732/-.

    25. This brings me to the amount of compensation to be
    reconsidered under conventional heads. Considering the well
    settled principles laid down by the Hon’ble Supreme Court in
    the landmark judgment of Pranay Sethi (supra), giving them
    benefit of 10% rise on the ground that the claimants have
    pursued the proceedings all throughout praying for
    enhancement under the conventional heads as well, it would
    be appropriate to fix amount of Rs.18,150/- each towards the
    funeral expenses as well as loss of estate.

    26. As regards the amount of compensation under the head
    of loss of consortium is concerned, considering the fact that
    the widow of the deceased has suffered loss of love, affection
    and companionship of her husband, is hereby held entitled to
    an amount of Rs.48,400/- towards spousal consortium.
    Similarly, both the aged parents of the deceased are held
    entitled to amount of Rs.96,800/- towards filial consortium.
    The two major sons having lost love and affection of their
    father at early age, are hereby held entitled to amount of
    Rs.96,800/- towards loss of parental consortium. The total
    amount of loss of consortium comes to Rs.2,41,800/-, which is
    rounded upto Rs.2,42,000/-.

    27. Thus in light of the aforesaid reasoning, the total amount
    of compensation is reconsidered as under :-

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    Sr. Particular Amount Enhanced
    no. awarded by amount
    the Tribunal

    1. Loss of dependency benefit Rs.5,38,200/- Rs.6,15,732/-

    2. Loss to estate Rs.5,000/- Rs.18,150/-

    3. Loss of consortium Rs.10,000/- Rs.2,42,000/-

    4. Funeral expenses Rs.10,000/- Rs.18,150/-

                                                                            ========             =========
                                                              Total :-      Rs.5,63,200/-        Rs.8,94,032/-
    
    
    

    28. For the foregoing reasons the appeal preferred by the
    appellant – insurance company is partly allowed and the
    cross objections preferred by the original claimants are
    hereby allowed. Consequently, the impugned judgment and
    award dated 22nd December, 2014 passed by the Motor
    Accident Claims Tribunal (Aux.) and 7 th Addl. District Judge,
    Vadodara in MACP no.1011 of 2010 is hereby modified by
    holding the original claimant entitled to seek recovery of sum
    of Rs.8,94,032/- with interest at the rate of 9% per annum
    from the date of filing of claim petition till its actual
    realization together with proportionate costs from the original
    opponent nos.1 and 2 jointly and severally.

    29. For the reasons recorded earlier, to subserve the ends of
    justice, the respondent no.3 insurance company is hereby
    directed to satisfy the aforesaid amount of compensation with
    proportionate costs and interest as awarded, at first instance
    to be paid to the claimants with further liberty to recover the
    aforesaid amount of compensation with proportionate costs
    and interest from the owner of the vehicle (original opponent
    no.2) by way of execution in accordance with law.

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    30. The appellant – insurance company is therefore directed
    to deposit the enhanced amount of compensation to the tune
    of Rs.3,30,832/- (Rs.8,94,032 – Rs.5,63,200) with 9% interest
    and proportionate costs as awarded, with the concerned
    Tribunal within period of six weeks from the date of receipt of
    certified copy of this order. On deposit of the aforesaid
    amount of compensation, the Tribunal shall be at liberty to
    proceed with the release and disbursement of the entire
    award amount in favour of the claimants as per the
    apportionment as directed in the impugned judgment and
    award. Let the aforesaid exercise be undertaken by the
    Tribunal within period of two weeks on deposit of the entire
    award amount. The Tribunal shall also look into the Court
    fees, if any to be realized before proceeding with the
    disbursement of the award amount.

    31. With these observations the first appeal stands partly
    allowed whereas the cross objection stands allowed. The R.
    & P. are directed to be remitted back to the concerned
    Tribunal with the writ of this judgment.

    Sd/-

    (NISHA M. THAKORE, J.)
    AMAR RATHOD…/sfs/24.03

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