K.M.Mehta, J. - (1.) I Shantaben widow of deceased Kantibhai Punjabhai Vankar and others, appellants-original claimants (petitioners) have filed this appeal under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as "the Act") against the judgment and award dated 28.08.1985 passed by the Motor Accident Claims Tribunal, Himmatnagar, Sabarkantha in M.A.C. Petition No. 30 of 1983. By the impugned award, the Tribunal has held that the claimants are entitled to recover a sum of Rs. 1,36,000/- from all opponents, viz., Opponent No. 1 Yakubhai Ibrahimbhai Patel and Opponent No. 2 Faquirmohed Noormohmed Memon with proportionate costs and interest at the rate of 6% per annum from the date of the application. However, as regards Insurance Company, Opponent No. 3 is concerned, the Tribunal has held that the liability of the Insurance Company is restricted to Rs. 50,000/- with proportionate costs and interest only. The Tribunal further held that all the opponents are jointly and severally liable to pay the aforesaid amount of compensation and to bear their own costs and the rest of the claim of the claimants is rejected. The Tribunal passed order for investment/disbursement also.
(2.) The appellant-original claimants contended before this Court that the appellants in the claim petition claimed damages to the tune of Rs. 3,00,000/-. As the learned Judge has awarded only Rs. 1,36,000/- and directed Respondent No. 3 the New India Insurance Company Limited to answer the judgment to the extent of Rs. 50,000/- with proportionate costs and interest. That is how the appellants have filed this present appeal. However, in the memo of appeal they have confined their claim to additional damages of Rs. 14,000/- only and further prayed that the Insurance Company should be made liable to answer the entire judgment i.e., whatever claim this Court may allow in this appeal.
(3.) The original memo of appeal was filed somewhere in January, 1986. However, subsequently the appellants have amended the memo of appeal and stated that if the judgment of the Tribunal is to be upheld i.e. the liability of the Insurance Company is limited then the appellants challenge the constitutional validity of Section 95(2)(a) and (b) of the Act on the ground that the said provisions are arbitrary, irrational, unreasonable and amount to hostile discrimination in violation of Article 14 of the Constitution of India. Thus, the constitutional validity of Section 95 was also challenged by way of amendment. The said amendment was filed somewhere in January, 1989. II. Basic Facts: 3. We will first set out relevant and material facts giving rise to this appeal which are as under: 3.1. Before discussing the matter in detail, we would like to give brief resume of the judgments in this behalf. First Para 3 to 3.6 we are setting out basic facts which emerge from the record of the case. Thereafter in Para 4 we have recorded Tribunal findings. Thereafter we have considered the contention of Mr. M.C. Bhatl in relation to statutory provisions, policy of the Act and thereafter we have considered Division Bench judgment of Firdos Pervez Mysorewala 's case which is in favour of the claimant and other subsequent judgments. However, in the said judgment, the Division Bench has considered the Constitution Bench judgment of C.M. Jaya 's case. It is the case of Mr. Rajni Mehta that the Constitution Bench judgment is in favour of Insurance Company and the Division Bench has not properly considered the same. Thereafter we have considered Constitution Bench judgment in CM. Java's case and also earlier judgment which led to the decision of C.M. Jaya's case. 3.1-A. Mr. Rajni Mehta has also stated that there are other contrary judgment of this Court which is taken contrary view namely Chandulal Gokaldas case that also we have considered in this behalf. 3.1-B. Over and above Division Bench judgment and Constitution Bench Judgment, Mr. M.C. Bhatt further submitted that there are other judgments of the Hon'ble Supreme Court which deals with the right of claimant and liability of the Insurance Company and third party right which we have considered in Para 11 to 11.31 (page 83 to 117). He has further submitted that there are other two judgments of Hon' ble Supreme Court in Skandia 's case and Sohanlal's case which also relates to the liabilities of the Insurance Company that we have considered in this behalf. 3.1-C. Thereafter Mr. Rajni Mehta has submitted that there are other judgments, which takes the view in favour of the Insurance Company that we have considered in Para 13.1 to 13.29 (page 140 to 156). Thereafter we have made our observations in this behalf i.e., Para 14 to 18 from page 157 to 190. That is how the matter has been discussed in this behalf. JUDGEMENT_1283_GCD2_2007Html1.htm 3.2. The original claim petition filed by Shantaben, widow of deceased Kantibhai Punjabhai Vankar and others before the Motor Accident Claims Tribunal. Himalnagar, Dist. Sabarkantha being Motor Accident Claim Petition No. 30 of 1982 under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as "M.V. Act"). In the said application it is stated that on 19.09.1982 Shri Kantibhai Punjabhai Vankar since deceased, was passing through near Idar S.T. Depot at Himmatnagar Idar road at 10.15 a.m. on the right side. At that time one rickshaw bearing registration No. GRN 94 which was driven rashly and negligently by Yakubbhai Ibrahimbhai Patel, opponent No. 1 and the rickshaw dashed Shri Kantibhai Punjabhai Vankar from behind and due to such impact Shri Kantibhai Punjabhai Vankar suffered injuries and ultimately died. 3.3. In view of the same, the claimants filed a claim petition claiming damages for death of Shri Kantibhai. The claimants have stated that when the deceased died at that time he was aged 30 years and he was serving in Gujarat State Road Transport Corporation (hereinafter referred to as "the Corporation") as a Clerk and his last salary drawn was Rs. 1044/- per month. In view of the same, the deceased had left behind him the widow and four minor children and mother Claimant No. 6. It was also submitted that the deceased joined the service of the Corporation in March, 1975 and at the time of his death, he was getting Rs. 921/- as pay and D.A., Rs. 57/- as contribution to Provident Fund and Rs. 19.50 as Family Pension, in All Rs. 987.50 per month. Thus the annual income of the deceased was Rs. 11,970/- (Rs. 987 x 12 = Rs. 11,970/-). It was also stated that he had additional income from agricultural operation. In the said amount, the claimants have added Rs. 900/- as bonus Rs. 750/- as further D.A., Rs. 1,000/- as free travelling expenses and Rs. 1,200/- as medical benefit. So in all Rs. 15,820/- per year claimed in the claim petition. It is stated that only expenses of the claimant is Rs. 1,500/- per annum and thus claimed Rs. 14,320/- as dependency loss which he will leave for the family and as the deceased was aged 30 years at the time of accident, they have claimed multiplier of 18 and, therefore, in all claimed a sum of Rs. 3,11,000/- as future income. 3.4. Before the Tribunal the Insurance Company, original Opponent No. 3 filed written statement at Exhibit-18. They have denied the allegations made by the claimants. It was also stated that there was a contributory negligence on the part of the deceased also. In Para 12 the Insurance Company stated that the Insurance Company strictly rely on the terms and conditions of the policy of insurance issued to the owner of the vehicle and under the terms and conditions of the said policy of the Insurance Company, the Insurance Company is not liable for any amount of compensation arising out of the alleged incident. It was slated that otherwise also the claim made by the claimants was highly excessive. It appears that the owner and the driver have adopted the written statement filed by the Insurance Company vide Exhibit-19. The Tribunal has framed issues at Exhibit-20 which read as under:- "(1) Whether the accident was caused due to the rash and negligent driving on the part of the driver of the auto-rickshaw No. GRL 94 as alleged? (2) Whether the deceased was guilty of the contributory negligence as contended? (3) To what amount of compensation are the claimants entitled to and from whom? 3.5. The claimants have produced at Exhibit-24 Secondary School Certificate to show that the date of birth of the deceased is 01.06.1952. Panchnama was also produced at Exhibit-25 and Exhibit-40 is service book and Exhibit-41 is salary statement of the deceased. The Insurance Policy was issued by New India Assurance Company at Exhibit-28. 3.6. As regards oral evidence, the claimants have examined Shantaben, widow of deceased Kantibhai Punjabhai Vankar that deceased was serving in S.T. Corporation and he used to get Rs. 1,000/- per month and he used to get salary from the S.T. Corporation and also income from agricultural operations. The claimants have also examined one Shri Sevantilal at Exhibit-39 who was serving as Junior Clerk in the Divisional Office of the G.S.R.T.C., at Himatnagar to show that the deceased was getting Rs. 878.20, Special pay Rs. 59 and other charges. III. Tribunal's Findings:;