C/FA/1709/2019 JUDGMENT DATED: 15/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1709 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/FIRST APPEAL NO. 1709 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
UNITED INDIA INSURANCE CO.LTD
Versus
PRAVINBHAI GANPATBHAI RATHOD
==========================================================
Appearance:
MR ANAL S SHAH(3988) for the Appellant(s) No. 1
MR JINESH H KAPADIA(5601) for the Defendant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 3
NOTICE NOT RECD BACK for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/02/2023
ORAL JUDGMENT
1. The challenge is given to the judgment and order passed in MACP No.419/15 dated Page 1 of 8 Downloaded on : Fri Feb 17 20:55:28 IST 2023 C/FA/1709/2019 JUDGMENT DATED: 15/02/2023 31.1.2018 by MACT (Aux), Vadodara at Savli.
2. Mr. Anal Shah, learned advocate for the appellant submits that the accident had occurred due to negligence of both the drivers and the aspect of composite negligence of the driver of the tempo ought to have been considered and thereby, the learned Tribunal could have considered the contributory negligence of tempo driver to the extent of 50%. Mr. Shah further states that the driving license of the opponent no.1 - driver of the tanker no. GTY - 6572 was not valid and effective on the date of the accident and he was not holding the license to drive the said tanker and therefore, the appellant - insurance Company should not be held liable to pay the compensation amount awarded. At the same time, Mr. Shah has brought to the notice of this Court the judgment dated 31.7.2019 Page 2 of 8 Downloaded on : Fri Feb 17 20:55:28 IST 2023 C/FA/1709/2019 JUDGMENT DATED: 15/02/2023 passed in First Appeal no.2007 of 2019 arising out of MACP No.420 of 2015.
3. Mr. Jinesh Kapadia, learned advocate for the opponent no.1 - claimant, supporting the judgment of the Tribunal, submits that the Coordinate Bench of this Court in First Appeal no.2007 of 2019 has taken the consistent view for the reasons given by the Tribunal and thus, submits that the amount granted is just and reasonable and the said contention, which has been raised in the present appeal, has already been decided by the Coordinate Bench in First Appeal no.2007 of 2019. Hence, by adopting the same, Mr. Kapadia submits that now there would not be any interference with the reasons given by the Tribunal.
4. Mr. Modi, learned advocate for the owner of the tempo, too supported the judgment of the Page 3 of 8 Downloaded on : Fri Feb 17 20:55:28 IST 2023 C/FA/1709/2019 JUDGMENT DATED: 15/02/2023 Tribunal and states that the order of the Tribunal is just, proper and reasonable.
5. It appears that the grounds which have been raised by the insurance Company are regarding the negligence and also contended that the driver was not having valid and effective license on the date of the accident. The facts of the case suggest that on 27.2.2002 at about 08.30 hrs., the claimants were proceeding towards Vadodara in a tempo bearing registration no. GJ-6 V- 6107, which was driven in moderate speed and correct side of the road following the traffic rules and regulations. When the tempo reached near Kathariya Stand on Vasad- Asodar road, at that time, driver of tanker bearing registration no. GTY-6572 came from the opposite direction in a very excessive speed rashly and negligently, lost control over the steering and dashed the vehicle in Page 4 of 8 Downloaded on : Fri Feb 17 20:55:28 IST 2023 C/FA/1709/2019 JUDGMENT DATED: 15/02/2023 which the claimants were traveling who sustained injuries because of the vehicular accident.
6. The Coordinate Bench has observed regarding the negligence aspect in Paragraphs 13 and 14, which read as under:-
"13. With regard to the aspect of negligence, learned advocate submitted that the Tribunal has given finding of fact on the basis of complaint at Exh.24, panchnama at Exh.25 and after considering the same, the Tribunal has held that driver of the tanker was solely negligent in causing the accident.
14. Having considered the rival submissions made by both the sides as well as oral and documentary evidence on record, it emerges that the Tribunal has taken into consideration complaint at Exh.24, panchnama at Exh.25, to decide the issue of negligence. The complaint is filed by conductor/cleaner of the tanker Vinodbhai Shivkumar who is brother of driver of the tanker. It is stated in the complaint that while plying the vehicle, driver of the tanker was Page 5 of 8 Downloaded on : Fri Feb 17 20:55:28 IST 2023 C/FA/1709/2019 JUDGMENT DATED: 15/02/2023 trying to overtake an unknown vehicle, as a result of which, driver lost control over the tanker and caused accident. Spot panchnama at Exh.25 indicates that the accident occurred on an open road i.e. VasadAsodar road. Thus, had the driver of the tanker taken little care while driving the tanker which is a heavy vehicle, the accident could have been averted. The Tribunal on the basis of evidence on record correctly attributed sole negligence on part of the driver of the tanker."
7. With regard to contention raised of driving license, the observations made in Paragraph 17 are reproduced hereinbelow:-
"17. It was submitted by the
learned advocate for the
appellantinsurance company that
there was clear breach of policy condition since the driver was not having valid and effective driving license. The Tribunal has considered the above submission and referring to the settled legal position on the issue, held that driver of tanker was having valid and effective driving license, which requires no interference. The Tribunal thereafter looking to the Page 6 of 8 Downloaded on : Fri Feb 17 20:55:28 IST 2023 C/FA/1709/2019 JUDGMENT DATED: 15/02/2023 insurance policy covering the insurance of the tanker during the period of accident, held the insurance company along with driver and owner of the tanker liable to satisfy the award."
8. Thus, considering the reasons and contentions raised, The Coordinate Bench did not find any merit in the appeal filed by the appellant-United India Insurance Company Ltd. and in view of the findings of facts arrived at by the Tribunal on the basis of the oral and documentary evidence on record, the Coordinate Bench did not deem fit to interfere in the impugned judgment and award passed by the Tribunal.
9. The same contention has been raised here in the present matter. The observations made by the Tribunal in the common judgment and award have been appreciated by the Coordinate Bench in First Appeal no.1709 of 2019. The impugned judgment and award is Page 7 of 8 Downloaded on : Fri Feb 17 20:55:28 IST 2023 C/FA/1709/2019 JUDGMENT DATED: 15/02/2023 also on same facts and contentions raised. Since the reasons given by the Tribunal found consistent with the Coordinate Bench, this Court also does not find any reason to interfere with the reasons assigned by the Tribunal. Thus, in consistent view of the Coordinate Bench, the present appeal stands dismissed. Stay granted earlier in Civil Application no.2 of 2018 stands vacated and the amount be disbursed in accordance to the ratio laid down by the Tribunal.
(GITA GOPI,J) Maulik Page 8 of 8 Downloaded on : Fri Feb 17 20:55:28 IST 2023