Gujarat High Court
National Insurance Company vs Tabassum Jannathusein Khan on 7 February, 2025
NEUTRAL CITATION
C/FA/2511/2011 ORDER DATED: 07/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2511 of 2011
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NATIONAL INSURANCE COMPANY
Versus
TABASSUM JANNATHUSEIN KHAN & ORS.
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 4
DS AFF.NOT FILED (R) for the Defendant(s) No. 5
MR AMIT N PATEL(2749) for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/02/2025
ORAL ORDER
Being aggrieved by and dissatisfied with the aforesaid Award dtd. 22.6.2011 passed by the Motor Accident Claims Tribunal (Main), Valsad in Motor Accident Claim Application No. 325/2004, the appellant has preferred this appeal.
2. Heard learned advocates for the respective parties.
3. Learned Advocate Mr.Mehta for the appellant - insurance company has mainly contended that legal heirs of the deceased filed the petition before the Workman's Commissioner for getting the compensation for death of the deceased and received compensation there- from and therefore this is second petition filed under Section 166 of the MV Act seeking compensation was not maintainable. He would further submit that apart from the issue of maintainability, the tribunal erred in assessing inter se negligence of both the errant vehicle one of which belongs to deceased. He would further submit that accident was on head- on collusion manner yet opponent no.1 was held negligent to 85% while Page 1 of 5 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:49 IST 2025 NEUTRAL CITATION C/FA/2511/2011 ORDER DATED: 07/02/2025 undefined deceased was 15%. He would submit that considering the nature of accident, both the errant vehicles should be held equally liable in causing the road accident.
4. By making above submissions, he would submit to allow this appeal.
5. Per contra, learned Advocate Mr.Patel while relying upon the decision in case of Nasimbanu wd/o. Sirajuddin Amruddin Kazi & Ors., vs. Ramjibhai Bachubhai Ahir & Ors., [2005 (2) GLR 1476] would submit that compensation received from the owner of the vehicle under the WC Act would not debar the claimant from claiming the compensation under the MV Act from the tort-feasor, owner and insurer of the other vehicle involved in accident. He would further submit that amount received under the WC Act from the employer would not be deducted from the compensation receivable under the MV Act.
5.1 Insofar as the negligence aspect is concerned, he would submit that learned tribunal discussed in paragraph 11 of judgment the said aspect elaborately and none of the driver had entered into the witness box and the learned tribunal by applying the principle of res ipsa loquitor came to the just and proper conclusion.
5.2 By making above submissions, he would submit to dismiss the appeal.
6. Having heard the learned advocates appearing for the respective parties and examined R & P what could be noticeable that deceased received fatal injuries out of the road accident occurred in head-on collusion manner and legal heirs of the deceased filed petition under the Page 2 of 5 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:49 IST 2025 NEUTRAL CITATION C/FA/2511/2011 ORDER DATED: 07/02/2025 undefined WC Act against the owner and insurer of the truck which came to be allowed. Another claim petition was filed under Section 166 of the MV Act against the tort-feasor i.e. driver, owner and insurer of the trailer i.e. other vehicle involved in the road accident. The learned tribunal referred to the decision in case of Nasimbanu wd/o. Sirajuddin Amruddin Kazi (supra) and held that claim petition under Section 166 of the MV Act is maintainable despite the legal heirs have received the compensation under the WC Act. Since the said issue has been crop up, this Court may refer to relevant finding in paragraph 6 of Nasimbanu wd/o. Sirajuddin Amruddin Kazi (supra) which reads thus:
"Even otherwise, there is no force in the submissions raised by the learned counsel for the appellant-Insurance Company. Section 110A of Motor Vehicles Act, 1939 is applicable to a person who has two remedies against the joint tort feaser(s) while object of Section 3(5) of the Workmen's Compensation Act, 1923, is to save the employer from double jeopardy, meaning thereby, from multiplicity of litigation, one under the Workmen's Compensation Act, 1923, and other under the Motor Vehicles Act, 1939. Where a claimant can avail one remedy against the employer under the Workmen's Compensation Act, 1923, he is not debarred from raising / claiming compensation under the Motor Vehicles Act, 1939, against the tort feaser. Present is a case where claimants are receiving compensation from the employer who is statutorily bound to pay the same on the death of deceased being his Master. This is separate relationship and liability and has nothing to do with the liability of a tort feasor under the Motor Vehicles Act, 1939. In the claim petition before the Claims Tribunal, employer and insurer of Tanker are not party, therefore, no claim has been raised against them. Submission raised by the appellant, if Page 3 of 5 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:49 IST 2025 NEUTRAL CITATION C/FA/2511/2011 ORDER DATED: 07/02/2025 undefined accepted, would mean that claimants should feel satisfied with whatever is paid to them under the Workmen's Compensation Act, 1923, by the employer, and thereby, tort feaser escaping liability under the Motor Vehicles Act, 1939, which remedy is independently available to the claimants as third party qua the offending vehicle."
7. Thus, the aforesaid position of law clearly applies to the facts of the case and therefore the contention raised by learned advocate for the appellant Mr.Mehta would not survive and accordingly it is rejected.
8. The second submission made by learned advocate Mr.Mehta to hold both the errant vehicles negligent in equal manner failed to sustain. Each road accident is having different facts and circumstances and therefore taking hypothetical view that two vehicles of equal nature involved in the road accident are treated to be equally negligent in head- on collusion accident is unacceptable. The one of the vehicle was driven by the deceased and trailer driver did not enter into the witness box and thus there is no evidence lead by the insurance company. The oral evidence of the driver of the trailer is as important as one since he was an eye-witness to the accident and he can clarify the situation exactly and in absence thereof the adverse inference can be drawn against him. The tribunal after referring to the contents of the Panchnama in absence of any specific evidence led by the insurance company has rightly come to the conclusion holding driver of trailer negligent to the extent of 85% and 15% to the deceased. This Court does not find any infirmity in the said finding.
9. For the foregoing reasons, the appeal fails and is accordingly dismissed. The Tribunal shall disburse the entire awarded amount lying in Page 4 of 5 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:49 IST 2025 NEUTRAL CITATION C/FA/2511/2011 ORDER DATED: 07/02/2025 undefined the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) sompura Page 5 of 5 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 21:59:49 IST 2025