Gujarat High Court
New India Assurance Company vs Ashaben Ibrahimbhai Vora on 3 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/71/2015 JUDGMENT DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 71 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
No
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NEW INDIA ASSURANCE COMPANY
Versus
ASHABEN IBRAHIMBHAI VORA & ORS.
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Defendant(s) No. 3
MR R.K.MANSURI(3205) for the Defendant(s) No. 1
UNSERVED EXPIRED (N) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI) [1] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal, Modasa, Dist.-Sabarkantha Page 1 of 9 Uploaded by MANOJ KUMAR(HC01092) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:49:13 IST 2025 NEUTRAL CITATION C/FA/71/2015 JUDGMENT DATED: 03/01/2025 undefined in Motor Accident Claim Petition No.1454/2013 (Old MACP No.04/2010) by which the learned Tribunal has partly allowed the claim petition and has awarded a total sum of Rs.14,70,000/-, out of which, the 50% from the compensation for negligence on the part of deceased were deducted and Rs.7,35,000/- has been awarded towards compensation with interest @ 9% in favour of claimant. Appellant-original opponent No.3 has preferred the present appeal.
[2] We have heard Mr.G.C.Mazmudar, learned Advocate appearing on behalf of the appellant - original opponent No.3 and Mr.R.K.Mansuri, learned Advocate for respondent No.1 - original claimant. Though notice has been served, none appeared for respondent No.3. 2.1 We have considered and perused the impugned judgment and award passed by the learned Tribunal. We have also considered the entire evidence on record. Page 2 of 9 Uploaded by MANOJ KUMAR(HC01092) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:49:13 IST 2025
NEUTRAL CITATION C/FA/71/2015 JUDGMENT DATED: 03/01/2025 undefined [3] Brief facts narrated in the present case are as under:-
3.1 On 13/10/2002, the deceased, Firoz, along with his wife and daughter, was traveling using his friend's Maruti Esteem car bearing registration number GJ-05-N- 3270. While driving through Valan village a tempo bearing registration No.GJ-6-Y-5127 came in full speed from opposite direction and dashed on the front side of the Car. As a result of dashing of the car, tyre was burst and car was dragged towards divider side with the tempo. As a result, the deceased, Firoz suffered a head injury and died on the spot, while his wife and daughter sustained severe injuries.
3.2 Thereafter, the mother of deceased Firoz filed an application u/s 166 of Motor Vehicle Act, 1988 before the learned Motor Accident Claim Tribunal, at Modasa for compensation of Rs.44,00,000/-. The learned Tribunal partly allowed the application of claimant and awarded Page 3 of 9 Uploaded by MANOJ KUMAR(HC01092) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:49:13 IST 2025 NEUTRAL CITATION C/FA/71/2015 JUDGMENT DATED: 03/01/2025 undefined Rs.14,70,000/- to the claimant, but the learned tribunal deducted 50% from compensation for negligence on the part of deceased and ordered opponent Nos.1 to 3 jointly and severally to pay Rs.7,35,000/- to the claimant with interest of 9% vide award dated 10/02/2014. Being aggrieved and dissatisfied with the said award, the appellant- Insurance Company is before this Court. [4] At the outset it is required to be noted that the deceased Firozbhai Vohra was aged 33 years at the time of accident. That the learned Tribunal awarded future loss of income/loss of dependency by assessing/considering the income of the deceased at Rs.7,500/- per month. The learned Tribunal considered 50% addition as prospective income i.e. 11,250=00 p.m. Deducting 1/3rd towards personal expenses of the deceased, the learned Tribunal considered the dependency at Rs.7,500/- per month and applying the multiplier of 16, awarded Rs.14,40,000/- towards future loss of income. The learned Tribunal also Page 4 of 9 Uploaded by MANOJ KUMAR(HC01092) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:49:13 IST 2025 NEUTRAL CITATION C/FA/71/2015 JUDGMENT DATED: 03/01/2025 undefined awarded Rs.10,000/- loss of estate and Rs.10,000/- towards transportation and funeral and Rs.10,000/- for loss of love and affection expenses. Thus, the learned Tribunal awarded a sum of Rs.14,70,000/- but the learned Tribunal deducted 50% from compensation for negligence on the part of deceased and has awarded a sum of Rs.7,35,000/- as compensation with 9% interest thereon from the date of filing of claim petition till realization. [5] Mr.Majmudar, learned Advocate appearing on behalf of the appellant submitted that learned Tribunal has awarded compensation without considering the merits of the case and without properly appreciating the evidence on record. It is further submitted that learned Tribunal has committed gross error by holding 50% negligence of tempo driver, despite clear averments in the FIR and Panchnama regarding deceased's own negligence. It is further contended that the FIR was registered by another Truck Page 5 of 9 Uploaded by MANOJ KUMAR(HC01092) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:49:13 IST 2025 NEUTRAL CITATION C/FA/71/2015 JUDGMENT DATED: 03/01/2025 undefined Driver, who was following the Maruti Esteem Car and the said driver stated that the driver of Maruti Car was in full speed and overtook his truck and just at a distance of 150 feet, the tyre of car burst and Maruti Car jumped the divider above 15 feet and went on the wrong side and dashed with Tempo. It is further contended that in the occurrence of the alleged accident, Tempo driver was not negligent as he was on the correct side of the road and as per the Panchnama, an attempt was made by the Tempo driver to avoid the accident by applying brake. However, this vital evidence has not been considered by the learned Tribunal.
5.1 Learned advocate for the appellant has submitted that opponent No.1-claimant has withdrawn the First Appeal No.284 of 2016 that was filed for enhancement of compensation and hence, the appellant has restricted his challenge in the present appeal on the ground of percentage of negligence fastened upon the driver of the Page 6 of 9 Uploaded by MANOJ KUMAR(HC01092) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:49:13 IST 2025 NEUTRAL CITATION C/FA/71/2015 JUDGMENT DATED: 03/01/2025 undefined Tempo.
[6] Countering the submissions, learned advocate Mr.Mansuri for respondent No.1-original claimant submitted that the negligence which has been fastened upon the driver of Tempo is pursuant to the evidence on record. It is submitted that on bare perusal of the FIR and Panchnama, it cannot be assumed that the Tempo driver was not negligent and the fastening of 50% negligence on the driver of the Tempo is against the evidence. It is submitted that the driver of the Truck, who had registered FIR, has not been examined by the Insurance Company. It is further submitted that the First Appeal bearing No.284 of 2016 filed by the claimant for enhancement of compensation has been withdrawn by the appellant accepting compensation awarded by the learned Tribunal. [7] Considering the facts and circumstances of the case and settled principles of law, we find that the learned Page 7 of 9 Uploaded by MANOJ KUMAR(HC01092) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:49:13 IST 2025 NEUTRAL CITATION C/FA/71/2015 JUDGMENT DATED: 03/01/2025 undefined Tribunal has fairly considered the materials available on record and has awarded just and fair compensation. As far as the question with regard to the negligence is concerned, the FIR and Panchnama indicate that the deceased was driving Maruti Esteem Car with excessive speed and even looking at the Panchnama, it is borne out that the condition of the tyres of the car was old and remoulded. The cause of the accident is the bursting of tyre, thereby the car jumped the divider and went on the other side of the divider and thereby dashed with the Tempo which was coming from its right direction. The applicant in the claim petition has made a wrong statement with regard to the occurrence of accident. It is alleged in the application that the Tempo came near the divider and dashed with the Maruti Car and because of the impact of the Tempo, tyre of Maruti Car burst. There is no contrary evidence led by the claimant against the occurrence of the accident which is mentioned in the FIR. The Car driver was driving in a Page 8 of 9 Uploaded by MANOJ KUMAR(HC01092) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:49:13 IST 2025 NEUTRAL CITATION C/FA/71/2015 JUDGMENT DATED: 03/01/2025 undefined rash and negligent manner which resulted into bursting of the tyre which is not the fault of the Tempo driver. We are of the opinion after considering the evidence on record and considering the reasons assigned by the learned Tribunal that the learned Tribunal has rightly assessed the percentage of negligence in the occurrence of the accident. Even the appellant could not point out any contrary evidence to substantiate his contention that driver of the Tempo was not negligent in either avoiding the accident or in causing the accident.
8. Thus, present First Appeal has no merit and deserves to be dismissed. Accordingly, First Appeal is dismissed. No order as to costs. Record and proceedings, if received, be sent back to the concerned Court.
(BIREN VAISHNAV, J) (D. M. DESAI,J) MANOJ Page 9 of 9 Uploaded by MANOJ KUMAR(HC01092) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:49:13 IST 2025