Gujarat High Court
Oriental Insurance Co Ltd vs Rajeshwarikumari Janaksinh Chauhan on 9 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/962/2011 JUDGMENT DATED: 09/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 962 of 2011
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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ORIENTAL INSURANCE CO LTD
Versus
RAJESHWARIKUMARI JANAKSINH CHAUHAN & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR JM BAROT(143) for the Defendant(s) No. 1,2
RULE NOT RECD BACK for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 09/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Feeling aggrieved and dissatisfied with the impugned common judgment and award passed by the learned Motor Accident Claims Tribunal (Main), Sabarkantha, at Himatnagar in Motor Accident Claim Page 1 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025 NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined Petition No.875 of 2006 and other allied matters, whereby the learned tribunal has partly allowed all four claim petitions, whereby in Motor Accident Claim Petition No.875 of 2006, learned Tribunal awarded compensation of Rs.17,68,648/- but the learned Tribunal deducted an amount of Rs.1,76,865/- by holding 10% negligence on the part of deceased-Janaksinh Chauhan in the occurrence of accident. Therefore, the learned Tribunal has awarded a sum of (Rs.17,68,648-Rs.1,76,865/-) = Rs.15,91,783/- as compensation.
2. Heard learned advocate Mr.Vibhuti Nanavati for the appellant-original opponent No.3 and learned advocate Mr.J.M.Barot for respondent Nos.1 and 2-original claimant Nos.1 and 2.
3. Brief facts narrated in the present First Appeal are as under:-
3.1 On 25.03.2006, Janaksinh Chauhan was going Page 2 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025 NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined from Himatnagar to Prantij on his Motorcycle bearing registration No.GJ-16-J-7887 with his wife Pushpaben and minor daughters Priyanshukumari and Rajeshwarikumari as pillion riders. At about 6.45 p.m., when they reached near Kohinoor Motors, Sim-village Hajipur, original opponent No.1 driver of Truck bearing registration No.RJ-14-1-G-
5110, was going ahead of them, and all of a sudden, the said truck applied brakes without any sign and signal. Resultantly, motorcycle rammed into the backside of the truck resulting into serious injuries to all the four persons riding on the motorcycle. Because of the accidental injuries, Janaksinh Chauhan, Priyanshukumari and Pushpaben died and Rajeshwarikumari sustained serious bodily injuries.
3.2 Four separate claim petitions being Motor Accident Claim Petition Nos.875, 876, 877 and 878 of 2006 were filed by the present respondent No.1 and 2 namely Rajeshwarikumari Janaksinh Chauhan and Page 3 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025 NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined Ruprajkumari Janaksinh Chauhan.
3.3 The present First Appeal is arising out of Motor Accident Claim Petition No.875 of 2006 which was filed by respondent No.1 and respondent No.2 for a compensation of Rs.25,00,000/- upon the death of their father Janaksinh Chauhan. All four claim petitions were consolidated and common evidence was recorded in MACP No.875 of 2006 and by a common judgment and award dated 25.11.2010, learned Motor Accident Claims Tribunal (Main), Sabarkantha at Himatnagar partly allowed all four claim petitions by holding the truck driver negligent to the extent of 90% and the motorcyclist-deceased Janksinh Chauhan to the extent of 10% for the accident. The learned Tribunal while deciding all four claim petitions awarded an amount of compensation @ 7.5% as follows:-
Number of petitions Amount in Rs.
MACP No.875 of 2006 15,91,783/
MACP No.876 of 2006 3,33,000/-
MACP No.877 of 2006 1,54,500/-
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NEUTRAL CITATION
C/FA/962/2011 JUDGMENT DATED: 09/01/2025
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MACP No.878 of 2006 55,000/-
3.4 Being aggrieved and dissatisfied with the holding
of the driver of the truck negligent to the extent of 90%, the appellant-Insurance Company is before this Court. 4 Learned advocate for the appellant-original opponent No.3 has mainly contended that learned Tribunal has committed an error by holding the driver of the truck negligent to the extent of 90%. It is further submitted that in the claim petition, claimants have stated that on the date of accident, the driver of the truck all of a sudden applied brakes without any sign or signal which resulted into the motorcyclist dashing on the backside of the truck whereas in the FIR, Chargesheet and Panchnama, the offending truck was found stationary and the motorcyclist rammed into the backside of the truck causing the accident.
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NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined 4.1 When two different theories are coming on record, learned Tribunal ought to have appreciated the oral deposition of claimant No.1- respondent No.1 herein which is recorded at Ex.50. The said witness has deposed that she was sitting behind her father Janaksinh Chauhan, and therefore, could not say whether the offending truck was going on at high speed or not. It is further stated that she could not see in front of the motorcycle. 4.2 It is further submitted that Panchnama at Ex.39 explains the exact position of the truck and also the condition of the motorcycle. As per the Panchnama, the motorcycle was damaged to a great extent and from such evidence it can be submitted that deceased was plying motorcycle at a very high speed. Claimants have not pleaded any evidence with regard to the distance between the offending truck and motorcycle at the time of happening of the accident.
4.3 A further contention has been raised by the Page 6 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025 NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined learned advocate for the appellant that the motorcycle as per the R.C.Book which is produced at mark 21/1 indicates that the motorcycle is of 98.2 C.C. horsepower (B.H.P.). Undisputedly, the deceased was riding the motorcycle with three pillion riders namely, his wife (Pushpaben) and minor daughters (Priyanshukumari and Rajeshwarikumari). The accident has occurred solely of negligent driving of the deceased. It seems from the record that the deceased had not taken proper care and caution while plying the motorcycle. When the deceased did not keep a safe distance from the vehicle going ahead of the motorcycle, the driver of the offending truck could not have been saddled with the negligence to the extent of 90%. The accident occurred at 6.45 p.m. and in the month of March, there is always day light and the deceased could have spotted the truck, even if it is presumed that the truck was a stationary truck.
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NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined
5. Per contra, learned advocate for respondent No.1 and 2-original claimants has supported the judgment and award and submitted that the offending truck has remained negligent in applying brakes without any sign or signal which has resulted into the unfortunate accident and three persons have lost their lives. It is submitted that as per the Panchnama at Ex.39, the truck was stationed 3 feet away from the divider of the road. It is further submitted that the Investigating Officer, who has been examined at Ex.73 has admitted in his cross-examination that the truck was stationed when the accident took place. It is further contended that the occurrence of the accident which has been stated in the claim petition is the correct narration and the truck was not in a stationary position when the accident took place.
5.1 It is further contended that when from the oral deposition of respondent No.1 and from other documentary evidence, the learned Tribunal has found the offending Page 8 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025 NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined truck negligent to the extent of 90%, this Court may not interfere in the assessment of negligence and the judgment and award may not be disturbed. Except these submissions, no other submissions are made by the learned advocate for the claimants.
6. We have considered the rival submissions and also perused the record and proceedings. Undisputedly, on the date of accident, deceased was riding the motorcycle with three pillion riders and dashed into the backside of the truck which resulted into the death of Janaksinh Chauhan, Priyanshukumari and Pushpaben and respondent No.1 Rajeshwarikumari sustained injuries. There are two theories of happening of the accident which are coming out from record. The first theory, the narration given by the claimants in the claim petition is that, the offending truck was going ahead of the motorcycle, all of a sudden without any sign or signal offending truck applied brakes Page 9 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025 NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined and therefore, the motorcycle rammed into the backside of the truck. The second theory, which has been considered by the learned Tribunal is by relying upon the Panchnama and the oral deposition of Investigating Officer. As per the Panchnama, Chargesheet and oral deposition of the Investigating Officer, the offending truck was in a stationary condition and the motorcycle dashed the truck from behind. Undisputedly, there is no eye witness to the accident. The only witness who can be said to have seen the actual happening of the accident is claimant No.1- Rajeshwarikumari. However, the said witness has remained silent in her deposition with regard to the distance between two vehicles and the speed of the motorcycle. What is gathered from her evidence is that the truck was in motion and all of a sudden, driver of the truck applied brakes without any sign or signal which caused the accident. So, the second theory, that truck was in a stationary condition is ruled out for the reason that neither Page 10 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025 NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined the Investigating Officer was present nor any eye witness is found at the spot when the accident took place. Panchnama can only be used as evidence for the limited purpose of ascertaining the position of the vehicles, condition of vehicles after the impact and for ascertaining the location and the width of the road where the accident took place. The contents of the Panchnama, in the present case is not helpful in arriving at the conclusion that the offending truck abruptly applied brakes without any sign or signal. Our view is fortified by perusing the Panchnama. The Panchnama of the site of the accident does not disclose any brakemarks of the truck on the road. Even if the theory of the claimant is believed that the offending truck applied brakes, the brakemarks would be found on the road. Thus, the story tried to be developed by the claimants that the offending truck suddenly applied brakes without any sign or signal is not established. 6.1 Panchnama at Ex.39 is the only document Page 11 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025 NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined which can be considered for finding the exact position of the two vehicles and condition of vehicles after the impact. Panchnama depicts the situation of the place of accident. As per panchnama, the width of the road is 30 feet in East-West direction. The truck is found facing southern direction and left backside of the truck is found damaged. Angle of the rear side of the truck is found damaged and separated from welding. The motorcycle is found under the left backside wheel of the truck. The distance between the left side of the truck and the drainage line on the eastern side of the road is 3 feet. The width of the drainage line is 3 feet. There exits a service road after the drainage line on the eastern side of the road. Whereas on the western side of the truck, the distance between the truck and divider is 3 feet. This leaves 24 feet road open wherein the truck is found. As can be seen from the Panchnama, the motorcyclist dashed on left backside of the truck. Claimant No.1- Page 12 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025 NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined Rajeshwarikumari has conveniently avoided reply to the question put to her with regard to the happening of the accident. She has conveniently replied that as she was sitting behind her father, she could not see the front side of the motorcycle.
6.2 From the Panchnama and from the replies given by the claimants regarding the manner in which the accident took place, we are of the view that the motorcyclist might have tried to overtake truck from left side, which is not permissible under the Traffic Rules and dashed with the rear left of the truck. Moreover, there were three pillion riders on the motorcycle with the deceased which could have led the deceased in off balancing the motorcycle. The fact that deceased was plying motorcycle with 3 pillion riders itself speaks that the deceased has committed breach of the Rules. The R.C.Book which is placed on record clearly says that the type of body is 'solo with pillion'. There is every Page 13 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025 NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined possibility that the deceased while overtaking the truck from left side rammed into the truck which caused death of three persons and one sustained injuries. 6.3 It would be profitable to refer Section 128 of the Motor Vehicles Act, 1988:-
"128. Safety measures for drivers and pillion riders:-(1) No driver of a two-wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver's seat with appropriate safety measures. 6.4 The said provision mandates that no driver of two wheeled motorcycle shall carry more than one person in addition to himself on the motorcycle. The said provision prescribes certain safety measures for drivers and pillion rider of motor vehicles. When the provision prohibits the rider of motorbike for taking more than one pillion rider, breach of such safety measures amounts to negligence.
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NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined 6.5 Regulation 23 of Rules of the Road Regulations, 1989 would be apt to be referred in the facts of the present case.
"23 Distance from vehicles in front: The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop."
6.6 In the words of the Hon'ble Apex Court in the case of Nishan Singh & Ors. Vs. Oriental Insurance Company Ltd. through Regional Manager & Ors. reported in 2018 LawSuit (SC) 424 decided on 27.04.2018, the thumb rule of the sufficient distances is at least a safe distance of two to three seconds gap in ideal condition to avert collision and to allow the following driver to time to respond. In the present case, claimants have for the reasons best known to them conveniently not specified the distance between the truck and motorcycle just before the impact. The blame must rest on the motorcyclist for having driven the motorcycle rashly and negligently.
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NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined 6.7 Another aspect which justifies our assumption is that it is neither the case of the claimants nor has come on record the reason for the truck driver to apply sudden brakes. From the assessment of the evidence, we are of the view that both the vehicles are equally negligent in the occurrence of the accident. Therefore, the fastening of the liability on the truck to the extent of 90% is modified and is reduced to 50%, whereas, the negligence of the motorcyclist i.e. deceased is increased upto 50% from 10%.
7. Accordingly, the First Appeal is partly allowed. Therefore, claimants of MACP No.875 of 2006 are entitled to recover (Rs.17,68,648-Rs.8,84,324/-) = Rs.8,84,324/- as compensation instead of Rs.15,91,783/- from original opponent Nos.1 to 3 jointly and severally with simple interest @ 7.5% per annum from the date of petition till realization. The rest of award passed in MACP No.875 of 2006 is unaltered.
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NEUTRAL CITATION C/FA/962/2011 JUDGMENT DATED: 09/01/2025 undefined The appellant-insurance Company may claim refund of the excess amount of compensation which has been deposited before the learned Tribunal and learned Tribunal shall refund such excess amount of compensation to Insurance Company. If the deposited amount has been withdrawn by the claimants, opponent No.3-Insurance Company, may recover the same from the claimants by following due process of law. No order as to costs. Record and proceedings, be sent back to the concerned Court/Tribunal.
(BIREN VAISHNAV, J) (D. M. DESAI,J) MANOJ Page 17 of 17 Uploaded by MANOJ KUMAR(HC01092) on Wed Jan 22 2025 Downloaded on : Fri Jan 31 23:45:08 IST 2025