Gujarat High Court
United India Insurance Company Limited vs Jaan Mohmad Momalvev on 16 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/2502/2010 JUDGMENT DATED: 16/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2502 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
==========================================================
Approved for Reporting Yes No
==========================================================
UNITED INDIA INSURANCE COMPANY LIMITED
Versus
JAAN MOHMAD MOMALVEV & ORS.
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR KIRIT I PATEL(628) for the Defendant(s) No. 4.1,4.1.1,4.2
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 16/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The present First Appeal is preferred by the appellant-Insurance Company against the impugned common judgment and award passed by the learned Motor Page 1 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined Accident Claims Tribunal (Aux.), Court No.14, Ahmedabad in Motor Accident Claim Petition Nos.774, 776, 775, 777, 778, 779, 780 of 2001, whereby the learned tribunal has partly allowed the claim petitions.
2. Heard learned advocate Mr.Vibhuti Nanavati for the appellant-Insurance Company and learned advocate Mr.Kirit Patel for respondent Nos.4.1.1 and 4.2.
3. Brief facts of the case are as under:
3.1 On 08.11.2000, (i) Ashish Vallabhbhai Khambhayata, with (ii) his brother Bharatbhai Vallabhbhai Khambhayata (iii) his wife Hinaben Ashish Khambhayata,
(iv) his mother Nirmalaben Vallabhbhai Khambhayata, (v) his daughter Krusha Ashish Khambhayata, (vi) his father-
in-law Kumandas Nathubhai Zinzuwadia and (vii) his mother-in-law Kantaben Kumandas Zinzuwadia, were traveling in a Maruti Van bearing No.GJ-15-A-6177. The said Maruti Van was driven by Ashish Vallabhbhai Page 2 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined Khambhayata. The other family members of the claimant No.1 Vallabhbhai Khambhayata, were also traveling in other 3 vehicles namely Maruti Zen, Indica, another Maruti Zen. All 4 cars were proceeding from Ajmer to Nathdwara on N.H. No.8. At near village Devgadh, a Truck bearing Registration No.RJ-02-G-2737 coming from opposite direction in full speed and in rash and negligent manner knocked down maruti van bearing No.GJ-15-E- 6177, at 10.45 a.m. In the said accident all passengers including driver namely Ashish Vallabhbhai Khambhayata, expired because of accidental injuries. Separate Claim petitions were filed for the compensation.
Sl. MACP Nos. Claimants Claimed
amount
(Rupees)
1. 774/2001 1. Vallabhbhai C. Khambhayata 2,40,000/-
2. Hiteshbhai V. Khambhayta
(For deceased Nirmala Vallabhbhai
Khambhayata)
2. 775/2001 1. Vallabhbhai C. Khambhayata 10,80,000/-
2. Hiteshbhai V. Khambhayta
Page 3 of 15
Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025
NEUTRAL CITATION
C/FA/2502/2010 JUDGMENT DATED: 16/01/2025
undefined
(For deceased Bharatbhai
Vallabhbhai Khambhayata)
3. 776/ 2001 1. Vallabhbhai C. Khambhayata 24,00,000/-
2. Hiteshbhai V. Khambhayta
(For deceased Ashish V.
Khambhayata)
4. 777/ 2001 1. Vallabhbhai C. Khambhayata 7,20,000/-
2. Hiteshbhai V. Khambhayta
(For deceased Hina Ashish
Khambhayata)
5. 778/2001 1. Vallabhbhai C. Khambhayata 2,34,000/-
2. Hiteshbhai V. Khambhayta
(For deceased Krusha Ashish
Khambhayata)
6. 779/2001 Kajalben Kumanbhai Zinzuvadia 5,40,000/-
(For deceased Kantaben Kumanbhai
Zinzuvadia)
7. 780/2001 Kajalben Kumanbhai Zinzuvadia 20,13,000/-
(For deceased Kumanbhai
Nathabhai Zinzuvadia)
3.2 In all captioned claim petitions, driver and
owner of the truck bearing Registration No. RJ-02-G-2737 and owner of Maruti Van bearing registration No.GJ-15-E- 6177 were served with the notice. The driver and owner of the truck i.e. opponent Nos.1 and 2 respectively and owner of Maruti Van i.e. opponent No.4 though duly Page 4 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined served with the notice, have not filed their Written Statement.
3.3 Opponent No.3 being the Insurance Company of the Truck appeared and filed Written Statement at Ex.23 in MACP Nos.774, 775 and 776 of 2001 and at Ex.22 in MACP Nos.777, 778, 779 and 780 of 2001. 3.4 Opponent No.5 being the Insurance Company of Maruti Van, though duly served; however die not appear and chose not to file Written Statement. 3.5 All claim petitions were consolidated and decided by way of a common judgment. Vallabhbhai C. Khambhayata led oral evidence vide Ex.31 and also produced documentary evidences such as Panchnama, FIR, Postmortem report and other evidences. After recording the oral deposition of Vallabhbhai C. Khambhayata, the said claimant expired on 12.01.2007.
Page 5 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025
NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined 3.6 After considering the evidence on record, learned Tribunal has awarded following compensation in favour of respective claimants.
Sl. MACP Amt. of Amt. Amt. payable Amt. payable by
No Nos. claim awarded by the driver the driver owner
(Rs.) (Rs.) owner and and insurer of
insurer of Maruti Car
truck bearing bearing
registration registration No.
No. RJ-02-G- GJ-15-E-6177 -
2727-80%(Rs.) 20% (Rs.)
01 774-01 2,40,000/- 1,60,000/- 1,28,000/- 32,000/-
02 775-01 10,80,000/- 4,33,000/- 3,46,400/- 86,600/-
03 776-01 24,00,000/- 6,72,800/- 5,38,240/- NIL
04 777-01 7,20,000/- 4,33,000/- 3,46,400/- 86,600/-
05 778-01 2,34,000/- 1,60,000/- 1,28,000/- 32,000/-
06 779-01 5,40,000/- 3,85,000/- 3,08,000/- 77,000/-
07 780-01 20,13,000/- 5,43,000/- 4,34,400/- 1,08,600/
3.7 Being aggrieved and dissatisfied with the
impugned judgment and award, the Insurance Company has filed all captioned First Appeals.
4. Learned advocate for the appellant - Insurance Company has raised the contention that the learned Tribunal has erred in deciding the issue of negligence. It is Page 6 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined submitted that at Ex.37 Vallabhbhai C. Khambhayta, father-in-law of deceased Hina Khambhayata has stated that the right front tyre of Maruti Van had burst, resultantly deceased driver of the Van lost control over the steering and went on the wrong side of the road. As the truck bearing No.RJ-02-G-2727 was coming from opposite direction, the Maruti Van collided with the Truck on the front portion. As per the sketch drawn by the Police Authority at Ex.36, Maruti Van was coming from Biyavar Bhim to Kamlighat i.e. from north to south and the truck was coming from Kamlighat towards Biyavar Bhim i.e. from south to north. As per the sketch of the scene of the accident, the car and truck were found lying on the Kacha road i.e. on the western side of the road. The driver of the Maruti Van was solely negligent in causing the accident as he lost control over the steering because the right front side tyre of Maruti Van burst. Page 7 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025
NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined 4.1 It is further contended that when there is ample evidence by way of FIR at Ex.37, Panchnama at Ex.36 alongwith the sketch of scene of accident, non-examination of the driver of the Truck is of no relevance. When the documentary evidence clearly establishes the role of the driver of Maruti Car in causing the accident, non- examination of the driver of the Truck is not the decisive factor in deciding the negligence.
4.2 Another contention which has been raised by learned advocate for the appellant is that Hiteshbhai V. Khambhayata, who was the brother-in-law of deceased Hina Khambhayata, cannot be considered as a dependent for claiming compensation. When the father-in-law of deceased Hina Khambhayata has expired during the pendency of claim petition, the claim petition deserves to be dismissed on the ground that cause does not survive and there are no dependents alive at the time of deciding Page 8 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined the claim petition.
5. Per contra, learned advocate for the respondents claimants has supported the award and submitted that no interference is called for by this Court as the learned Tribunal has rightly considered the evidence and the evidentiary value of the evidence produced on record. It is submitted that the Truck has collided with the Maruti Van on the opposite side of the road. Such fact has not been controverted by either owner or driver of Truck. The learned Tribunal has rightly held the driver of the Truck negligent to the extent of 80%. It is fairly contended by learned advocate for the respondents-claimants that the claimants has not challenged the award on fastening of negligence to the extent of 20% on the driver of the Maruti Van.
6. We have considered the submissions of learned advocates for the parties and perused the record and Page 9 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined proceedings. The learned Tribunal while considering the issue of negligence has observed that the driver of Truck has not been examined and adverse inference has been drawn. Only on the ground of non-examination of the driver of Truck, the learned Tribunal has held 80% negligence on the part of the driver of truck. At this stage, it would be profitable to refer Panchnama at Ex.36 as well as the sketch of the scene of the accident. It transpires that the vehicles in question are found lying on the Kacha road on the eastern side. The exact location of the Maruti Van is also found on the edge of the western side of the road which is exactly opposite side of the road on which the Maruti Van ought to have been driven. The claimants have contended that the offending Truck came from opposite direction and dashed with the Maruti Van which is contrary to the position of vehicles which are found in the Panchnama. When the panchnama clearly indicates the position of vehicles at the site of the accident, learned Page 10 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined Tribunal has faulted in ignoring such a vital piece of evidence while deciding the issue of negligence. When the Maruti Van is found on the extreme right edge of the road, a presumption can be drawn that the driver of Maruti Van has contributed more in the occurrence of accident. In the complaint at Ex.37, the complainant, who is the father-in-law of deceased Hina Khambhayata has stated that the front right side tyre of Maruti Van had burst, resultantly, his son lost control over the Maruti Van. In such facts and circumstances, attributing negligence of 80% on the part of the driver of Truck is against the evidence on record and in our opinion, the learned Tribunal has not dealt with question of negligence the way in which it should have been.
7. In cases arising as a result of an accident in which compensation is claimed, it is necessary for the claimant to establish negligence on the part of the other Page 11 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined vehicle. In a case of contributory negligence, the crucial question on which the liability depends would be whether either party could, by exercise of reasonable care have avoided the consequence of other's negligence. In the present case, whether the driver of Maruti Van tried to avoid the accident is missing. Similarly, the evidence is missing as to what steps the driver of the Truck took to avoid the accident. As per the complaint filed by the father of deceased of Maruti Van before the Police, that the right front side of the Maruti Van burst and because of such reason, his son lost control over the steering and the Van went on the extreme opposite side of the road and dashed with the Truck which was coming from opposite side is a sufficient evidence that the driver of Maruti Van has contributed more than 20% in the occurrence of accident. On assessment of the evidence and in the facts and circumstances of the case and looking at the Panchnama and sketch of the scene of accident, we are of Page 12 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined the opinion that the ratio of negligence of both the vehicles is required to be modified and we hold that both the vehicles are found negligent to the extent of 50% each in the occurrence of accident. We hold driver of the Maruti Van negligent to the extent of 50% and driver of the Truck negligent to the extent of 50% in the occurrence of accident.
8. The question of dependency is another issue which has been raised by learned advocate for the Insurance Company. Claim Petition No.777 of 2001 was originally filed by Vallabhbhai C. Khambhayata for her daughter-in-law-deceased Hina Khambhayata and Hiteshbhai V. Khambhayata, who is brother-in-law of the deceased Hina Khambhayata. After recording the oral deposition the father-in-law of Hina Khambhayata at Ex- 31, Vallabhbhai C. Khambhayata passed away on 12.01.2007. It is not the case made out by the claimants Page 13 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined that the brother-in-law of deceased was dependent upon Hina Khambhayata. Deceased was married and having his family. Brother-in-law Hiteshbhai Khambhayata has not come forward before the learned Tribunal and stated on oath that he is dependent of deceased Hina Khambhayata. In absence of this vital evidence, a married man having his own earnings cannot be said to be a dependent for the purpose of compensation. However, looking to a peculiar set of facts that the father who was claimant No.1 in the claim petition deposed before the learned Tribunal and thereafter unfortunately passed away, is in our opinion, held to be a dependent. The share of compensation of deceased father-in-law can be claimed by the claimant No.2 Hiteshbhai Khambhayata not as a dependent of deceased Hina Khambhayata but under the law of succession, the compensation being a movable property, claimant No.2 Hiteshbhai Khambhayata can get a share of Vallabhbhai Khambhayata - claimant No.1. Had Page 14 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025 NEUTRAL CITATION C/FA/2502/2010 JUDGMENT DATED: 16/01/2025 undefined Vallabhbhai Khambhayata been alive, the situation would have been different and the view expressed by us might have been different. Accordingly, claimant No.2 Hiteshbhai Khambhayata is entitled to compensation which he ought to get on account of an heir of deceased Vallabhai Khambhayata and not as a dependent of deceased Hina Khambhayata.
9. In view of the above discussions, the present First Appeal is partly allowed. Awarded compensation to be paid as per the ratio of negligence which has been held hereinabove. Award may be drawn accordingly.
10. Record and Proceedings be sent back to the concerned Court/Tribunal.
(BIREN VAISHNAV, J) (D. M. DESAI,J) MANOJ Page 15 of 15 Uploaded by MANOJ KUMAR(HC01092) on Fri Feb 07 2025 Downloaded on : Fri Feb 07 22:14:11 IST 2025