Gujarat High Court
Oriental Insurance Co Ltd Thro' ... vs Jayantibhai Keshabhai Patel on 21 January, 2025
NEUTRAL CITATION
C/FA/2468/2010 ORDER DATED: 21/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2468 of 2010
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ORIENTAL INSURANCE CO LTD THRO' MACT-HUB
Versus
JAYANTIBHAI KESHABHAI PATEL & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/
REPRESTENTATIVES for the Defendant(s) No. 1
MR PARESH M DARJI(3700) for the Defendant(s) No. 1.1,1.2,1.3
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 21/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company being aggrieved and dissatisfied with the judgment and award dated 11.03.2010 passed by the Motor Accident Claims Tribunal, Gandhinagar in Motor Accident Claim Petition No.508 of 2005.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 18.08.2005, the claimant was going on motorcycle No.GJ-1-BN-
4077 towards Valiyampura and when he reached near the place of accident, opponent No.1 came with his Splendor motorcycle No.GJ-18-K-2601 in rash and negligent manner and dashed with the motorcycle of the claimant. As a result, the accident took place and the claimant sustained severe injuries. The Page 1 of 5 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:17:22 IST 2025 NEUTRAL CITATION C/FA/2468/2010 ORDER DATED: 21/01/2025 undefined claimant has filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.5,00,000/-. The learned Tribunal vide impugned judgment and award dated 11.03.2010 has granted compensation to the tune of Rs.3,55,050/-. Hence, the present appeal.
3. Limiting his arguments, learned advocate Mr.Vibhuti Nanavati appearing for the appellant submits that the accident took place between vehicle of equal nature and in head on collusion manner and yet learned Tribunal fastened liability of the driver of Splendor motorcycle No.GJ-18-K-2601 to the extent of 90% and the claimant was riding the motorcycle No.GJ-1-BN- 4077 has been attribute only 10% negligency. Therefore, there is a clear error on the part of the learned Tribunal in assessing the issue of contributory negligence. Learned advocate Mr.Nanavati also submits that learned Tribunal erred in granting compensation under the head of medicines and medical treatment more particularly when no medical bills are produced on record before learned Tribunal and no explanation has been offered that why original bills are not produce excepting saying that they are missing. Mainly upon above submissions, he submits to allow this appeal. He did not make any other and further submission.
4. Learned advocate Mr.Paresh Darji appearing for the original claimant refers to the finding of the learned Tribunal in para 9 and 10 an submits that learned Tribunal has not committed any error in fastening liability to the tune of 90% to the driver of the Splendor motorcycle as FIR and chargesheet are filed against him and he did not enter into witness box to rebut Page 2 of 5 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:17:22 IST 2025 NEUTRAL CITATION C/FA/2468/2010 ORDER DATED: 21/01/2025 undefined the evidence and therefore, the finding of the learned Tribunal need not be disturbed. Upon above submission, he submits to dismiss this appeal.
5. Having heard learned advocates for both sides and having examined the evidence from the record and proceedings, firstly let me go through the para 9 and 10 of the impugned judgment and award of the learned Tribunal whereby learned Tribunal discussed the issue of contributory negligence, which reads as under :
"9] First of all the First Information Report Exh.35 lodged by one Narendrakumar Jayantilal Patel, son of the present claimant, would reveal that an accident was occurred while his father was returning towards home from village Talod and due to rash and negligent driving on the part of the vehicle Motor cycle bearing No.GJ- 18- K-2601. However, the informant had not seen the accident personally. In such circumstances, the panchnama of the scene of accident Exh.37 is required to be referred. On perusal of the panchnama of the scene of incident, the road is from village Talod to Valuyampura leading from East to West. The motor cycle bearing No.GJ-l-BN-4077 lying on the Northern and Southern side of the road, caused clamage to right side leg yard and also the side signal was broken down and caused damage to an extent of Rs.1,000/-.
10] It is also an admitted fact that an accident was occurred at the bend road, in such circumstances, from the above materials on record as per Charge sheet Mark 31/8, it would reveal that the driver of the vehicle motor cycle bearing No.gj18-K-2601 is much more negligent for the happening of the accident extent to 90%. While an accident was occurred at the bend road, the claimant used to take turn. In such circumstances, if he had been taken a slight care to avoid an accident then in that case, the mishap could have avoided, but he did not take such a care at the relevant time of accident. Thus, I am Page 3 of 5 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:17:22 IST 2025 NEUTRAL CITATION C/FA/2468/2010 ORDER DATED: 21/01/2025 undefined of the opinion that claimant himself is also negligent for the happening of an accident extent to 10%. Therefore, from the above discussion, I answer issue no.1 accordingly."
6. Notably, the claim petition filed by the claimant had gone uncontested as the Insurance Company who was served with the process did not contest the claim petition by filing written statement nor has cross-examined any of the witness of the claimant including the claimant. Admittedly, the FIR and chargesheet are filed against the driver of motorcycle No.GJ-18- K-2601, who did not enter into the witness box. The claimant entered into the witness box as PW-1 (Exhibit-32) and levelled allegations of causing road accident against driver of other offending vehicle. The oral evidence placed on record by the claimant is fully supported by the documentary evidence i.e. FIR and panchnama. In case of National Insurance Company Limited vs. Chamundeswari - 2021 (18) SCC 596, the Hon'ble Supreme Court directed that the evidence led before the learned Tribunal weight more than the FIR and panchnama. It is held by the Hon'ble Apex Court that even the statement made on oath is contrary to FIR and panchnama, the statement made on oath before the Court values more. In the present case even the police record is not supporting the case of the Insurance Company. Learned Tribunal having assessed all these aspects attributed 90% negligence to the driver of Splendor motorcycle and 10% negligence to the claimant which finding according to this Court is arrived at by the learned Tribunal based upon evidence before it and it does not warrant any interference.
Page 4 of 5 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:17:22 IST 2025 NEUTRAL CITATION C/FA/2468/2010 ORDER DATED: 21/01/2025 undefined 7. The second contention raised by learned advocate
Mr.Nanavati that in absence of original medical bills produced, the learned Tribunal erred in granting compensation under the head of medicines and medical treatment at Rs.1,19,724/-. Before the learned Tribunal the claimant has examined Dr.Jyotindra Pandit as PW-3 at Exhibit-60 who had treated the claimant. In his cross-examination, he has identified the copy of the bills produced at Mark-31/7, they are in total 63 numbers and also stated on oath that he has certified all these bills. Looking to this, learned Tribunal has not committed any error in granting the compensation under the head of medicines and medical treatment.
8. For the reasons state hereinabove, the appeal sans merit and deserves to be dismissed. It is, accordingly, dismissed. Registry is directed to send back the record and proceedings to the concerned Tribunal, forthwith.
(J. C. DOSHI, J) GAURAV J THAKER Page 5 of 5 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:17:22 IST 2025