Gujarat High Court
Tata Aig General Insurance Co. Ltd vs Sanjaykumar Rayajibhai Parmar on 28 January, 2025
NEUTRAL CITATION
C/FA/3823/2024 ORDER DATED: 28/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3823 of 2024
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TATA AIG GENERAL INSURANCE CO. LTD.
Versus
SANJAYKUMAR RAYAJIBHAI PARMAR & ORS.
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Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 28/01/2025
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 11.12.2023 passed by the Motor Accident Claims Tribunal, Panchmahals at Godhra in Motor Accident Claim Petition No.415 of 2019.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 30.07.2019, the claimant was going towards home by riding Motorcycle No.GJ-6-CR-2475 and when he reached near the place of accident, one rickshaw bearing No.GJ-17-TT-8398 cme in rash and negligent manner and stopped on the middle of the road and due to that the motorcycle of the claimant which was coming behind dashed with it. As a result, the accident took place and claimant sustained severe injuries. Therefore, offence Page 1 of 6 Uploaded by GAURAV J THAKER(HC00951) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:23 IST 2025 NEUTRAL CITATION C/FA/3823/2024 ORDER DATED: 28/01/2025 undefined to that effect is registered before the Kalol Police Station vide FIR being I-C.R.No.73 of 2019. The claimant has filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.7,00,000/-. The learned Tribunal vide impugned judgment and award dated 11.12.2023 has granted compensation to the tune of Rs.3,14,070/-. Hence, the present appeal.
3. Heard learned advocates for the respective parties.
4. Learned advocate Ms.Kirti Pathak appearing for the appellant - Insurance Company shifting fault line of causing road accident upon the claimant would submit that learned Tribunal though relied upon judgment of Hon'ble Supreme Court in case of Nishan Singh and others vs. Oriental Insurance Company Limited - AIR 2018 SC 2118, did not notice the ratio correctly. She would further submit that it is a case where claimant was riding motorcycle in triple and dashed to the rickshaw from behind. The FIR, Panchnama and chargesheet is indicates that the claimant was self negligent in causing the road accident yet learned Tribunal erred in apportioning liability of 50% upon the driver of rickshaw. She would further submit that learned Tribunal has referred to Regulation 23 of the Road Regulation, 1988 but could not understand the same in its true perspective. The claimant cannot be given premium for his own fault. Secondly, learned advocate Ms.Pathak submits that learned Tribunal ought not to have taken rate of minimum wage as income of the claimant as the claimant has failed to prove that he was engaged in any business and therefore, income less than minimum wage is to be taken into consideration. She would Page 2 of 6 Uploaded by GAURAV J THAKER(HC00951) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:23 IST 2025 NEUTRAL CITATION C/FA/3823/2024 ORDER DATED: 28/01/2025 undefined further submit that learned Tribunal has misconstrued the ratio laid down in Meena Pawaia and others vs. Ashraf Ali and others - 2021 SCC Online SC 1083, while taking rate of minimum wage as in the said claimant was engineering student, however, since claimant has failed to produce any evidence of income, rate of minimum wage cannot be applied. Upon above submissions, she would submit to allow this appeal and to quash the impugned judgment and award and to dismiss the claim petition.
5. Per contra, learned advocate Mr.Nishit Bhalodi appearing for the claimant having referred to para 19 to 26 of the impugned judgment and award would submit that the rickshaw applied sudden break on the middle of the road and did not enter into witness box to depose and rebut the allegations levelled against him. He would further submit that Insurance Company has not done anything to secure presence of rickshaw driver to establish that claimant was negligent in causing the road accident. He would submit that learned Tribunal referred to Regulation No.23 and also the judgment of Hon'ble Supreme Court in case of Nishan Singh (supra) and apportioned 50% negligency to both drivers of the errant vehicles. As far as taking up of minimum wage of Rs.7900/- per month as income of the claimant, he would submit that in catena of judgments, the Hon'ble Supreme Court has held that in absence of any evidence to prove the income of the deceased, the rate of minimum wage prevalent at the relevant time be taken as yardstick to ascertain the income. Upon above submissions, he would submit to dismiss this appeal.
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6. I have heard learned advocates for both sides and perused the evidence produced on record. In the arguments, two issues are raised, firstly that whether learned Tribunal erred in apportioning 50% negligence to each driver of errant vehicle and secondly, whether the learned Tribunal erred in taking up rate of minimum wage for calculating compensation. Though learned advocate Ms.Pathak argued that driver of motorcycle did not keep sufficient distance and dashed with rickshaw, she could not point out why rickshaw driver stopped the vehicle on the middle of the road by applying sudden break. Learned Tribunal has also noted the conspicuous action of the rickshaw driver in not entering into the witness box and could not point out why he stopped rickshaw on middle of the Kalol Halol Highway road which is very busy road. Learned Tribunal referred to Regulation 23 and expect that claimant should keep distance from the rickshaw and therefore, rightly attributed 50% negligence to both drivers of the vehicles. Consequently, I see no reason to interfere with the finding of learned Tribunal with regard to attribution of 50% negligence to drivers of both vehicles.
7. One more argument which is canvassed by learned advocate Ms.Pathak that in the present case three persons were riding on the motorcycle and that is the reason to apportion 100% negligence on the claimant. I am failed to countenance such submission made by learned advocate for the Insurance Company. The issue is squarely decided by Hon'ble Supreme Court in case of Mohammed Siddique vs. National Insurance Company Limited - 2020 (3) SCC 57, held in para 13 as under:
Page 4 of 6 Uploaded by GAURAV J THAKER(HC00951) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:23 IST 2025NEUTRAL CITATION C/FA/3823/2024 ORDER DATED: 28/01/2025 undefined "13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim.
What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or Page 5 of 6 Uploaded by GAURAV J THAKER(HC00951) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:23 IST 2025 NEUTRAL CITATION C/FA/3823/2024 ORDER DATED: 28/01/2025 undefined upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance."
8. Insofar as second issue is concerned, again the argument is completely meritless. The Hon'ble Supreme Court in catena of decisions held that in absence of any evidence to prove the income of the claimant, rate of minimum wage prevalent at the time of road accident may be taken into consideration. Learned advocate Ms.Pathak again failed to point out why amount less than the rate of minimum wage is to be taken up for calculating compensation.
9. For the reasons stated hereinabove, the contentions of learned advocate Ms.Pathak have failed to substantiate. The appeal deserves no merit and requires 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 6 of 6 Uploaded by GAURAV J THAKER(HC00951) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:11:23 IST 2025