Gujarat High Court
Reliance General Insurance Company ... vs Harendrasinh Balvantsinh Zala on 31 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/4194/2022 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4194 of 2022
With
R/FIRST APPEAL NO. 4384 of 2022
With
R/FIRST APPEAL NO. 4388 of 2022
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
✓
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RELIANCE GENERAL INSURANCE COMPANY LIMITED
Versus
HARENDRASINH BALVANTSINH ZALA & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MAKBUL I MANSURI(2694) for the Defendant(s) No. 5
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 31/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Present appeals are filed by the respective appellants challenging the common judgment dated 16.02.2022 and award dated 25.02.2022 passed by the learned Motor Accident Claims Page 1 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025 NEUTRAL CITATION C/FA/4194/2022 JUDGMENT DATED: 31/01/2025 undefined Tribunal, (Aux.), Ahmedabad at Mirzapur. The First Appeal No.4194 of 2022 is emanating from MAC Petition No.1650 of 2010. The First Appeal No.4384 of 2022 is emanating from MAC Petition No.1797 of 2010 and the First Appeal No.4388 of 2022 is emanating from MAC Petition No.1798 of 2010.
2. Heard learned advocate Mr. Vibhuti Nanavati for the appellants, learned advocate Mr. Rathin P. Raval for respondent No.4 and learned advocate Mr. Makbul I. Mansuri for respondent No.5. Though served. None appeared for respondent Nos.1, 2 and 3.
3. Since all the appeals are emanating from the same facts and submissions, therefore, appeals are taken up for final disposal forthwith.
4. The brief facts of the case are as under:-
4.1. On 26.06.2010 at approximately 3.30 a.m. deceased Page 2 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025 NEUTRAL CITATION C/FA/4194/2022 JUDGMENT DATED: 31/01/2025 undefined Kiritkumar Panchal, deceased Manilal Ambalal Panchal and deceased Manjulaben Manilal Panchal were travelling from Shirdi to Godhara. When the car reached near Anandpura Village on Vadodara-Halol Highway, a truck bearing registration No.GJ-12-Y-9515 was stationed by the driver of the truck on the road without any care and caution as well as without any side signal or any barricade. The car bearing registration No.GJ-5AR-4389 was dashed and went under the rear part of that truck and resultantly, accident was occurred. In the said accident the deceased of MACP Nos1650/2010, 1797 of 2010 and 1798 of 2010 had sustained fatal injuries and during the course of treatment, they were died. The heirs of Manilal Panchal has filed MACP No.1797 of 2010 for a compensation of Rs.5,00,000/- before the learned Motor Accident Claim Tribunal, District Ahmedabad at Mirzapur and learned Tribunal has awarded Rs.5,76,000/- with interest @ 9% per annum from the date of claim petition till its realization. The heirs of Manjulaben Manilal Panchal has filed MACP No.1798 of 2010 Page 3 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025 NEUTRAL CITATION C/FA/4194/2022 JUDGMENT DATED: 31/01/2025 undefined for a compensation of Rs.5,00,000/- before the learned Motor Accident Claim Tribunal, District Panchmahals at Godhra and learned Tribunal has awarded Rs.7,42,000/- with interest @ 9% per annum from the date of claim petition till its realization. The heirs of Kiritkumar Manilal has filed MACP No.1650 of 2010 for a compensation of Rs.9,00,000/- before the learned Motor Accident Claim Tribunal, District Ahmedabad at Mirzapur and learned Tribunal has awarded Rs.10,94,000/- with interest @ 9% per annum from the date of claim petition till its realization.
The respective insurance companies i.e. opponent No.2 and 5 filed their respective written statements at Exhibit-19, 21 & 21 and Exhibit-28 and 27 respectively and contested the claim petition. Opponent Nos.1, 3 and 4 did not appear. After considering the oral as well as documentary evidences, the learned Tribunal allowed the claim petition against opponent Nos.1, 2 owner and insurance company of the truck and dismissed the petition against opponent Nos.3 to 5 i.e. the driver, owner and insurance company of Qualis Car. The Page 4 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025 NEUTRAL CITATION C/FA/4194/2022 JUDGMENT DATED: 31/01/2025 undefined learned Tribunal passed an award directing opponent Nos.1, 2 to pay compensation of Rs.5,76,000/-, Rs.7,42,000/- and Rs.10,94,000/- in MACP No.1797 of 2010, 1798 of 2010 and 1650 of 2010 respectively with interest at the rate of 9% per annum from the date of claim petition till its realization with proportionate costs. Being aggrieved and dissatisfied with the aforesaid judgment and award, the appellants of First Appeal No.4194 of 2022, First Appeal No.4384 of 2022 and First Appeal No.4388 of 2022 are before this Court.
5. Learned advocate for the appellants submitted that the finding recorded by the learned Tribunal on the issue of contributory negligence holding the truck solely negligent in causing the accident is against the oral as well as the documentary evidence. It is further submitted that if the truck driver had stopped the truck in the middle of the road, the entire front portion of the Qualis would have dashed with the rear portion of the truck, however, the Qualis driver was not injured Page 5 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025 NEUTRAL CITATION C/FA/4194/2022 JUDGMENT DATED: 31/01/2025 undefined in the said accident. The panchnama of the place of accident further reveals that the distance between the truck and the car was four feet after the impact. Which clearly indicates that the Qualis Car was in such a high speed that after the impact the Car was pushed back about four feet. As per the case of the claimants, the journey from Shirdi was started on 25.06.2010 in the morning and the accident took place on 26.06.2010 at 3:30 a.m. This means that the driver of the car was plying the car for more than 20 hours. Such a long driving would lead to fatigue to the driver of the car and because of the negligence of the car driver, the accident took place. It is further submitted that the learned Tribunal has completely overlooked the admission of the driver of the Qualis Car who has deposed that he saw the truck at the distance of 250 to 300 feet before the occurrence of the accident. The panchnama Exhibit-33 indicates that no brake marks are found on the road. When the driver of the car had seen the truck, he would have applied the brakes and could have avoided the accident. It is further submitted that the truck was Page 6 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025 NEUTRAL CITATION C/FA/4194/2022 JUDGMENT DATED: 31/01/2025 undefined standing on the road because of the burst of rear tyres on the conductor side. No other submissions except the above are canvassed by learned advocate for the appellant.
6. Per contra, learned advocate Mr. Makbul I. Mansuri for original claimant i.e. the present respondent No.5 supported the award and submitted that the offending truck was stationary on the middle of the road without any indicator, sings or signals. The fact which is pleaded by the driver of the truck in his oral deposition further strengthens the case of the claimants on the issue of negligence. It is further submitted that driver of the truck did not take care while stopping the truck on the middle of the road. It is further submitted that because of the full speed of the Qualis Car, the driver of the Qualis Car could not control the car and it dashed with the back portion of the truck in which the front part of the car was completely broken and damaged. It is further contended that the truck driver did not lodge any complaint. This conduct also establishes the fact that the driver Page 7 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025 NEUTRAL CITATION C/FA/4194/2022 JUDGMENT DATED: 31/01/2025 undefined of the truck was equally responsible for the occurrence of the accident. It is further submitted that the claimants vide Exhibit- 41 have produced the judgment and award dated 27.02.2015 of Motor Accident Claims Tribunal (Aux.) Panchmahahl at Godhra passed by a common order in MACP Nos.930, 931, 932 and 933 of 2010.
7. Learned advocate Mr. Rathin P. Raval for respondent No.4-United India Insurance Company submitted that the learned Tribunal has rightly decided the issue of negligence and exonerated opponent Nos.3 to 5 from the liability of compensation. The oral deposition of the driver of the truck and the panchnama Exhibit-33 indicates that the truck driver was negligent in stopping the truck in the middle of the road without any indicator, sign or signal. It is further submitted that the other claimants who sustained injuries in the said accident has also deposed that the truck driver was negligent in the occurrence of accident. Learned advocate for the opponent-Insurance Page 8 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025 NEUTRAL CITATION C/FA/4194/2022 JUDGMENT DATED: 31/01/2025 undefined Company has relied upon Sections 121, 122 and 126 of the Motor Vehicles Act and Rule No.15 of Road Regulations, 1989.
8. We have considered the submissions of the learned advocates for the parties and also perused the record and proceedings. The learned Tribunal has partly allowed the claim petition by exonerating opponent Nos.3 to 5 i.e. owner, driver and insurance company of the Qualis Car. The only question which is under consideration is on the basis of the evidence on record whether negligence can be attributed solely on the shoulder of the truck driver or not. Allegations and counter- allegations are levelled by the drivers of the respective vehicles in shirking away the responsibility of the occurrence of the accident. As per the panchnama Exhibit-33, the width of the road is 22 feet and there are no brakemarks on the road. The claimants of all the claim petitions have stated that the driver of the Qualis Car was rash and negligent and was plying he Qualis Car at an excessive speed. In absence of any material to indicate Page 9 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025 NEUTRAL CITATION C/FA/4194/2022 JUDGMENT DATED: 31/01/2025 undefined any steps or actions being taken by the driver of the Qualis Car in avoiding the accident, in our view, the learned Tribunal has committed an error in not holding composite negligence of both the drivers in the occurrence of accident. The fact which has been observed by the learned Tribunal that the driver of the Qualis Car was not injured in the accident may be because, he would have tried to take the car on the right hand side of the road. The panchnama Exhibit-33 further reveals that the distance between the rear part of the truck and the Qualis Car was four feet. The panchnama supports the version of the truck driver, which indicates that the rear side wheels on the conductor side were found in burst condition. The condition of the Qualis Car also indicates the force at which the car would have dashed with the rear portion of the truck. Therefore, considering the panchnama as well as the version of the claimants, it is found that both the drivers were negligent. Now the question remains as to which driver of the offending vehicles has contributed more in the occurrence of the accident. On the Page 10 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025 NEUTRAL CITATION C/FA/4194/2022 JUDGMENT DATED: 31/01/2025 undefined basis of the evidence and the discussions made above, we are of the view that the driver of the truck has contributed 70% in the occurrence of accident and the driver of the Qualis Car has contributed 30% in the occurrence of the accident.
9. Thus, First Appeals are partly allowed. The impugned judgment and award is modified to the extent that original opponents are jointly and severally liable to pay the compensation to the claimants in the proportion of 70% and 30% respectively. The appellant-Insurance Company is also entitled to refund of excess amount of compensation that has been deposited before the learned Tribunal. The learned Tribunal shall refund the excess compensation to the appellants. Rest of the award remains unaltered. No order as to costs. Record and proceedings to be sent back forthwith.
(BIREN VAISHNAV, J) (D. M. DESAI,J) RINKU MALI Page 11 of 11 Uploaded by RINKU MALI(HC01574) on Mon Feb 03 2025 Downloaded on : Mon Feb 03 22:04:23 IST 2025