New India Assurance Co. Ltd vs Heirs Of Decd. Narendra Nandlal ...
2021 Latest Caselaw 4972 Guj

         C/FA/1260/2014                                           JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.               1260 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

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1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the
      fair copy of the judgment ?

4     Whether this case involves a substantial
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

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                 NEW INDIA ASSURANCE CO. LTD.
                             Versus
      HEIRS OF DECD. NARENDRA NANDLAL JOSHI & 4 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MS BHAVIKA H KOTECHA(2942) for the Defendant(s) No. 1,3,4
RULE SERVED(64) for the Defendant(s) No. 2,5
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                              Date : 01/04/2021

                                ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied by the judgment and award dated 06.09.2013 passed in MACP No. 156/2007 by the Motor Accident Claims Tribunal (Aux), Veraval, the insurance company

C/FA/1260/2014 JUDGMENT

has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act")

2. The following facts emerge from the record of the appeal ­

2.1 The accident took place on 22.04.2007 between truck bearing registration No. GJ­3V­ 9782 and Mazda bearing registration No. GJ­ 11X­9499. It is the case of the original claimants that deceased Narendra Nandlal Joshi was driving Mazda bearing registration No. GJ­ 11X­9499 and was passing through village Chhara. It is further the case of the respondents­original claimants that at that moment, truck bearing registration no. GJ­3V­ 9782 came from the opposite side being driven in rash and negligent manner and ultimately dashed with Mazda because of which the deceased sustained serious injuries and succumbed to the same.

2.2 It deserves to be noted that the other persons travelling in Mazda also sustained injuries. The FIR was lodged with the jurisdictional police station at exhibit 17. The Respondents­original claimant preferred claim petition under Section 163A of the Act and claimed compensation of Rs.5,00,000/­. The other persons who were injured in the same accident preferred claim petition under

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section 166 of the Act being MACP No. 210/07 to 213/07, 215/07 to 216/07. The learned Tribunal consolidated all the claim petitions and heard and disposed of the same by common judgment and award. The respondent­claimants were examined at exhibit 23 and the respondents­claimants also adduced documentary evidence such as FIR at exhibit 17, panchnama of the scene of accident at exhibit 18, inquest panchnama at exhibit 19, PM report at exhibit 20, FORM No. 54 at exhibit 21, Charge­ sheet at exhibit 22, RC Book of the truck at exhibit 55, driving license of the driver of the truck at exhibit 56, insurance policy of the truck at exhibit 57.

2.3 By the impugned common judgment and award, the Tribunal while allowing the claim petition, awarded a sum of Rs. 2,92,500/­ as compensation to the respondents with interest at the rate of 7.5% from the date of filing of the claim petition till its realisation. Being aggrieved by the impugned judgment and award, the insurance company has preferred this appeal.

3. Heard Mr. H.G. Mazmudar, learned advocate for the appellant and Ms. Bhavika Kotecha, learned advocate for the respondents­orig. Claimants. Though served, no one appears for the other respondents.

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4. Mr. Mazmudar, learned advocate appearing for the appellant has taken this Court through the factual matrix arising out of this appeal and has also taken this Court through the evidence on record, copies of which were supplied by the learned advocate for the appellant. Mr. Mazmudar contended that the Tribunal has not considered the aspect of negligence of the driver of the mazda who died in the accident. It was contended by Mr. Mazmudar that even though it was a claim petition under Section 163A of the Act, the Tribunal ought to have considered the negligence on the part of the deceased who was driving the Mazda. On the aforesaid ground, it was therefore contended by Mr. Mazmudar that the impugned judgment and award deserves to be modified on the ground of negligence alone by allowing the appeal as prayed for.

5. Ms. Bhavika Kotecha, learned advocate appearing for the original claimants supported the impugned judgment and award and submitted that the appeal being meritelss, deserves to be dismissed.

6. No other or further submissions have been made by the learned advocate appearing for the appellant.

7. It is an admitted position that the original claimants preferred an application under Section

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163A of the Act. It is not in dispute that the Tribunal after appreciation of the evidence on record, determined the income of the deceased who was engaged in the vocation of driving at Rs.2,250/­ per month. The contention raised by Mr. Mazmudar learned advocate for the appellant is no longer res integra. Similar issue to the effect whether in claim petition under Section 163A of the Act, is it open for the insurance company to raise defence for plea of negligence is considered by the Hon'ble Apex Court in the case of United India Insurance Co. Ltd. Vs. Sunil Kumar and Anr reported in (2019)12 SCC

398. The Hon'ble Apex Court has observed in paras 8 and 9 as under­

"8. From the above discussion, it is clear that grant of compensation under Section 163­A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163­A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163­A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163­A of the Act, namely, final compensation within a limited time frame on the basis of the

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structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163­A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163­A of the Act at par with the proceeding under Section 166 of the Act which would not only be self­contradictory but also defeat the very legislative intention.

9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163­A of the Act it is not open for the Insurer to raise any defence of negligence on the part of the victim."

8. Following the judgment of the Apex Court in the case of Sunil Kumar (supra), the contention raised by Mr. Mazmudar, learned advocate for the appellant that even in a claim petition under Section 163A of the Act, the Tribunal ought to have considered the negligence of the deceased, who was driving a Mazda deserves to be negatived outright. The appeal fails and the same stands dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA, J) BIJOY B. PILLAI