Gujarat High Court
Oriental Insurance Co Ltd vs Ushaben Shankerrao Tavde on 6 December, 2021
Bench: R.M.Chhaya
C/FA/2452/2010 JUDGMENT DATED: 06/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2452 of 2010
With
R/FIRST APPEAL NO. 2453 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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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ORIENTAL INSURANCE CO LTD
Versus
USHABEN SHANKERRAO TAVDE & 3 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 1,2,3
RULE SERVED(64) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 06/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/2452/2010 JUDGMENT DATED: 06/12/2021
1. Feeling aggrieved and dissatisfied by the common
judgment and award dated 07.10.2009 passed by the
Motor Accident Claims Tribunal (Aux), Vadodara in
MACP No.586 and 953 of 1999, the insurance company
has preferred these appeals under Section 173 of the
Motor Vehicles Act, 1988 (hereinafter referred to as
the "Act"). As both the matters arise out of the
same accident and the same set of evidence is adduced
and relied upon by the parties, both the matters were
heard together and are decided by the common judgment
and order.
2. Heard Mr. Vibhuti Nanavati, learned advocate for
the insurance company in both the appeals and Mr.
Mohsin Hakim, learned advocate for the original
claimants in both the appeals. Though served, no one
appears for the other respondents. We have also
perused the original record and proceedings in both
the appeals.
3. The following facts emerge from the record of the
appeals -
3.1 That on 20.12.1998, the deceased Shankarrao
Baburao Tavde was going on his scooter bearing
registration no. GTM-8868 from Lalbaug to
Pratapnagar. At that time, near the fountain, on
rickshaw bearing registration no. GJ-6V-2479, being
driven in rash and negligent manner and in excessive
speed hit the deceased Kamlaben and dashed with the
scooter driven by Shankarrao. Both Kamlaben and
Shankarrao sustained injuries and died on the spot.
C/FA/2452/2010 JUDGMENT DATED: 06/12/2021
A complaint was registered with the jurisdictional
police station.
3.2 For the death of Shankarroa, the claimants
preferred claim petition under Section 166 of the Act
being MACP No. 586 of 1999 and claimed compensation
of Rs. 25,00,000/-. It was the say of the claimants
of MACP No. 586 of 1990 that deceased Shankarrao
Tavde died due to the injuries sustained in the
accident and that he was working as Driver in the
Railway and was earning Rs. 1,40,000/- p.a. It was
also contended by the claimants in the claim petition
that the deceased Shankarrao was 46 years old on the
date of the accident and was getting all the benefits
from the service like bonus, etc.
3.3 Similarly, claim petition being MACP No. 953/99
was preferred under Section 166 of the Act for the
death of Kamlaben and claimed compensation of
Rs.5,00,000/-. It was the contended by the claimants
that the deceased was earning Rs.3,000/- per month by
selling items like biscuits and confectioneries
outside Shreyas School and the deceased was 45 years
old on the date of the accident.
3.4 The claimants in both the appeals relied upon
oral as well as documentary evidence. One of the
claimant of MACP No. 586 of 1999, Ushaben Shankarrao
Tavde had deposed at exhibit 29 and one of the
claimant of MACP No.953 of 1999, Uttamchand Bandubhai
Mistri had deposed at exhibit 22. Witness RTO
Officer Mohammed Hanif Abdulgani Dabhoiwala had
C/FA/2452/2010 JUDGMENT DATED: 06/12/2021
deposed at exhibit 67. The claimants also relied
upon documentary evidence such as Complaint at
exhibit 31, panchnama of the place of incident at
exhibit 32, salary slip of deceased Shankarrao at
exhibit 35, P.M. Note of deceased Shankarrao at
exhibit 30, P.M. Note of deceased Kamlaben at exhibit
49.
3.5 The Tribunal after appreciating the evidence on
record, awarded compensation of Rs.9,59,040/- to the
claimants of MACP No. 586 of 1999 99 and
Rs.4,36,000/- to the claimants of MACP No. 953 of
1999. Being aggrieved by the same, insurance company
has preferred both the appeals.
4. Mr. Nanavati, learned counsel appearing for the
appellant contended that the Tribunal has misread the
evidence and has not properly appreciated the
evidence of the eye-witness and has also not
considered the FIR. Mr. Nanavati contended that the
deposition of the eye-witness Gaurang Shah at exhibit
45, is nothing but a got-up witness and even it was
contended that even though he was an educated person,
the FIR could have been registered immediately. It
was also contended by Mr. Nanavati that the accident
took place on 20.12.1998 whereas his evidence was
recorded after 2-3 months. Mr. Nanavati again
referring to the deposition of the witness at exhibit
45 contended that the said witness has also admitted
the fact that he has not seen the evidence adduced in
the criminal case. Mr. Nanavati further contended
that the charge-sheet papers were also brought on
C/FA/2452/2010 JUDGMENT DATED: 06/12/2021
record which does not inspire confidence in the
version of the so-called eye-witness. On the basis
of the aforesaid, Mr. Nanavati contended that the
very involvement of the vehicle is doubtful. Mr.
Nanavati also contended that the Tribunal has not
considered the evidence of the RTO Officer M.H.A.
Dabhoiwala, who was examined at Exhibit 67, who has
deposed that they did not have proper permit to ply
the vehicle. On the aforesaid grounds, it was
contended by Mr. Nanavati that both the appeals
deserve to be allowed.
5. Mr. Moshin Hakim, learned counsel appearing for
the original claimants contended that the claimants
have clearly proved that the vehicle rickshaw was
involved in the accident. Referring to the
deposition of Gaurang Shah, exhibit 45, it was
contended by Mr. Hakim that there is nothing on
record by way of any rebuttal that the vehicle was
not involved in the accident. Mr. Mohsin Hakim
contended that the very contention and ground raised
in the memo of the appeal as regards involvement is
without any basis. Referring to the deposition of
RTO Officer M.H.A. Dabhoiwala at exhibit 67, Mr.
Hakim contended that on the contrary, the said
witness has averred that no records are available.
According to Mr. Hakim, the insurance company has not
been able to prove the said fact. On the aforesaid
grounds, Mr. Hakim contended that both the appeals
being meritless, deserves to be dismissed.
6. No other or further submissions have been made
C/FA/2452/2010 JUDGMENT DATED: 06/12/2021
by the learned counsels appearing for the respective
parties.
7. Upon re-appreciating the evidence on record, it
clearly transpires that Gaurang Shah has posed
himself to be the eye-witness, exhibit 45. He has
deposed that how the accident has occurred. It is
also a matter of fact that the appellant insurance
company has not produced any contrary evidence as a
rebuttal of the said version of the eye-witness.
Only because the FIR was lodged late, it cannot be
said that the witness is not trustworthy or that he
is got-up. In addition to that, it is also found
that the owner of the vehicle has submitted his
written statement at exhibit 15 and 16, wherein it is
clearly deposed that the accident has taken place and
even the involvement of the said rickshaw is admitted
by the owner of the rickshaw. Upon re-appreciation
of the evidence on record, we find that the
contention raised by the learned counsel appearing
for the appellant insurance company that the rickshaw
is not involved in the accident on all the three sub-
grounds raised before us is without any basis and
hence, such contention as regards non-involvement of
the vehicle in question deserves to be negatived.
Upon re-appreciation of the evidence on record in
form of deposition of RTO Officer M.H.A. Dabhoiwala,
exhibit 67, on the contrary, we find that the he has
deposed before the Tribunal that no record is
available as the same is destroyed and in absence of
any proof, the appellants cannot be permitted to
raise the issue of permit and/or license. On both
C/FA/2452/2010 JUDGMENT DATED: 06/12/2021
the grounds, the appeals fail and both the appeals
deserve to be dismissed and are hereby dismissed.
However, there shall be no order as to costs. The
impugned judgment and award stands unaltered. The
Record and Proceedings be sent back to the Tribunal
forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
BIJOY B. PILLAI
