Gujarat High Court
Cholamandalam Ms General ... vs Dineshbhai B Bambhania on 9 December, 2021
Bench: R.M.Chhaya
C/FA/4192/2019 JUDGMENT DATED: 09/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4192 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 4192 of 2019
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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CHOLAMANDALAM MS GENERAL INSURANCE CO LTD VADODARA
Versus
DINESHBHAI B BAMBHANIA
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 7
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
MR. YOGENDRA THAKORE(3975) for the Defendant(s) No. 5
MR NISHIT A BHALODI(9597) for the Defendant(s) No. 8
NOTICE SERVED(4) for the Defendant(s) No. 2
RULE SERVED BY DS(65) for the Defendant(s) No. 4,6
RULE UNSERVED(68) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Page 1 of 10
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C/FA/4192/2019 JUDGMENT DATED: 09/12/2021
Date : 09/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Heard Mr. Vibhuti Nanavati, learned advocate
for the appellant, Mr. Rathin P. Raval,
learned advocate for respondent no.3, Mr.
Yogendra M. Thakore, learned advocate for
respondent no.5, Mr. Maulik J. Shelat, learned
advocate for respondent no.7 and Mr. Nishit
Bhalodi, learned advocate for respondent no.8-
original claimant. Though served, no one
appears for the other respondents. As the
liability is not in question which arises in
this appeal, presence of respondent no.1 is
not essential for deciding the present appeal.
We have called for the record and proceedings
and hence, with consent of the learned
advocates appearing for the respective
parties, the appeal is taken up for final
disposal forthwith.
2. Feeling aggrieved and dissatisfied by the
judgment and award dated 10.5.2019 passed by
the Motor Accident Claims Tribunal (Main),
Junagadh in MACP no.353 of 2016, the
appellant-insurance Company of one of the
luxury bus bearing registration no. RJ-39 PA-
2298 has preferred this appeal under Section
173 of the Motor Vehicles Act, 1988
(hereinafter referred to as "the Act").
C/FA/4192/2019 JUDGMENT DATED: 09/12/2021
3. Following facts emerge from the record of the
appeal which gives a vivid picture of the
accident which took place at wee hours at
04:00 a.m. on 19.4.2016, wherein three
vehicles were affected/damaged. As the record
unfolds, the luxury bus bearing registration
no. GJ-14 V-5343, which is insured by the
respondent no.3-Oriental Insurance Company
Ltd. and driven by respondent no.1, was coming
from Surat side and was proceeding towards
Bharuch, whereas, the luxury bus bearing
registration no. RJ-39 PA-2298 was being
driven from Bharuch side towards Surat. It
reveals from the record that the luxury bus
bearing registration no. RJ-39 PA-2298 was
coming from Surat and was to proceed towards
Vadodara side and the luxury bus bearing
registration no. GJ-14 V-5343 which was coming
from Vadodara side and was to proceed to
Surat, took a "U" turn on the right to
presumably as per the Panchnama with a purpose
to enter Sama Hotel. The luxury bus driven by
the driver of the luxury bus insured by the
appellant which was coming from Surat and was
proceeding towards Vadodara side, dashed with
luxury bus bearing registration no. GJ-14 V-
5343 which was taking a "U" turn. The impact
of the accident was such that both the luxury
buses went on wrong side of each of it and
C/FA/4192/2019 JUDGMENT DATED: 09/12/2021
dashed with the Container bearing registration
no. GJ-12 Y-6476. The impact of the accident
was such that the Container got detached from
the trailer and fell in the pit on the other
side.
4. The Tribunal, after appreciating the evidence
on record, and more particularly the Panchnama
Exh.57 and the FIR at Exh.56, came to the
conclusion that the drivers of both the luxury
busies i.e. luxury bus bearing registration
no. RJ-39 PA-2298 and the other luxury bus
insured by the respondent no.3 - Oriental
Insurance Company Ltd. bearing registration
no. GJ-14 V-5343 held liable and contributed
the negligence in the ratio of 40:60, while
exonerating the Container and arrived at a
finding that there was no fault on the part of
the driver of the Container and while partly
allowing the claim petition, the Tribunal
awarded a sum of Rs.15,28,355/- with
proportionate cost and interest at the rate of
8% per annum, inter-alia, providing that the
same would be recovered from opponents no.1 to
6 i.e. present appellant and respondents no.1
to 5 herein jointly and severally.
5. As the question which arises is only as
regards the negligence, the other findings as
regards quantum are not necessary to be
C/FA/4192/2019 JUDGMENT DATED: 09/12/2021
discussed and dealt with by this Court in this
appeal.
6. Mr. Vibhuti Nanavati, learned advocate for the
appellant-insurance Company has taken this
Court through the findings of the Tribunal as
regards the manner in which the accident has
occurred and the aspect of negligence as
discussed by the Tribunal, more particularly
in Paragraphs 13 to 16 of the impugned
judgment and award. Mr. Nanavati has also
relied upon the Panchnama at Exh.57. Mr.
Nanavati further contended that the Tribunal
has committed an error in coming to the
conclusion that the driver of the luxury bus
bearing registration no. RJ-39 PA-2298 insured
by the appellant was negligent to the extent
of 40%. Mr. Nanavati contended that the
Tribunal has not considered the aspect that
the accident occurred at wee hours in the
morning at about 04:00 a.m. and the driver of
the luxury bus which was taking "U" turn
should have been more careful while taking a
turn on the highway. Mr. Nanavati further
referring to Panchnama at Exh.57, contended
that the same reveals that the damage caused
to the bus driven by the driver of the bus
insured by the appellant clearly shows that
even while taking a "U" turn, the speed of the
luxury bus bearing registration no. GJ-14 V-
C/FA/4192/2019 JUDGMENT DATED: 09/12/2021
5343 was excessive and the driver of the said
luxury bus took "U" turn in a rash and
negligent manner. According to Mr. Nanavati,
Panchnama clearly reveals that the driver of
the luxury bus bearing registration no. RJ-39
PA-2298 was not at all negligent for the
accident. It was therefore contended by Mr.
Nanavati that the appeal be allowed and the
driver of the luxury bus bearing registration
no. GJ-14 V-5343 should be held to be solely
negligent for the accident.
7. Per contra, Mr. R.P. Raval, learned advocate
for respondent no.3 - insurance Company, the
insured of another luxury bus bearing
registration no. GJ-14 V-5343 relied upon the
same set of evidence i.e. FIR as well as
Panchnama at Exhs.56 and 57 respectively and
contended that the finding, as regards
negligence arrived at by the Tribunal, is
correct appreciation of the evidence on
record. Mr. Raval also explained to this Court
the manner in which the accident has occurred
and has contended that on the contrary, the
driver of the luxury bus bearing registration
no. RJ-39 PA-2298 was not at all careful and
it has hit the bus insured by the respondent
no.3 - insurance Company from behind which
shows that the speed of the luxury bus driven
by the insured driver of the insured being
C/FA/4192/2019 JUDGMENT DATED: 09/12/2021
luxury bus bearing registration no. RJ-39 PA-
2298 was so excessive in nature that it not
only damaged the bus driven by the luxury bus
bearing registration no. GJ-14 V-5343, but it
also damaged the Container. Mr. Raval
therefore contended that the appeal filed by
the appellant - insurance Company of luxury
bus being merit-less, deserves to be
dismissed.
8. Mr. Nishit Bhalodi, Mr. Yogendra Thakore and
Mr. Maulik Shelat, learned advocates appearing
for the respective respondents have submitted
that this Court may pass appropriate orders.
9. No other or further submissions, averments,
grounds and/or contentions are made by the
learned advocates appearing for the respective
parties.
10. On reappreciating the evidence in form of FIR
and Panchnama at Exhs.56 and 57 respectively
as well as the discussion and findings arrived
at by the Tribunal, reveal that the accident
has occurred at wee hours on a very busy
National Highway. The Panchnama clearly
reveals that the luxury bus bearing
registration no. GJ-14 V-5343 was taking a "U"
turn and the luxury bus bearing registration
C/FA/4192/2019 JUDGMENT DATED: 09/12/2021
no. RJ-39 PA-2298 which was coming from Surat
side, dashed with the luxury bus bearing
registration no. GJ-14 V-5343 almost on the
rear side of the said luxury bus. Upon
reappreciation of the evidence on record, it
clearly appears that the luxury bus bearing
registration no. GJ-14 V-5343, which has taken
"U" turn, had already started taking a "U"
turn and had traveled towards the other
direction and more than half of the luxury bus
was already in the movement of taking a turn.
The Panchnama reveals that luxury bus bearing
registration no. RJ-39 PA-2298 has dashed at
such a portion of the other luxury bus that it
clearly establishes the fact that the driver
of the luxury bus bearing registration no. RJ-
39 PA-2298 should have been vigilant enough to
go further. Upon reappreciation of the
evidence on record, this Court is of the
opinion that the driver of the luxury bus
bearing registration no. RJ-39 PA-2298 was not
correct in his judgment about the movement of
luxury bus bearing registration no. GJ-14 V-
5343. However, the same would not absolve the
driver of the luxury bus bearing registration
no. RJ-39 PA-2298 completely, as tried to be
canvassed by Mr. Nanavati, learned advocate
for the appellant. On verification of the
record and as observed by the Tribunal, though
drivers of both the vehicles were available,
C/FA/4192/2019 JUDGMENT DATED: 09/12/2021
the insurance Company has not examined the
same. The accident may have occurred at wee
hours, but that would not mean that while
driving the heavy vehicle like luxury bus,
driver of such bus is at luxury to have
excessive speed. Upon reappreciation of the
evidence on record and more particularly the
damage caused to the Container and other
luxury bus, in opinion of this Court clearly
establish the fact that both the vehicles were
being driven at an excessive speed. A portion
of the luxury bus bearing registration no. GJ-
14 V-5343 which is damaged and which is
instrumental in further damage to other
vehicles and more particularly, the factum
which is not in dispute that both the luxury
buses came in wrong side of each of the luxury
bus establishes that driver of both the luxury
buses were negligent.
11. Upon reappreciation of the evidence on record
and more particularly the manner in which the
accident has occurred, the findings arrived at
by the Tribunal of negligence to the effect
that driver of the luxury bus bearing
registration no. RJ-39 PA-2298 was negligent
to the extent of 40% is found to be proper and
no modification is required. The appeal is
therefore devoid of any merits and the same
C/FA/4192/2019 JUDGMENT DATED: 09/12/2021
stands dismissed. As the appeal is dismissed,
no further orders are required to be passed on
Civil Application. The amount, if any,
deposited by the appellant shall be disbursed
in the manner as provided by the Tribunal in
the impugned judgment and award. However,
there shall be no order as to costs in this
appeal. Registry is directed to remit the
record and proceedings back to the Tribunal
forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
Maulik
