New India Assurance Company ... vs Farjana Wd/O. Yusuf Daud Ibrahim
2021 Latest Caselaw 18601 Guj

     C/FA/4121/2009                               JUDGMENT DATED: 21/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4121 of 2009

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1    Whether Reporters of Local Papers may be allowed No
     to see the judgment ?

2    To be referred to the Reporter or not ?                    Yes

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

4    Whether this case involves a substantial question No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                NEW INDIA ASSURANCE COMPANY LIMITED
                               Versus
             FARJANA WD/O. YUSUF DAUD IBRAHIM & 10 other(s)
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 11
MR HG MAZMUDAR(1194) for the Defendant(s) No. 11
MR MTM HAKIM(1190) for the Defendant(s) No. 1,6,7
RULE SERVED(64) for the Defendant(s) No. 10,2,3,4,5,8,9
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 21/12/2021

                             ORAL JUDGMENT

1. The present appeal is filed by the Insurance Company challenging the impugned judgment and award passed by the Motor Accident Claims Tribunal (Auxi.), Surat dated 31.07.2009 below Exh. 57 in MACP No. 687 of 1993, whereby the Tribunal

C/FA/4121/2009 JUDGMENT DATED: 21/12/2021

has awarded a sum of Rs. 2,37,600/- with interest at the rate of 7.5% p.a. from the date of the claim petition till the date of realization to the respondents No. 1 to 7.

2. The brief facts of the present case are as under.

2.1 On 19.12.1990, the deceased Yusufbhai Daud Ibrahim was going to highway from Kausama village in his truck bearing registration No. GJ-16-T-6621, dashed with the other vehicle. It is the case of the complainant that the deceased head-on collision between two trucks and because of that accident, the deceased was died due to serious injuries sustained by him.

3. Learned advocate for the appellant has submitted that the Tribunal has committed an error while appreciating the evidence of eye witness namely cleaner of the truck wherein the deceased was the driver. It is also further contended that the Tribunal has committed an error by awarding interest at the rate of 7.5% per annum from the date of the claim petition till the date of realization. As the Insurance Company was joined as party respondent much belated stage, therefore, the liability to pay the interest is to be considered from the date of their joining. It is also contended by the learned advocate for the appellant that while considering the negligency, the Tribunal has committed a serious error.

4. As against the submission made by the learned advocate for the appellant, Mr. M.T.M. Hakim, learned advocate for the respondents has submitted that the Tribunal has rightly passed the impugned judgment and award and no interference is

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required to be called for.

5. So far as the contention raised by the learned advocate for the appellant about the contributory of negligency, learned advocate for the respondent - claimants has relied upon the judgment of this Court in the case of Gujarat State Road Transport Corporation Vs. Kamlaben Valjibhai Vora reported in (2001) 3 GLR 2528. In the case of Kamlaben Valjibhai Vora (supra), this Court has observed in Para-12 as under:

"(12) Therefore, the first question which is required to be seriously examined is with regard to the cause of accident, accountability and the issue of rashness and negligence pleaded by the claimants and challenged by the appellant. Undoubtedly, the issue of negligence is an important and integral part of branch of Law of Tort. The burden of proving the negligence is on the party, like that, the claimant or the plaintiff who asserts it. Such a party, therefore, ought to prove the causation. It is not for the wrong-doer to excuse himself by proving that accident was inevitable and due to no negligence of his part. It is, therefore, the person who suffers the harm or injury to prove affirmatively that it was due to the negligence of the tort-feasor or the other side or the defendant, as the case may be. Such a person has to produce reasonable evidence that the accident was the outcome of the negligence of the other side or in a case of road accident, the driver of the vehicle. If primary facts are, successfully, constituted by the evidence of the person wronged or by the person who has become the victim of tort, it is for the alleged tort-feasor or the other side to explain the circumstances, under which the questioned accident occurred. It is not necessary for the plaintiff or the claimant to show that the defendant or the tort-feasor should be, fully, guilty of negligence. The negligence could be established even on the touchstone and yardstick of preponderance of probability. In a case of civil liability, the onus of proof of prima facie showing an element of negligence on the part of the tort-feasor or the other side will shift the onus on the other side to explain the circumstances which led to the tortious act or the road accident. At times, direct evidence is seldom obtainable to substantiate the proposition of the plea of negligence for variety of reasons. It is in this context, to mitigate the hardship of doctrine of "res ipsa loquitur" has been evolved in the law of tort, which, in other words would mean,

C/FA/4121/2009 JUDGMENT DATED: 21/12/2021

things speak themselves. It is, in this context, in common law of tort, this doctrine has been recognised and very well followed."

He has also relied upon the judgment of this Court in the case of Oriental Insurance Company Ltd. Vs. Aaminaben Karim and others reported in 2001 2 GLR 1108. In the case of Aaminaben Karim (supra), this Court has also observed in Para- 8 as under:

"8. Plain reading of the opening words "no sum" under the provision has to be strictly interpreted. If this is the intention of the legislature that no sum is payable, then, it is difficult to understand the logic that the compensation is payable by the Insurance Company but not interest. What is the intention of the legislature in enacting this provision is that if the notice is not given to the Insurance Company, the Insurance Company has a right to approach the Tribunal for impleadment and after the Insurance Company is impleaded, it can defend the action on the grounds enumerated under this sub-section. Learned single Judge has not taken care of the provisions of Section 149(2) of the Act, and therefore, we are unable to accept the contention of the learned counsel for the appellant that the interest is not payable by the Insurance Company for the period the Insurance Company was not impleaded."

Learned advocate for the respondents has further relied on the judgment of the Hon'ble Apex Court in the case of Syed Sadiq and others Vs. Divisional Manager, United India Insurance Company Ltd. reported in (2014) 2 SCC 735. In the case of Syed Sadiq (supra), the Supreme Court has also observed in Para-29 as under:

"29. On the matter of extent of contribution to the accident, it is held by the Tribunal that the appellants/claimants herein should have taken utmost care while moving on the highway. Looking at the spot of the accident, the Tribunal concluded that the appellants/claimants were moving on the middle of the road which led to the accident. Therefore, the Tribunal concluded that though the tractor has been charge sheeted under sections 279 and 338 of IPC, but given the facts and

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circumstances of the case, the appellants/claimants also contributed to the accident to the extent of 25%. The High Court without assigning any reason concurred with the findings of the Tribunal with respect to contributory negligence. We find it pertinent to observe that both the Tribunal and the High Court erred in holding the appellants/ claimants in these appeals liable for contributory negligence. The Tribunal arrived at the above conclusion only on the basis of the fact that the accident took place in the middle of the road in the absence of any evidence to prove the same. Therefore, we are inclined to hold that the contribution of the appellants/claimants in the accident is not proved by the respondents by producing evidence and therefore, the finding of the Tribunal regarding contributory negligence, which has been upheld by the High Court, is set aside."

6. I have heard Mr. Palak Thakker, learned advocate for the appellant - Insurance Company and Mr. Hakim, learned advocate for the respondent Nos. 1, 6 & 7. Though served, none appears on behalf of the rest of the respondents.

7. Considering the facts of the present case and the submissions made by the learned advocates for the respective parties, and considering the ratio laid down by the Hon'ble Apex Court as well as this Court, I am of the view that the present appeal deserves to be dismissed.

8. In view of above, the present appeal is dismissed. The impugned judgment and award passed by the Motor Accident Claims Tribunal (Auxi.), Surat dated 31.07.2009 below Exh. 57 in MACP No. 687 of 1993 is hereby confirmed.

Record and proceedings be sent back to the concerned Tribunal forthwith.

(HEMANT M. PRACHCHHAK,J) SALIM/