Gujarat High Court
National Insurance Company vs Panchal Taraben Arvindbhai ... on 22 December, 2021
Bench: R.M.Chhaya
C/FA/132/2009 JUDGMENT DATED: 22/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 132 of 2009
With
R/CROSS OBJECTION NO. 124 of 2013
In
FIRST APPEAL NO. 132 of 2009
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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NATIONAL INSURANCE COMPANY
Versus
PANCHAL TARABEN ARVINDBHAI L.R.OF PANCHAL A NARANBHAI & 6
other(s)
==========================================================
Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR JIGAR G GADHAVI(5613) for the Defendant(s) No. 1,2,3
MR JINESH H KAPADIA(5601) for the Defendant(s) No. 7
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 6
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
Page 1 of 8
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C/FA/132/2009 JUDGMENT DATED: 22/12/2021
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 22/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the common
judgement and award dated 16.7.2008 passed by Motor
Accident Claims Tribunal (Aux.), Mehsana in Claim Petition
No. 858/2001, the National Insurance Company of the Bajaj
Chetak Scooter - original respondent No.4 involved in the
accident has preferred this appeal under Section 173 of the
Motor Vehicles Act, 1988 ("the Act" for short) and the owner
of the scooter has preferred cross objections on the ground
negligence.
2. Following facts emerge from the record of this appeal:
2.1. That the accident took place on 3.5.2001. It is the case
of the original claimants that the deceased Girishkumar
Amrutlal Sanghvi and deceased Arvindbhai Naranbhai were
travelling on their Bajaj Chetak Scooter bearing registration
No.GJ-2-F-2822. It is further the case of the claimants that
when the scooter reached Palavasna Cross Road at about 9:00
a.m., a jeep bearing registration No.GJ-2-A-8615 came from
Mehsana side being driven in a rash and negligent manner.
The deceased Girishkumar sustained fatal injuries and
succumbed to the same on the road itself whereas deceased
Arvindbhai received head injuries and injuries on other parts of
the body and firstly taken to hospital at Mehsana and
thereafter to Ahmedabad. However, deceased Arvindbhai died
C/FA/132/2009 JUDGMENT DATED: 22/12/2021
on the way. The record also indicates that the driver of the
jeep immediately ran away. An FIR was lodged with Mehsana
Taluka Police Station being C.R. No.I-103/2001. The case of
the claimants was that deceased Arvindbhai was 50 years at
the time of accident and was earning Rs.8,000 as salary. The
claimants also relied upon documentary evidence such as FIR
at Exh.32.
1. Certified copy of Chargesheet No. 89/2001 of Exh.29
Mehsana Taluka Police Station
2. Certified copy of complaint dated 3.5.2001 of Exh.31
Vinodchandra Chimanlal Soni
3. Panchanama of scene of offence registered as Exh.32
C.R. No.I-103/2001 Mehsana Taluka Police
Station
4. Certified copy of inquest panchanama of Exh.33
deceased Girishkumar Sanghvi
5. Copy of Inquest panchanam of deceased Exh.34
Arvindkumar
6. P.M. Note of Girishkumar Sanghvi Exh.35
7. Original copy of driving license of Exh.36
Girishkumar Sanghvi
8. Xerox copy of Registration Book of Exh.37
Respondent No.1 Jeep GJ-2-A-8615
9. Driving licence of driver of the jeep Exh.38
10. Salary Slip of deceased Girishkumar Sanghvi Exh.48
of Kesil Health Product Ltd.
11. Confirm Letter of deceased Girishkumar Exh.49
Sanghvi of Kesil Health Product Ltd.
12. Letter of compensation review-2005 of Paresh Exh.50
Parmar of Kesil Health Product Ltd.
13. Letter of salary break-up of Kesil Health Exh.51
Product Ltd.
C/FA/132/2009 JUDGMENT DATED: 22/12/2021
14. P.M. Note of deceased Arvindbhai Naranbhai Exh.58
15. R.C. Book of Scooter GJ-2-F-2822 Exh.63
16. Insurance police of Scooter GJ-2-F-2822 Exh.64
17. Pay-slip of deceased Arvindbhai N. Panchal Exh.65
for the month of May-2005
18. Injury Certificate by Dr. Rajesh K. Patel of Exh.66
deceased Arvindbhai N. Panchal
19. CT /X-Ray Scan report of deceased Arvindbhai Exh.67
Panchal
20. Bill of X-ray of deceased Arvindbhai Panchal Exh.94
21. Bill of CT scan of deceased Arvindbhai Exh.95
Panchal
3. The Tribunal after appreciating the evidence on record
came to the conclusion that the driver of both the vehicles
were composite negligent and attributed 80% negligent upon
the driver of the jeep and 20% upon driver of the scooter and
while partly allowing the claim petition awarded a sum of
Rs.6,34,500/- with 7.5% interest from the date of filing of the
claim petition till its realization.
4. Being aggrieved and dissatisfied by the same, the
Insurance Company of the scooter has preferred this appeal
and cross objections are filed by the owner of the scooter.
5. Heard Dr. Rushang Mehta, learned advocate appearing for
the appellant - National Insurance Company, Mr. Jigar
Gadhavi, learned advocate for the original claimants, Ms.
Karuna Rahevar for the Oriental Insurance Company of the
jeep (Respondent No.6) and Mr. Jignesh Kapadia, learned
advocate for the owner of the scooter. As aforesaid, the
owner of the scooter has also filed cross objections in this
C/FA/132/2009 JUDGMENT DATED: 22/12/2021
appeal only on the ground of negligence and no ground of
quantum are raised in the cross objections neither and no
other grounds are raised even before this Court.
6. We have perused the oral record and proceedings.
7. Dr. Rushang Mehta, learned advocate for the Appellant -
National Insurance Company contended that the Tribunal has
committed an error in coming to the conclusion that the driver
of the scooter was also negligent to the extent of 20%.
Referring to the panchnam of the scene of occurrence at
Exh.32, it was contended by Dr. Mehta that the manner in
which the accident has occurred and the damage which is
shown to the jeep as per the panchnama clearly indicates that
the driver of the jeep was solely negligent. Dr. Mehta further
relying upon the policy of the scooter at Exh.64 contended that
it is act only policy and, therefore, the risk is not covered as
far as the claimants are concerned. Dr. Mehta also contended
that only the minimum amount of premium is paid by the
owner and no special coverage is found from the policy at
Exh.64 and, therefore, it was contended that the appellant -
Insurance Company be exonerated. In the aforesaid grounds,
Dr. Mehta, learned advocate contends that the appeal of the
Insurance Company of the scooter be allowed.
8. Per contra, Ms. Karuna Rahevar, learned advocate
appearing for the Insurance Company of the Jeep has opposed
this appeal and has submitted that even if the panchnama is
read, the deceased, driver of the scooter was equally liable and
negligent for the accident. Ms. Rahevar contended that on the
contrary the Tribunal has correctly appreciated the evidence on
C/FA/132/2009 JUDGMENT DATED: 22/12/2021
record and has come to the conclusion that driver of the jeep
was negligent to the extent of 80% and driver of the scooter
was negligent to the extent of 20%. According to Ms.
Rahevar, no modification is required. She further contended
that the aspect of the act only policy has not been proved by
the appellant before the Tribunal and therefore, the appeal
being meritless deserves to be dismissed.
9. Mr. Jigar Gadhavi, learned advocate for the original
claimants has also opposed this appeal.
10. Mr. Jignesh Kapadia, learned advocate for the owner of
the scooter has vehemently relied upon the panchnama at
Exh.32 and has submitted that the Tribunal has committed an
error in considering the negligence as the manner in which the
accident has taken place is appreciated based upon the
panchnama. The jeep was being driven on wrong side as it
was coming from Mehsana to Ahmedabad whereas the scooter
was going from Ahmedabad side to Mehsana side. Mr.
Kapadia, contended that the driver of the jeep was solely
negligent for the accident and the Tribunal has committed an
error in holding the driver of the scooter, that is the deceased
as negligent to the extent of 20%. In the aforesaid ground,
Mr. Kapadia, leaned advocate contended that the cross
objections be allowed.
11. No other and further submissions have been made by
learned advocates appearing for the parties.
12. As far as the act only policy is concerned, the fact
remains that the insurance company of the Bajaj Chetak
C/FA/132/2009 JUDGMENT DATED: 22/12/2021
Scooter at Exh.64 is an act only policy. The said aspect is not
considered by the Tribunal having recorded the same the
Tribunal has not even referred to the same.
13. The Other question which arises in this appeal is whether
the Tribunal has rightly assessed being negligent of both the
vehicles or not. In order to appreciate the said fact, it would
be appropriate to refer to the panchanma at Exh.32. The
panchnama clearly states that the jeep is damaged from the
right side of the driver and even the front bumper is damaged.
Upon re-appreciation of the evidence of the panchnama at Exh-
32 and considering the fact that the jeep was being driven
from Mehsana to Ahmedabad, it clearly appears that the jeep
was being driven in the wrong side. The part of the jeep
which is damaged as per the panchnama clearly shows that the
driver of the jeep left its side which was correct side and went
to other side because of which the accident had occurred. At
the same time, considering the damage to the scooter, clearly
indicates that having taken a wrong side that too with a speed
the scooter is totally damaged and the impact of the accident
was such that the deceased driver of the scooter hardly had
any opportunity to save themselves. Upon re-appreciation of
the evidence on record, we are of the opinion that the driver
of the jeep was solely negligent for the accident.
14. Having come to the aforesaid conclusion, the issue of act
only policy really does not require any further elucidation as
the Insurance Company of the jeep would be liable to satisfy
the award. However, considering the insurance policy at
Exh.64, which was act only policy even otherwise the
appellant - Insurance Company would not be liable for the
C/FA/132/2009 JUDGMENT DATED: 22/12/2021
claim raised by the claimant as it was act only policy.
Resultantly, the appeal filed by the Insurance Company is
allowed. Cross objections filed by the owner of the scooter is
also allowed. Respondent No.6-Oriental Insurance Company
Ltd. as insurer of the jeep and the owner of the jeep shall be
liable to satisfy the claim. The claimants have not preferred
any appeal or cross objections and therefore, the quantum part
is not necessary to be examined by this Court.
15. Resultantly, as the appeal is allowed, the Tribunal is
directed to refund the amount deposited by the appellant-
Insurance Company corresponding it share of 20% and
Respondent NO.6 is hereby directed to deposit such amount
along with interest and proportionate costs with the Tribunal
within a period of eight weeks from date of receipt of the
judgement of this Court. On such deposit being made, the
Tribunal shall refund the amount to the appellant.
16. Record and Proceedings be transmitted back to the
Tribunal forthwith. There shall be no order as to costs.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
