Gujarat High Court
New India Assurance Co Ltd vs Lallubhai Balubhai Chaudhari on 25 February, 2021
Bench: Mr. Justice R.M.Chhaya, R.P.Dholaria
C/FA/2954/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2954 of 2008
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C/FA/2954/2008 JUDGMENT
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA
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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
LALLUBHAI BALUBHAI CHAUDHARI & 5 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 1
MR AMIT V THAKKAR(3073) for the Defendant(s) No. 4,5,6
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 3
RULE SERVED BY DS(65) for the Defendant(s) No. 2
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C/FA/2954/2008 JUDGMENT
CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA
Date : 25/02/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the common
judgment and award rendered by the Motor
Accident Claims Tribunal, Vyara, Dist. Surat
dated 26.10.2007 passed in Motor Accident Claims
Petition No. 193 of 2002 and allied claim
petitions, the insurance company has preferred
these appeals under section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as
the "Act").
2. All these appeals relate to the same accident
and same set of evidence was adduced before the
learned Tribunal and hence, all the appeals were
heard together and are disposed of by this
common judgment and order.
3. The following facts emerge from the record of
the appeals
3.1 That the accident took place between the
express ST bus bearing registration no. GJ18
V6684 and truck(dumper) bearing registration
No. GJ19T506 on 09.01.2002 at about 10.30
hours near Mypur village abutting on Surat
Dhulia National Highway. The accident was so
C/FA/2954/2008 JUDGMENT
severe that 24 persons travelling in the ST
bus died and 8 persons sustained injuries,
which resulted into permanent partial
disability. The record indicates that the
driver of the ST bus died on the spot. The
record further indicates that two claim
petitions out of the same accident were filed
by the claimants being MACP No. 308 and 309 of
2002 and the same came to be decided on
24.08.2005. The respondentsoriginal
claimants filed different claim petitions
under section 166 of the Act and claimed
compensation under different heads and of
different quantum. The learned Tribunal
clubbed all the claim petitions together and
treated MACP No. 193 of 2002 as the main claim
petition. The claimants adduced oral as well
as documentary evidence in each of the claim
petition.
3.2 Ultimately, after appreciating the evidence
on record led by the claimants, both oral as
well as documentary, including the eye
witness, the Tribunal was pleased to partly
allow the claim petitions. As per the record
of the appellants, Claim Petitions No. 10/02,
328/02 and 349/02 came to be withdrawn. The
Tribunal while partly allowing the claim
petitions, came to the conclusion that the
driver of the truck was solely responsible for
the accident and awarded different
C/FA/2954/2008 JUDGMENT
compensation as observed in para 307 of the
impugned common judgment and award. Being
aggrieved by the same, the present appeals are
filed by the insurance company.
4. Heard Mr. Vibhuti Nanavati, learned advocate for
the appellant in all the appeals, Ms. Vasavdatta
Bhatt, learned advocate for the ST Corporation
in all the appeals and Mr. Amit Thakkar, Mr.
Hiren Modi, and Mr. N.V. Gandhi, learned
advocate for the respective parties.
5. Mr. Vibhuti Nanavati, learned advocate appearing
for the appellant has taken this Court through
the factual matrix arising out of these appeals
and has raised the following contentions
1) Relying upon the FIR and panchnama at exhibit 26
and 27 respectively, it was contended by Mr.
Nanavati that the Tribunal has committed an
error in coming to the conclusion that the
driver of the Truck was solely negligent in
causing the accident. Mr. Nanavati further
relying upon the panchnama, contended that the
manner in which the accident has occurred, that
too on a national highway, and more particularly
according to Mr. Nanavati, the accident has
taken place in the middle of the road while the
truck was standing facing northwest direction
and ST bus was facing southeast direction. Mr.
Nanavati contended that the ST bus was totally
cut off at the driver side from the front side
C/FA/2954/2008 JUDGMENT
to middle of the bus and as per the panchnama,
the rear wheels on conductor side was below the
side road and the back side of the driver side
was on the edge of the road. According to Mr.
Nanavati, the manner in which the accident has
occurred, the ST bus first dashed with the
dumper and thereafter dashed with the Tata Sumo
and motor cycle, both coming from the opposite
direction.
2) Mr. Nanavati further contended that the Tribunal
has committed an error in appreciating the
evidence in form of panchnama and has totally
disregarded the manner in which the accident has
occurred and resultantly, has committed an error
in coming to the conclusion that the driver of
the dumper was solely negligent.
3) Mr. Nanavati further contended that the learned
Tribunal has wrongly relied upon the judgment of
this Court reported in the case of United India
Insurance Company Ltd. Vs. Laljibhai and Ors.
reported in 2007(1) GLR 633 and the Tribunal has
committed an error in attributing the sole
negligence on the part of driver of the
truck(dumper) bearing Registration No. GJ19T
506, which was insured with the appellant
insurance company.
4) Mr. Nanavati further contended that the Tribunal
has also erred in considering the prospective
income and has awarded excessive compensation in
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each of these appeals, which deserves to be
sliced down.
On the aforesaid grounds, Mr. Nanavati, learned
advocate submitted that the appeals be allowed and
the common judgment and award be modified on the
ground of negligence as well as on the ground of
quantum in each of the appeals.
6. Per contra, the learned advocates appearing for
the respective claimants have opposed the appeal
and have supported the impugned judgment and
award. It was contended by the learned
advocates appearing for the claimants that it is
a matter of fact that the appellant insurance
company has not challenged the finding of the
Tribunal given in earlier two claim petitions
being MACP No. 308 and 309 of 2002 decided on
24.08.2005 wherein the Tribunal has come to the
conclusion that the driver of the truck involved
in the accident was solely negligent for the
accident and therefore, the appellant now cannot
be permitted to raise that issue having accepted
the judgment and award rendered by the Tribunal
in MACP No. 308 and 309 of 2002. It was
contended by the learned advocates appearing for
the claimants that the Tribunal has rightly
relied upon the judgment of this Court in the
case of Lajibhai (supra) and the appeals being
meritless, deserves to be dismissed.
7. Ms. Vasavdatta Bhatt, learned advocate appearing
C/FA/2954/2008 JUDGMENT
for the ST Corporation submitted that the
findings arrived at by the Tribunal is based
upon the true and correct appreciation of the
evidence on record and the appeals being
meritless, deserve to be dismissed.
8. No other or further submissions, grounds or
contentions have been raised by the learned
advocates appearing for the respective parties.
9. As far as the question of negligence is
concerned, the same FIR and the same panchnama
came to be examined by the Tribunal in MACP No.
308 and 309 of 2002, which came to be partly
allowed by the Motor Accident Claims Tribunal,
Ahmedabad (Rural) vide judgment and award dated
24.08.2005. As observed by the Tribunal in the
impugned judgment and award, it is a matter of
fact that the finding arrived at by the Tribunal
in the earlier two claim petitions as regards
negligence is accepted by the appellant
insurance company. The record indicates that
the accident, involvement of the vehicles, place
of incident, and time is not disputed by any
parties to the claim petition. Upon re
appreciation of the evidence on record, it
bornes out that the driver of the bus died in
the accident and the driver of the truck also
died during the pendency of the claim petitions.
It is recorded by the Tribunal that even the
cleaner of the truck was sent the summons, who
C/FA/2954/2008 JUDGMENT
has chosen not to appear before the Court and
the panchnama at exhibit 27 was only the basis
of the evidence. Upon reappreciating of the
evidence, the conclusion was arrived at by the
Tribunal that the truck went on the wrong side
and the bus was on the correct side. It further
appears from the evidence on record that the
truck went on wrong side while overtaking and
dashed with the bus.
10. Upon reappreciation of the evidence on
record, we find that the Tribunal has correctly
appreciated the evidence in form of panchnama
and has correctly come to the conclusion that
the driver of the truck was solely negligent. It
is also an admitted position that in the earlier
claim petitions being MACP No. 308 and 309 of
2002 which came to be partly allowed by the
Motor Accident Claims Tribunal, Ahmedabad
(Rural) vide judgment and award dated
24.08.2005, has become final and the learned
Tribunal has rightly relied upon the decision of
this Court in the case of Laljibhai (supra). The
principle of res judicata will apply in the
instant case as the issue of negligence is
already decided by the Tribunal in the earlier
claim petitions and the appellant cannot now be
permitted to plea de novo. It is a matter of
fact that the question at issue and the accident
and the manner in which the accident has
occurred is the same accident which was earlier
C/FA/2954/2008 JUDGMENT
considered by the Tribunal, which has become
final. In light of the aforesaid therefore, the
contentions raised by Mr.Nanavati as regards
negligence does not deserve any merits and the
same deserves to be negatived.
11. Similarly, the question of quantum raised by Mr.
Nanavati is covered by the judgment of the Apex
Court in the case of National Insurance Company
Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC
680. At this stage, it may be noted that Mr.
Nanavati press into service the chart given in
one of the appeals, however, if the ratio laid
down by the Apex Court in the case of Pranay
Sethi(supra) is made applicable, there would not
be any difference. Upon reappreciation of the
evidence on record and the findings of the
Tribunal on quantum in each of the appeals, this
Court is of the opinion that the learned
Tribunal has rightly assessed the quantum in
each of the claim petitions and has awarded
"just compensation" and no interference is
called for in exercise of the appellate
jurisdiction of this Court.
12. In view of the above, both the grounds
raised by the learned advocate for the appellant
deserves to be negatived and the appeal are
liable to be dismissed and are hereby dismissed.
However, there shall be no order as to costs.
Registry is directed to send back the original
C/FA/2954/2008 JUDGMENT
record and proceedings to the Tribunal
forthwith.
(R.M.CHHAYA, J)
(R.P.DHOLARIA, J)
BIJOY B. PILLAI
