Gujarat High Court
Oriental Insurance Co Ltd vs Bhavin Harishbhai Patel on 20 January, 2021
Bench: R.M.Chhaya
C/FA/3379/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3379 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
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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
BHAVIN HARISHBHAI PATEL & 1 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR VILAV K BHATIA(5338) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 20/01/2021
ORAL JUDGMENT
1. Being aggrieved and dissatisfied by the judgment
and award dated 18.03.2010 passed by the
Auxiliary Judge, City Civil Court No.22,
Ahmedabad in MACP No. 995 of 2002, the appellant
insurance company has preferred the present
appeal under Section 173 of the Motor Vehicles
Act, 1988 (hereinafter referred to as the
C/FA/3379/2010 JUDGMENT
"Act").
2. The following facts emerge from the record of
the appeal
2.1 That the accident took place on 10.02.2002
at about 6.00 AM near Navtalpole, Ahmedabad
City. It is the case of the original claimant
that while he was sitting as a pillion rider
on scooter bearing registration no. GJ1BD
4769 and was coming from Gopal Glass Office to
Navtalpole and while his scooter reached the
crossroad near meat market of Mirzapur, a
loading rickshaw which was driven by its
driver from Hanuman Mandir, dashed with the
right part of the scooter and resultantly, the
respondentoriginal claimant sustained serious
injuries and was admitted to VS Hospital as
indoor patient and remained in the hospital as
indoor patient till 08.04.2002.
2.2 The FIR came to be lodged and thereafter,
the respondentoriginal claimant filed claim
petition under Section 166 of the Act and
claimed compensation of Rs. 8,00,000/. It is
the case of the respondentoriginal claimant
that he was required to be operated and had to
undergo surgery whereby his right leg was
amputed from down the knee and it is the case
of the original claimant that he is not in a
position to live his routine life. The
original claimant came to be examined at
C/FA/3379/2010 JUDGMENT
exhibit 24 and the respondentoriginal
claimant also relied upon documentary evidence
such as insurance policy at exhibit 18, police
complaint at exhibit 34, certificate of
medical treatment at exhibit 35, certificates
of VS Hospital at exhibits 36 and 37,
Permanent Disability Certificate of Civil
Hospital, Ahmedabad at exhibit 38.
Considering the evidence on record, the
Tribunal partly allowed the claim petition and
awarded compensation of Rs. 8,90,469/under
various heads and being aggrieved by the same,
the insurance company has preferred this
appeal.
3. Heard Mr. Vibhuti Nanavati, learned advocate for
the appellant and Mr. Vilav K. Bhatia, learned
advocate for respondent no.1original claimant.
Though served, no one appears for respondent
no.2.
4. Mr. Nanavati, learned advocate for the appellant
has contended that the Tribunal has misread the
affidavit of evidence at exhibit 24 and further
contended that even as per the case of the
original claimant, the driver of the scooter on
which he was a pillion rider, dashed at the
right side and therefore, how loading rickshaw
was negligent or responsible for causing the
accident is not properly appreciated by the
Tribunal. Mr. Nanavati also further contended
that the Tribunal has failed to appreciate the
C/FA/3379/2010 JUDGMENT
admitted fact that the respondentoriginal
claimant has all through out maintained that it
was the driver of the loading rickshaw who was
negligent and was driving in rash and negligent
manner and therefore, the findings arrived at by
the Tribunal as regards negligence is erroneous.
Mr. Nanavati also contended that the respondent
original claimant has to plead and prove
negligence on the part of the tortfeaser, i.e.,
in the case on hand, rider of the scooter in
order to succeed in order for damages.
According to Mr. Nanavati, the Tribunal has
misread the evidence and has wrongly held the
driver of the scooter negligent. On the
aforesaid grounds, it was therefore contended by
Mr. Nanavati that the appeal be allowed and the
impugned judgment and award by modified.
5. Per contra, Mr. Bhatia has supported the
impugned judgment and award and has submitted
that the Tribunal has rightly appreciated the
evidence on record and after weighing it, has
passed the impugned judgment and award and
therefore, the appeal being meritless, deserves
to be dismissed. Mr. Bhatia also contended that
the evidence clearly shows that the respondent
original claimant was seriously injured and the
respondent had to undergo excessive medical
treatment at V.S. Hospital, Ahmedabad wherein
his right leg was required to be amputed. It
was therefore contended that the appeal be
dismissed.
C/FA/3379/2010 JUDGMENT
6. No other or further contentions and/or grounds
are raised by the learned advocates appearing
for the parties.
7. I have perused the original record and
proceedings.
8. Upon hearing the learned advocates for the
parties, the question which arises in this
appeal is whether the Tribunal has rightly
recorded the findings based upon the evidence on
record as regards negligence of the driver of
the scooter or not. The record indicates that
the accident took place on busy road which is
not very wide and the place of accident is
situated in the downtown of Ahmedabad City. The
record clearly indicates that when the panchnama
of the accident was prepared by the police
authorities, neither of the vehicles involved in
the accident were found at the scene of
occurrence. In such a situation therefore, it
is not possible, on the contrary, difficult to
presume that driver of which vehicle was on
wrong side or right side. It is also an
admitted position that though vehicles were not
found on the scene of occurrence, the appellant
insurance company has preferred not to examine
the driver or rider of either of the vehicle and
therefore, the findings arrived at by the
Tribunal, more particularly the observations
made in para 13 of the judgment is on correct
C/FA/3379/2010 JUDGMENT
appreciation of evidence on record. The
findings as regards negligence arrived at by the
Tribunal are based upon the true and correct
appreciation of the evidence on record.
9. In the facts and circumstances and the evidence
on record, it appears that the Tribunal has
correctly considered the police panchnama, FIR,
oral testimony of the original claimant and has
correctly come to the finding that the
respondentoriginal claimant has sufficiently
proved the involvement of vehicles and
negligence of the driver. Resultantly, all the
grounds, which are raised by Mr. Nanavati,
learned advocate for the appellant relates to
determination of negligence by the Tribunal. The
same does not require any alteration or
modification. The same are based on evidence on
record and the appellant not having examined the
driver or rider of the scooter cannot now be
permitted to plead merely on presumption that
the driver of the loading rickshaw was solely
negligent. Thus, the finding arrived at by the
Tribunal deserves to be upheld. The appeal
therefore fails and is hereby dismissed.
However, there shall be no order as to costs.
The record and proceedings be transmitted to the
Tribunal forthwith.
(R.M.CHHAYA, J)
BIJOY B. PILLAI
