Gujarat High Court
Royal Sundaram Alliance ... vs Maniben Wd/O Bijalbhai ... on 5 July, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/FA/1623/2021 ORDER DATED: 05/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1623 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 1623 of 2021
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ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY
Versus
MANIBEN WD/O BIJALBHAI BHIKHABHAI
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR. RUSHANG D MEHTA(6989) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3,4,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/07/2021
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
ORDER IN FIRST APPEAL:-
We have heard Mr. Dakshesh Mehta, the learned counsel
appearing for the appellant [original opponent no.4 - Insurance
Company].
Admit.
ORDER IN CIVIL APPLICATION:-
Mr. Dakshesh Mehta, the learned counsel appearing for the
C/FA/1623/2021 ORDER DATED: 05/07/2021
applicant - appellant [original opponent no.4 - Insurance Company]
invited our attention to the findings recorded by the tribunal in
Paragraph-6.4 of the judgment. Paragraph-6.4 reads thus:-
"6.4 In support of the claim petition, the claimants have
produced the affidavit in chief examination at Exh.43, whereby
they have reiterated the averments made in the claim petition.
Over and above, affidavit of chief examination, claimant side
has produced copy of complaint and panchnama, it transpires
that the accident had taken place at Usmanpura Cross Roads
and considering the said fact though the complainant of the
FIR at Exhibit-64 has stated that the accident had taken place
solely due to the rash and negligent driving on the part of
opponent No.1 i.e. driver of scooty bearing registration
No.GJ.1.BC.563 but when the place of accident is considered as
cross roads, it is also the duty of opponent no.3 i.e. driver of
motor cycle No.GJ.1.EC.5147 to become watchful and vigilant
so as to prevent the accident. That neither the applicant side
nor opponent side has examined any other person who has
seen the accident. Considering the said fact, in my humble
opinion, the negligency aspect can be held in the following
proportion. That as the scooty driver was driving his vehicle in
excessive speed, the scooty driver is held 75% negligent for
happening of the accident and the driver of motor cycle had
failed to adhere to the normal rules of traffic, his negligency is
assessed as 25%."
2. According to Mr. Mehta, the liability of the appellant -
Insurance Company is fixed at 25% as discussed in Paragraph-6.4
referred to above. However, the final order rather the operative
part of the order reads thus:-
"1) The above referred claim petition is hereby partly
allowed. The claimants are entitled to recover
compensation of Rs.18,13,000/- (Rupees Eighteen Lacs
Thirteen Thousand) with proportionate cost and with
interest at the rate of 7.5% per annum, from the
opponents, who are jointly and severally liable to pay the
same.
C/FA/1623/2021 ORDER DATED: 05/07/2021
2) The opponents are hereby directed to deposit
awarded amount within 30 days from the date of this
order.
3) Deficit Court Fee Stamp, if any, be recovered from
the awarded amount and interim amount, if paid, be
adjusted.
4) On depositing the amount of compensation by
opponents, it shall be disbursed amongst the applicant
No.2, 3 and 4 equally. Out of the amount given to the
share of respective applicant, 70% amount shall be
deposited in any Nationalized Bank for a period of 5 years
in FDR in the name of applicants respectively with a
condition that the applicants will not be entitled to
borrow loan or create any encumbrance on the said
deposit and the remaining 30% amount of their share shall
be paid in cash by issuing A/c. Payee Cheque to the
claimants after due verification.
5) The opponents shall follow the guidelines given in
the case of Hansagauri Prafulchandra Ladhani and others
Vs. Oriental Insurance Co. Ltd., (2007 ACJ 1897 (DB)
GUJ.) by the Hon'ble High Court of Gujarat, with regard
to the deduction of Income-tax."
3. Thus, it appears that the opponents have been jointly and
severally held liable to pay the amount of Rs.18,13,000/- with
proportionate costs and interest.
4. The judgment and award passed by the tribunal shall remain
stayed from its operation on the condition that the appellant -
Insurance Company shall deposit 25% of the awarded amount with
proportionate costs and interest with the tribunal within a period of
six weeks from today.
C/FA/1623/2021 ORDER DATED: 05/07/2021
5. Let Notice be issued to the respondents returnable on
02.08.2021.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
A. B. VAGHELA
