Gujarat High Court
The National Insurance Company ... vs Bhavnaben Anilbhai Kanjariya on 28 June, 2021
Bench: Nikhil S. Kariel
C/FA/47/2021 JUDGMENT DATED: 28/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 47 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/FIRST APPEAL NO. 47 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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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 ? No
3 Whether their Lordships wish to see the fair copy No
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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THE NATIONAL INSURANCE COMPANY LIMITED
Versus
BHAVNABEN ANILBHAI KANJARIYA
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR PREMAL S RACHH(3297) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2,3
UNSERVED EXPIRED (R)(69) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 28/06/2021
ORAL JUDGMENT
1. The present appeal is preferred under Section 173 of Motor Vehicles
Act by original opponent No.2-Insurance Company challenging impugned
judgement and award dated 28-01-2020 passed by learned MAC Tribunal,
C/FA/47/2021 JUDGMENT DATED: 28/06/2021
(Aux.), Jamnagar in MACP No. 44 of 2007. This Court vide its order dated
13-01-2021 has admitted the appeal and granted conditional stay against
execution of impugned judgement and award. Today, stay application has
been listed for confirmation of stay. It is also reported to this Court that
awarded amount has been deposited by appellant-applicant Insurance
Company with the Tribunal. However, it is requested by learned Advocates
of both sides that considering the issue involved in matter and more
particularly since the claim petition is of the year 2007 and appeal is mainly
on issue of negligence wherein presence of other respondents i.e. owner of
truck involved in accident is not required, therefore they have requested this
Court to hear the appeal finally. The copy of relevant evidence has jointly
been supplied by learned Advocates of the parties to the Court thereby it
can decide issue in absence of record & proceedings of matter.
2. Considering the request made by learned Advocates for both the
parties and after perusing the record, this Court has thought it fit to take up
appeal for final hearing.
3. Learned Advocate Mr. Shelat has submitted that accident in question
had taken place on 21-11-2005 at about 8:00 p.m. wherein deceased was
riding his motorcycle bearing registration No. GJ-10-N-9056 rashly and
negligently dashed with stationary truck number bearing registration No.
GQA-7130 insured with the appellant which was parked on edge of road.
He has further submitted that the FIR came to be filed by pillion rider of
motorcycle No. GJ-10-N-9056 wherein it has been clearly stated that
deceased and complainant both were going on above said motorcycle and
talking to each other when they suddenly saw the above said insured
stationary truck in the light of motorcycle but before deceased could do
anything, his motorcycle dashed with stationary truck. So, according to
C/FA/47/2021 JUDGMENT DATED: 28/06/2021
learned Advocate Mr. Shelat, it is a case of sole negligence of rider of
motorcycle for causing accident as deceased motorcyclist has not taken
proper and reasonable care while riding motorcycle and since he was talking
with pillion rider he could not notice the stationary truck which resulted into
accident. Alternatively, he has submitted that the learned Tribunal ought not
to have held stationary truck driver 80% negligent but it would be equal
negligence of both drivers of vehicles involved in accident. Thus, he has
requested this Court to allow appeal.
4. Learned Advocate Mr. Premal Rachh appearing for claimants have
vehemently opposed the appeal and submitted that there is no error
committed by the Tribunal which requires any interference of this Court. He
has further submitted that complainant namely Jagdishsinh Navalsinh Jadeja
has been examined by claimants before the tribunal at Exh. 70 wherein he
has categorically stated that stationary truck was standing without any
reflector or sign in stationary condition which is in violation of provisions of
Motor Vehicles Act and its Rules. He has further contended that if parking
light of stationary truck was 'ON' than accident in question could have been
avoided. Further, driver of truck was not examined by the appellant before
the Tribunal then an adverse inference against him for his negligence
requires to be drawn. He has submitted that in any case, it is not a case of
equal negligence of both drivers.
5. Heard learned Advocate Mr. Maulik Shelat for appellant and learned
Advocate Mr. Premal Rachh for respondent Nos.1 to 3-original claimants at
length. Presence of respondent No.4-owner of truck is not required as his
interest is taken care by appellant being insurer of the truck.
6. It is not in dispute that truck No. GQA-7130 and motorcycle No.
C/FA/47/2021 JUDGMENT DATED: 28/06/2021
GJ-10-N-9056 is involved in accident which took place on 21-11-2005 at
about 8:00 p.m. wherein rider of motorcycle had sustained serious injuries
and succumbed to it. The legal heirs of deceased motorcyclist have filed
claim petition against the owner and insurer of the truck involved in
accident. After hearing the parties and appreciating evidence on record,
learned Tribunal has found driver of truck 80% negligent and deceased
motorcyclist 20% negligent for causing accident. As far as quantum of
compensation is concerned, the appellant has not disputed same in appeal.
The learned Tribunal has worked out total compensation of Rs. 9,92,948/-,
out of which 20% towards self-negligence of deceased at the rate of Rs.
1,98,590/-has been deducted whereafter it has awarded compensation of Rs.
7,94,358/- with 9% interest thereon from date of claim petition till its
realization.
7. This Court has gone through impugned judgement and pursued copy
of evidence made available by learned Advocates for the parties for
adjudicating dispute in relation to issue of negligence. It appears that the
truck was parked on the edge of the road in night hours on 21-11-2005
without any parking light 'ON' as can be seen from oral evidence of
complainant Jagdishsinh Navalsinh Jadeja who was examined by claimants
before the Tribunal at Exh. 70. Whereas, driver of the truck was not
examined to disprove such fact than there is no reason to disbelieve
evidence of complainant who happens to be an eye witness to accident. It
also appears that the FIR came to be lodged by said Jagdishsinh just after
accident narrating entire set of event wherein it can be seen that the
motorcycle was in speed and deceased was taking with him and suddenly
they saw the stationary truck but before deceased tried to avert collision
with the truck, his motorcycle dashed at rear driver side portion of
stationary truck resulted into accident in question. Thus, it appears that
C/FA/47/2021 JUDGMENT DATED: 28/06/2021
drivers of both vehicles were negligent for causing accident. Nonetheless,
considering fact that accident had taken place in month of November, 2005
at about 8:00 p.m. which is winter season and it would be dark night then it
was obligation on part of stationary truck driver to keep parking light of
truck 'ON' to avert such type of collision. The driver of truck was having
bigger responsibility to observe all traffic rules. At the same time,
motorcyclist could have easily notice such stationary truck from light of his
own vehicle, but it has come on record through the FIR which is also relied
upon by claimants that deceased while riding motorcycle talking with pillion
rider than he could not notice such stationary vehicle then he was also
negligent to that extent. The reasonable care which ought to have been
taken by deceased while riding the motorcycle was not taken resulted into
collision. It can be said that driver of truck failed in his duty to observe
traffic rules and deceased had not taken due care thereby resulted into
accident. Nevertheless, it is surely not a case of sole and/or equal
contributory negligence of deceased as contended by learned Advocate Mr.
Shelat because driver of bigger vehicle needs to take more care than smaller
vehicle especially parking vehicle in night hours. Likewise, as can be seen
and observed by the Tribunal that motorcyclist was in high speed which was
one of reason that he could not avert collision than holding him only 20%
negligent is incorrect. After considering overall facts & circumstance of case
and after appreciating evidence on record in totality, this Court is of the
opinion that deceased was 30% contributory negligent for causing accident.
8. Thus, in view of above said discussion, driver of truck is found 70%
negligent and deceased is found 30% negligent for causing accident.
Accordingly, out of total compensation of Rs. 9,92,948/-, 30% amount
towards self-negligence of deceased requires to be sliced down i.e. Rs.
2,97,884/-, then claimants are entitled to receive compensation of Rs.
C/FA/47/2021 JUDGMENT DATED: 28/06/2021
6,95,064/- with 9% interest thereon from date of claim petition till its
realization. As appellant-Insurance Company has deposited entire awarded
amount as per award passed by the Tribunal then excess amount so
deposited by appellant-Insurance Company be refunded back to appellant
by the Tribunal and remaining amount as determined by this Court be paid
to claimants as per ratio of apportionment fixed by Tribunal in its impugned
judgment. Accordingly, the present appeal is partly allow to the aforesaid
extent and impugned judgment and award passed by the Tribunal is modify
to aforesaid extent. There is no order as to costs.
9. In view of the order passed in the captioned appeal, the Civil
Application for stay would not survive and the same is accordingly disposed
of.
(NIKHIL S. KARIEL,J)
BDSONGARA
