Iffco Tokyo General Insurance Co ... vs Manishaben Vijaybhai Varasada
2021 Latest Caselaw 4232 Guj

           C/FA/23/2020                                             ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO. 23 of 2020
                                With
                  R/CROSS OBJECTION NO. 11 of 2021
                                 In
                     FIRST APPEAL NO. 23 of 2020
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              IFFCO TOKYO GENERAL INSURANCE CO LTD
                              Versus
                  MANISHABEN VIJAYBHAI VARASADA
==========================================================
Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 8
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4,5
NOTICE SERVED(4) for the Defendant(s) No. 7
NOTICE UNSERVED(8) for the Defendant(s) No. 6
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 CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
        and
        HONOURABLE MR. JUSTICE R.P.DHOLARIA

                             Date : 16/03/2021

                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.P.DHOLARIA)

1. The appellant insurance company­original opponent no.2 in the MACP No. 1 of 2016 preferred before the Motor Accident Claims Tribunal (Aux), Morbi has questioned the judgment and award passed by the Motor Accident Claims Tribunal dated 12.06.2019 inter alia contending that the learned Tribunal failed to appreciate the evidence on record and failed to take into consideration that the driver of the car bearing registration No. GJ­03­DN­9315 was the sole negligent and that contention is not at all dealt with by the learned Tribunal and has further contended that the learned Tribunal has

C/FA/23/2020 ORDER

wrongfully considered the ratio laid down in the well celebrated decision of the Apex Court in the case of Khenyei Vs. New India Assurance Co. Ltd. as if the entire incident happened due to the composite negligence and consequently therefore, no issue as regards negligence was required to be determined in that fashion and the claim came to be decided, which has gravely prejudiced to the appellant­insurance company. It was contended that it was bounden duty of the learned Tribunal to render a clear decision on the issue of negligence.

2. Heard Ms. Kirti Pathak, learned advocate for the appellant, Mr. Nishit Bhalodi, learned advocate for respondents no.1 to 5 and Mr. Maulik Shelat, learned advocate for respondent no.8.

3. In view of the aforesaid factual scenario emerging out from the impugned judgment and award and especially the factual scenario emerging out from the Record and Proceedings, though the charge­sheet and FIR were also came to be produced before the learned Tribunal, the learned Tribunal has not at all dealt with the same and has arrived at the finding that the incident occurred due to composite negligence on the part of the driver of the car as well as the trailer.

4. In view of the aforesaid, all the three learned advocates have conceded that let the matter be

C/FA/23/2020 ORDER

remitted back to the learned trial court. However, the learned advocate Mr. Maulik Shelat suggested that additional opportunity of leading evidence to all the parties may be given so that this issue may be decided even by adducing oral as well as documentary evidence and let the learned Tribunal may give fresh decision on the point of negligence as well as on the point of quantum of compensation, i.e., on all points.

5. We have heard the learned advocates as well as also perused the impugned judgment and award and other material evidence made available to us including FIR and charge­sheet. In light of the above suggestion made by the learned advocates, the same requires to be accepted and the matter requires to be remitted back for fresh decision after affording reasonable opportunity as stated above.

6. For the reasons recorded above, the appeal stands allowed. The Judgment and award dated dated 12.06.2019 passed in MACP No. 1 of 2016 stands quashed. The learned Tribunal is further directed to decide the remanded proceeding preferably within a period of six months after giving reasonable opportunity of leading additional evidence, oral as well as documentary, and thereafter, shall afford reasonable opportunity of oral arguments and shall render a clear finding as regards negligence and as to whether the contentions

C/FA/23/2020 ORDER

raised by the appellant­insurance company that the driver of the offending car No. GJ­03­DN­ 9315 is negligent or the incident occurred due to composite negligence. The claimants shall be given reasonable opportunity of leading evidence, oral as well as documentary, for seeking enhancement of compensation.

7. The amount deposited before the Tribunal in furtherance to the award as well as the order passed by this Court shall remain as it is and that shall be subject to final decision by the learned Tribunal.

8. In view of the aforesaid, the cross­objection filed by the original claimants is also disposed of.

(R.M.CHHAYA, J)

(R.P.DHOLARIA, J) BIJOY B. PILLAI