Gujarat High Court
Iffco Tokio General Insurance ... vs Rawal Arvindkumar Keshavlal on 24 November, 2021
Bench: R.M.Chhaya
C/FA/4340/2019 JUDGMENT DATED: 24/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4340 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 4340 of 2019
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2019
In R/FIRST APPEAL NO. 4340 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
==============================================================
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 of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
IFFCO TOKIO GENERAL INSURANCE COMPNAY LIMITED
AHMEDABAD
Versus
RAWAL ARVINDKUMAR KESHAVLAL
==============================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR DK CHAUDHARI(5361) for the Defendant(s) No. 12
MR HG MAZMUDAR(1194) for the Defendant(s) No. 5
NOTICE SERVED(4) for the Defendant(s) No. 1,10,11,2,3,4,5,6,7,8,9
==============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 24/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/4340/2019 JUDGMENT DATED: 24/11/2021
1.0. Heard Mr. Vibhuti Nanavati, learned advocate for the
appellant and Mr. D.K. Chaudhari, learned advocate for the
original claimants. Though served, nobody appears for the
other respondents. By an order dated 20.10.2021 this Court
was pleased to call for the Record and Proceedings of the
case and hence with the consent of the learned advocates
for the respective parties, the appeal was taken up its final
hearing.
2.0. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 22.02.2019 passed by the Motor
Accident Claims Tribunal (Auxi), Mehsana in MACP No.332
of 2009, the appellant Insurance Company has preferred
the present appeal under Section 173 of the Motor Vehicles
Act, 1988 (Act for short).
3.0. The following facts emerge from the record of this
appeal:
3.1. That the accident occurred on 09.04.2009 when
deceased was going towards Mehsana from village Gorad by
driving his Motorcycle bearing No. GJ-18-M-7820, deceased
dashed with the Jeep bearing No. GJ-24-U-1802 which was
parked on the road side without any reflector or indication,
because of which, deceased sustained serious injuries and
ultimately succumbed to the said injuries. An FIR was
lodged with the jurisdictional Police Station. The original
C/FA/4340/2019 JUDGMENT DATED: 24/11/2021
claimants preferred claim petition under Section 166 of the
Act and claimed compensation of Rs.40 lakhs. The original
claimants also adduced following oral as well as
documentary evidence before the Tribunal.
Exh.No. Particulars
37 Complaint
38 Panchnama of place of accident
39 Inquest Panchnama
40 PM Note
41 RC Book of the Jeep
42 Insurance Policy of Jeep
43 RC Book of Motorcycle
44 Driving license of the deceased
45 Salary certificate of deceased
46 Driving license of the opponent no.1
47 Death certificate of Shankarji Sonaji
48 Death certificate of Hansaben Sonaji
The Tribunal after appreciating the evidence on record
and considering the submissions made by the respective
parties, partly allowed the claim petition and awarded the
compensation of Rs. 27,05,200/- with 9% interest from the
date of application till its realization with proportionate
costs. Being aggrieved and dissatisfied with the same, the
present appellant preferred the present appeal.
4.0. Mr. Vibhuti Nanavati, learned advocate for the
appellant has heavily relied upon the pay slip for the month
of March 2009 issued by the Taluka Panchayat, Chansma
C/FA/4340/2019 JUDGMENT DATED: 24/11/2021
at Exh.45 wherein it is shown that salary received by the
deceased was Rs.9046/-. Mr. Nanavati contended that the
Tribunal has considered the salary slip of February 2009
and has determined the income of the deceased at
Rs.12,200/-per month which is based on the said pay slip
wherein the salary received by the deceased at Rs.12,193/- (
same is rounded off). Mr. Nanavati contended that therefore,
the income of the deceased on the date of accident which
occurred on 09.04.2009 was Rs.8896/- per month.
4.1.Mr. Nanavati further relying upon the panchnama at
Exh.38 contended that the panchnama clearly shows that
insured vehicle i.e. Jeep was parked on the side of the road
and not on the middle of the road. Mr. Nanavati further
contended that as per the panchnama considering the
damage caused to the motorcycle driven by the deceased
establishes the fact that the deceased who was driving the
vehicle was also equally negligent. Relying upon the
judgment of the Coordinate Bench of this Court in First
Appeal No. 2358 of 2013, it was contended by Mr. Nanavati
that the driver of both the vehicles i.e. Jeep and deceased
who was driving the motorcycle were contributory negligent.
Distinguishing the ratio laid down by the Hon'ble Apex
Court in the case of Archit Saini and another vs. Oriental
Insurance Company Limited and ors reported in AIR 2018
SC 1143, it was contended by Mr. Nanavati that the
Tribunal has wrongly come to the conclusion that the driver
of Jeep was solely negligent for the accident, On the
C/FA/4340/2019 JUDGMENT DATED: 24/11/2021
aforesaid two grounds, it was therefore, contended that the
appeal be allowed and the impugned judgment and award
be modified.
5.0. Per contra, Mr. D.K. Chaudhari, learned advocate for
the original claimants - respondent has supported the
impugned judgment and award. Mr. Chaudhari contended
that the contents of the panchnama at Exh.38 clearly
established the fact that Jeep was parked at night hours on
a highway without there being any reflector orfor vehicle
having stopped. Mr. Chaudhary contended that because of
such negligence even though the motorcycle was being
driven in moderate speed, deceased dashed with the Jeep
and lost his life. Mr. Chaudhary contended that the
Tribunal has correctly interpreted the contents of the
panchnama at Exh.38 and the conclusion as regard
negligence arrived at by the Tribunal is proper which does
not requires any interference. Mr. Chaudhary further
referring to the pay slip of March 2009 contended that the
deceased was working as Talati cum Mantri in Chanasma
and being a government servant, there cannot be reduction
in pay. Mr. Chaudhary relying upon the pay slip at Exh.45
in month of February 2009 contended that the Tribunal has
correctly appreciated the same and has correctly determined
the income of the deceased at Rs.12,200/- per month. Mr.
Chaudhary contended that the award being just and proper
does not require any interference. Accordingly, it was
contended by learned advocate for the respondents that the
C/FA/4340/2019 JUDGMENT DATED: 24/11/2021
appeal being meritless, deserves to be dismissed .
6.0. No other and further submissions/ contentions have
been made by the learned advocates for the respective
parties.
7.0. On perusal of the original Record and Proceedings of
the case and it is matter of fact that deceased was working
as a Talati cum Mantri in Chanasma gram panchayat. The
respondents claimants have relied upon the pay slip of
February 2009 at Exh.45 which clearly indicates that the
salary of the deceased in February i.e. almost two month
before the accident occurred was Rs.12,192/-, which is
being rounded off to Rs.12,000/-. The salary certificate is
signed by the TDO, Taluka Panchayat. Even if the certificate
which is pressed into service by way of separate Civil
Application is considered, which is of March 2009, it is
common knowledge that in a government there is no sudden
decreased in pay. That in pay slip at Exh.45 basic pay of the
deceased is Rs.9510/- and further the deceased was paid
dearness allowance, house rent and medical. Though the
pay slip which is sought to be relied upon of March 2009,
the basic is mentioned as Rs.3875/-. The said piece of the
evidence was not adduced before the Tribunal. Considering
the pay slip at Exh.45 to be authenticate, this Court is of
the opinion that Tribunal has committed no error in
determining the income of the deceased based upon pay slip
at Exh.45. Upon re-appreciation of the evidence in form of
C/FA/4340/2019 JUDGMENT DATED: 24/11/2021
salary certificate at Exh.35 and even new salary certificate
of March 2009, income of the deceased can safely be
determined based upon certificate at Exh.45.
8.0. Upon re-appreciation of the evidence in form of
panchnama and examining the factor as to how the accident
has occurred, it is an admitted position that as per the
panchnama Jeep was parked at night hours on a highway
that too without there being any reflector or without any
parking light. Reliance placed by Mr. Nanavati on the
judgment of the First Appeal No.2358 of 2013, is on facts of
this case where two heavy vehicles i.e. mini jeep and truck
was involved wherein in the instant case accident has
occurred between stationary jeep that too at night with
motorcycle. Upon re-appreciation of the evidence on record
and considering the damage caused to the motorcycle which
is light vehicle, it appears that because of the negligence on
the part of the driver of the Jeep having parked such a
vehicle that too at night hours on highway without any
reflector or parking light, because of which, the deceased
dashed with the jeep from behind. Upon re-appreciation of
the evidence, we find that the Tribunal has correctly come
to the conclusion that the driver of the Jeep was solely
negligent. Even considering it from another angle, this
Court is of the opinion that the total compensation of
Rs.27,05,200/- awarded by the Tribunal is just and
adequate and even if the contention of Mr, Nanavati that
equal negligence is accepted in part, the contention raised
C/FA/4340/2019 JUDGMENT DATED: 24/11/2021
by Mr. Nanavati that deceased as driver of the motorcycle
was equally negligent is totally baseless and as per principle
of just compensation, even if such contention is accepted in
part, the same would not make any difference in the total
compensation awarded by the Tribunal. Even otherwise as
per the ratio laid down by the Hon'ble Supreme Court in the
case of United India Insurance Company Limited vs.
Satinder Kaur @ Satwinder Kaur reported in AIR 2020 SC
3076, the respondents claimants who are not in appeal
before this Court would be entitled to further compensation
by way of filial and parental consortium. In totality of facts,
present appeal fails and is hereby dismissed. However there
shall be no order as to costs.
As the appeal is dismissed, connected Civil
Applications also stand dismissed. Registry is directed to
transmit back the R & P to the concerned Tribunal
forthwith.
sd/-
(R.M.CHHAYA,J)
sd/-
(MAUNA M. BHATT,J)
KAUSHIK J. RATHOD
