Gujarat High Court
United India Insurance Company ... vs Kanti Pravinbhai Homabhai on 28 October, 2021
Bench: Mauna M. Bhatt
C/FA/3174/2021 ORDER DATED: 28/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3174 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 3174 of 2021
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UNITED INDIA INSURANCE COMPANY LIMITED
Versus
KANTI PRAVINBHAI HOMABHAI
==================================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,4,5,6
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 28/10/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. Insurer is calling in question judgment and award dated 13.02.2019
passed by the Motor Accident Claims Tribunal (Aux.), City Civil &
Sessions Court, Ahmedabad in Motor Accident Claim Petition No.310 of
2011 whereunder claim petition filed by the respondents under Section
166 of the Motor Vehicles Act, 1988 has been allowed in part and a total
compensation of Rs.13,87,118/- with interest @ 7% per annum from the
date of filing of the claim petition till payment along with proportionate
costs of the application has been granted which is under challenge.
2. We have heard Mr. Vibhuti Nanavati, learned counsel for the
C/FA/3174/2021 ORDER DATED: 28/10/2021
appellant and Ms. Neha Kayastha, learned counsel appearing for Ms.Sejal
K. Mandavia, learned counsel for respondent No.3.
3. It is stated that notice on application for condonation of delay had
been issued to the claimants and it was served and none had appeared
and, as such, question of issuing fresh notice to the claimant does not
arise and we are not inclined to admit this appeal. Notice to claimant
Nos.1 to 3 stands dispensed with.
4. On account of death of Ajitsinh Amarsinh Chauhan who was the
driver of the Gujarat State Road Transport Corporation, his wife and
children had filed a claim petition under Section 166 of the Motor
Vehicles Act, 1988 claiming compensation of Rs.13,87,118/- with
interest @ 7% per annum from the date of filing of claim petition till
payment along with proportionate costs.
5. The insurer is in appeal contending inter alia that Tribunal
committed a serious erred in arriving at a conclusion that driver of the
offending vehicle Eicher truck bearing Registration No.GJ-18-V-1928
was solely responsible on account of his sole negligence. He contends
that panchnama Exh.37 discloses that offending vehicle was proceeding
to Mount Abu and the Tribunal committed an error in arriving at a
conclusion that the said vehicle was coming from the other side of the
C/FA/3174/2021 ORDER DATED: 28/10/2021
road and dashed with S.T. bus. Hence, he prays for appeal being allowed
and judgment and award passed by the Tribunal being modified.
6. Per contra, Ms. Neha Kayastha, learned counsel appearing for
Ms.Sejal K. Mandavia, for respondent No.3 would support the judgment
and award passed by the Tribunal and contends that it is the truck which
was descending from Mount Abu or- other words, S.T. bus was
proceeding from Ahmedabad to Mount Abu. Hence, she seeks for
dismissal of the appeal.
7. Having heard the learned counsels appearing for the parties and on
perusal of the judgment and award in question, we notice that in the claim
petition it was specifically contended that State Transport Bus bearing
Registration No.GJ-18-Y-3167 was proceeding on its scheduled route viz.
from Ahmedabad to Mount Abu. This fact has not been denied in the
written statement Exh.32 filed by the insurer of the truck, i.e. appellant
herein. The content of panchnama Exh.37 reads as under:
"ગઇકાલે તા.૦૭/૦૨/૨૦૧૧ ના કલાક : ૧૪/૩૦ વાગે
અમદાવાદથી માઉન્ટ આબુ એસ.ટી. બસ લઇ અમો રવાના
થયેલા. બસના ડ્ર ાઇવર અજીતસિંસહ અમરસિંસહ ચૌહાણ હતા.
એસ.ટી. બસ નં. જીજે-૧૮-૩૧૬૭ ની હતી. મારો બેજ નં.
૬૭૭૦ છે . અમદાવાદથી માઉન્ટ આબુ આવતા આશરે સાડા
પાંચેક વાગે હડાદ નજીક વિવરપુર ઘાટી પાસે જતાં અંબાજી
C/FA/3174/2021 ORDER DATED: 28/10/2021
તરફથી એક ટે મ્પો પુરઝડપે આવેલો અને અમારી એસ.ટી.
બસના ડ્ર ાઇવર સાઇડના ભાગે ટક્કર મારતાં એસ.ટી. બસ
ડ્ર ાઇવર સાઇડ ખાડામાં ઉતરી ગયેલી અને બસમાં પાછળના
ભાગે આઇસર ટે મ્પો પણ ચોકડીઓમાં ઉતરી ગયેલો."
If a free translation of the above portion is done, it reads:
"On 07.02.2011 at 14.30 hours, S.T. bus was left for Mount
Abu from Ahmedabad. It took nearly five and half hours
from Ahmedabad to Mount Abu and while coming towards
Virpur Ghati, tempo came with a full speed and dashed with
S.T. bus. Thus, from the language used in panchnama it is
not clear that the bus was heading from Ahmedabad to
Mount Abu or coming from Mount Abu to Ahmedabad."
8. Thus, it would clearly emerge that there is some inconsistency.
However, on account of the claimants having contended that the driver of
the S.T. bus was proceeding on the scheduled route from Ahmedabad to
Mount Abu, are said fact mainly not been denied in the written statement
filed as per Exh.32, we have no hesitation to uphold the findings recorded
by the Tribunal.
9. The accident in question had occurred in the middle of the road.
Even in such circumstances, it cannot be held that driver of the S.T. bus
had contributed his negligence, inasmuch as in case of vehicles travelling
in a hill station, the upcoming vehicle has to be necessarily give way the
descending vehicle. As such, findings recorded by the Tribunal in
C/FA/3174/2021 ORDER DATED: 28/10/2021
paragraph 7.3 being just and proper and in accordance with evidence, said
finding does not call for our interference.
10. For the reasons aforesaid, we proceed to pass the following
ORDER
(i) Appeal is dismissed.
(ii) Judgment and award dated 13.02.2019 passed by
Motor Accident Claims Tribunal (Aux.), City Civil &
Sessions Court, Ahmedabad in Motor Accident Claim
Petition No.310 of 2011 insofar as negligence factor is
concerned stands affirmed.
(iii) No order as to costs.
11. In view of the order passed in main appeal, all pending civil
application stands disposed of as having become infructuous.
(ARAVIND KUMAR,CJ)
(MAUNA M. BHATT,J)
Bharat
