Gujarat High Court
National Insurance Company ... vs Makvana Hargovanbhai Tejabhai on 22 April, 2022
Bench: Umesh A. Trivedi
C/FA/288/2022 JUDGMENT DATED: 22/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 288 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/FIRST APPEAL NO. 288 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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NATIONAL INSURANCE COMPANY LIMITED THROUGH REGIONAL
OFFICE
Versus
MAKVANA HARGOVANBHAI TEJABHAI
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
for the Defendant(s) No. 1,10,11,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 22/04/2022
ORAL JUDGMENT
C/FA/288/2022 JUDGMENT DATED: 22/04/2022
[1.0] This Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 challenging the judgment and award passed
by the MACT (Auxiliary), Mehsana dated 10.12.2021 rendered
in MACP No.254 of 2018 whereby the driver of the Tractor
bearing registration no.GJ-02-CL-2724 attached with the
trolley bearing registration No.GRW 5896 is held to be
negligent to the extent of 80% in causing the accident and
awarding Rs.7,50,400/- as compensation with cost and interest
at the rate of 9% per annum from the date of petition till
realization of the claim to the original claimants.
[2.0] The facts of the case, as narrated in the impugned
judgment and award, can be stated as under:
[2.1] On 16.04.2018 at about 7:15 p.m. deceased
Amitkumar Hargovanbhai Makvana was travelling in a
Rickshaw bearing registration No.GJ-02-VV-9290 going from
Palavasana cross road towards village Boriyavi and while going
towards village Boriyavi through signboard of village Mevad
near government tubewell, one Tractor bearing registration
No.GJ-02-CL-2724 attached with Trolley bearing registration
No.GRW 5896 came from the opposite side at an excessive
speed in a rash and negligent manner and dashed with the
Rickshaw. On account of the said accident, passenger -
Amitkumar Hargovanbhai Makvana travelling in the Rickshaw
sustained serious injuries in abdomen and face. The injured at
the relevant time was immediately taken to the Government
Hospital where he was declared dead. The claimants are the
legal heirs and representatives of the deceased and have
asked for compensation on account of death of the sole bread
C/FA/288/2022 JUDGMENT DATED: 22/04/2022
winner as mentioned in the Claim Petition and the evidence
adduced before the tribunal. On conclusion of evidence and
hearing the parties, the tribunal has awarded the
compensation to the claimants, as aforesaid, attributing
negligence on the part of the Driver of different vehicles as
mentioned hereinabove.
[2.2] This Appeal is filed by the National Insurance
Company with whom the Trailer-Trolley of the Tractor was
insured bearing registration No. GRW 5896.
[3.0] Mr. Rathin Raval, learned advocate for the
appellant, submitted that from the FIR, Exh.37, it cannot be
said that because of the Trolley any accident has occurred. At
the same time, he has further submitted that even if the Driver
of the Tractor with which the Trolley was attached is held
responsible, nothing can be attributed to the Insurance
Company of the Trolley as the Trolley has not caused any
accident. Drawing attention of the Court to the definition of
Tractor,Trailer and Semi-Trailer as defined under Section 2(44),
(46) and (39) respectively, it is submitted that being the
Insurance Company of the Trailer-Trolley, they are not liable to
indemnify the insured. Drawing attention of the Court to the
papers of charge-sheet, it is attempted to be submitted that
the driver of the Tractor is held responsible for causing the
accident and Trolley is nowhere mentioned or even attached
with the Tractor. The Record and Proceedings, which was
called for, is available on record. The copy of charge-sheet is
produced before the trial Court and it is exhibited at Exh.53,
page 181 in the Record and Proceedings. It is attempted to be
submitted that as mentioned in column no.5 of it, the accident
C/FA/288/2022 JUDGMENT DATED: 22/04/2022
has been caused by the negligent driving of the Driver of the
Tractor and there is no reference about Trolley being attached
with the Tractor at the relevant time, and therefore, the
appellant cannot be held responsible to indemnify the owner
for any accident caused by the Tractor. Hence, it is submitted
that the Appeal be admitted and allowed.
[3.1] No any other contentions are raised in support of
the Appeal.
[4.0] Having heard the learned advocate for the appellant
and going through the Record and Proceedings, it emerges
from the FIR itself, which is at Exh. 51, that the cause of
accident is due to the negligent driving of the Driver of the
Tractor with attached Trolley and the Trolley was loaded with
wheat in gunny bags. Mere non mention of the Trolley
attached in column no.5 of the charge-sheet, Exh.53, will not
absolve the present appellant to indemnify the owner. The
alleged accident has occurred while the Trolley was attached
with the Tractor, as reflected from the FIR itself and even the
panchnama of scene of offence, which is at Exh.38 supports
the said assertion in respect of the accident caused due to the
negligence of the Driver of the Tractor.
[4.1] The contention that the Trolley was never attached
with the Tractor at the time of the accident, and therefore, the
appellant is not liable to indemnify the insured is without any
substance as FIR very clearly suggests that at the time of
accident Trolley was attached with it. The Trolley as also the
Tractor, both are owned by one person, may be insured with
different Insurance Company, and therefore, when the FIR very
C/FA/288/2022 JUDGMENT DATED: 22/04/2022
clearly suggests that the Trolley was also attached with the
Tractor since the Tractor and Trolley both were insured
whether the Trolley was attached or not with the Tractor pales
into insignificance. As such claimant was to get the
compensation, if the accident occurred because of the
negligence of the driver of the Tractor and when the Tractor is
also insured, it is not that only the Trolley was insured and the
Tractor was not insured, and therefore, the claimant may plead
such case. As such after dealing with elaborately the
evidence adduced before the tribunal, the tribunal has reached
to the finding that the Driver of the Tractor attached with the
Trolley is negligent to the extent of 80% in causing the
accident. The learned Judge has also referred the site
inspection report of the place of the incident prepared by the
mobile investigation van of the Directorate of Forensic Science,
Gandhinagar from which, it transpires that damage was
noticed on the right/rear side of the Rickshaw and as such no
damage was notice on the front side of the Tractor or the rear
side of the Trolley. However, considering the material before
the tribunal, it is concluded that the Trolley was attached with
the Tractor at the time of the accident. It is of no use if no
damage is found either to the Tractor or the Trolley. The
Tractor as also the Trolley are very sturdy in comparison with
the Rickshaw and even a push by the front portion of the
Tractor having front guard is sufficient to cause an accident
and even cause fatal injuries to a passenger travelling in a
Rickshaw. The tribunal has also appreciated the fact that the
FIR had come to be filed against the Driver of the Tractor and
on conclusion of investigation even charge-sheet came to be
filed against him.
C/FA/288/2022 JUDGMENT DATED: 22/04/2022
[4.2] Even if the statement of the driver of the Tractor is
to be considered, which is recorded during the course of
investigation, in absence of driver examined before the
tribunal and opportunity given to the claimants to cross
examine him, the said statement has no evidentiary value for
assessing the negligence on the part of the Driver of the
offending vehicles. On proper examination of the evidence
before the tribunal, it has held that the Rickshaw driver is
negligent to the extent of 20% whereas the driver of the
Tractor and Trolley is held to be negligent to the extent of
80%, and therefore, I see no reason to interfere with the said
finding, which is based on evidence available with the tribunal.
At the same time, the interse liability of the Insurance
Company of Tractor and Trolley insured by different Insurance
Company, is a dispute in between them and it is required to be
resolved by them and on that ground also no interference is
called for to quash the impugned judgment and award passed
by the tribunal. Hence, I see no reason to interfere with the
well reasoned judgment and award passed by the tribunal, and
therefore, the Appeal is hereby dismissed.
ORDER IN CIVIL APPLICATION
In view of dismissal of the First Appeal, no order in
the Civil Application. Hence the same is also disposed of.
(UMESH A. TRIVEDI, J.)
siji
