Gujarat High Court
United India Insurance Co.Ltd vs Vandana Tripathi Wd/O ... on 25 January, 2022
Bench: Hemant M. Prachchhak
C/FA/59/2019 JUDGMENT DATED: 25/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 59 of 2019
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF
AMOUNT) NO. 1 of 2021
In R/FIRST APPEAL NO. 59 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK 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 ?
==============================================================
UNITED INDIA INSURANCE CO.LTD
Versus
VANDANA TRIPATHI WD/O KRISHNAKUMAR HARDAYAL TRIPATHI
==============================================================
Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
. for the Defendant(s) No. 1,2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 6
MR.HIREN M MODI(3732) for the Defendant(s) No. 7
MS POOJA H HOTCHANDANI(7765) for the Defendant(s) No. 1,2
RULE SERVED(64) for the Defendant(s) No. 3,4
RULE UNSERVED(68) for the Defendant(s) No. 5
==============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 25/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Feeling aggrieved and dissatisfied with the impugned
C/FA/59/2019 JUDGMENT DATED: 25/01/2022
judgment and award dated 31.07.2018 passed in MACP
No.1394 of 2006 by the Motor Accident Claims Tribunal
(Auxi), Vadodara, the appellant Insurance Company has
preferred present appeal under Section 173 of the Motor
Vehicles Act, 1988.
2.0. The following facts emerge from the record of this appeal:
2.1. That the accident took place on 30.08.2004 at about 8
am on express highway no.1 i.e. express highway between
Baroda- Ahmedabad. It is the case of the original claimants
that deceased Krishnakumar Tripathi was traveling from
Baroda to Ahmedabad in Indica Car bearing registration no.
GJ-6-AH-0814 and was sitting besides the driver. It is the
case of the claimants that when car reached Shamarkha
Village, truck bearing registration no. GJ-8U-1655 which was
going in front of the Indica Car applied brake abruptly without
showing nay signal, because of which, Indica Car dashed with
the Truck from behind. The deceased Krishnakumar Tripathi
sustained serious injuries and succumbed to the same. An
FIR was lodged with the Anand (Rural) Police Station being
CR-I- No.127 of 2004 and the present claim petition was filed
under Section 166 of the Act and claimed compensation of
Rs.70 lakhs. It was the case of the original claimants that the
deceased was 33 years old on the date of accident and possess
degree of Engineering from Jabalpur University. It was the
case of the claimants that he was working as Assistant
Engineer in L & T initially and thereafter he joined Reliance
Infocom as a Project Manager at Jabalpur and his monthly
C/FA/59/2019 JUDGMENT DATED: 25/01/2022
salary at Rs.33,000/-. The claimants examined wife of the
deceased i.e. Vandnaben at Exh.40 and relied upon plethora
of documentary evidence as under:
Particulars Exh.no.
Certificate of cause of death issued by the 56
Doctor
Salary slip of deceased of the year 2000 80
Letter of full and final settlement of 81
deceased issued by the L & T
Certificate issued by the Reliance Infocom 82
to the deceased
Pay slips of deceased 83 to 87
Income Tax projection of deceased issued 89
by Reliance Infocom
Form No.16 of deceased of 1.4.2004 to 90
1.9.2004
Revised CTS certificate of deceased issued 91
by Reliance Infocom
Letter issued by the Reliance Infocom 93
with respect to probation
The Tribunal having appreciated the evidence of FIR &
Panchnama at Exh. 51 & 52 came to the conclusion that the
driver of the truck was solely negligent. The Tribunal while
considering the quantum aspect in order to determine the just
and adequate compensation considered oral deposition of
C/FA/59/2019 JUDGMENT DATED: 25/01/2022
Vandnaben at Exh.40 and determined income of the deceased
at Rs.19,728/- per month and after deducting 1/3rd towards
personal expenses and applying multiplier of 16, awarded
compensation of Rs.37,87,888/- with 9% interest from the
date of filing of claim petition till its realization. Being
aggrieved and dissatisfied with the same, the appellant
Insurance Company has preferred present appeal.
3.0. Heard Mr. Palak Thakkar, learned advocate for the
appellant Insurance Company, Dr. Mr. R.G. Dwivedi, learned
advocate for the claimants, Mr. Vibhuti Nanavati, learned
advocate for the Insurance Company of Indica Car and Mr.
Hiren Modi, learned advocate for the mother of the deceased-
claimant. Though served nobody appears for other
respondents and as the liability has not denied by the
Insurance Company, presence of respondent no.5 is not
essential for deciding the present appeal.
4.0. Mr. Thakkar, learned advocate for the appellant-
Insurance Company has heavily relied upon the FIR and
Panchnama at Exh. 51 and 52 and has read over the same
before this Court. Mr. Thakkar contended that the Tribunal
has committed error in coming to the conclusion that the
driver of truck was solely negligent only on the ground that
driver of the truck has not been examined.
4.1. Mr. Thakkar contended that the manner in which the
accident has taken place clearly shows that Indica Car has
been driven in very high speed and it dashed with the truck
C/FA/59/2019 JUDGMENT DATED: 25/01/2022
from behind and therefore, it was driver of the Indica Car who
had last opportunity to avoid the accident and applied brake
within the required time. Mr. Thakkar learned advocate for the
appellant has relied upon the judgment of the Hon'ble
Supreme Court in the case of Andhra Pradesh State Road
Transport Corporation and Another vs. K. Hemlatha and Ors
reported in (2008) 6 SCC 767 and in the case of Nishan Singh
and ors vs. Oriental Insurance Company Limited reported in
(2018) 6 SCC 765 to contend that even as per the doctrine
while determining the negligence the principle of who had last
opportunity to avoid accident has to be considered. Reiterating
the contention raised before us, it was contended by Mr.
Thakkar that driver of Indica Car was the last opportunity to
apply brake and avoid accident. Similarly, relying upon the
judgment of the Hon'ble Supreme Court in the case of Nishan
Singh (supra) it was contended that sufficient distance was
not maintained by the driver of the Indica and therefore, it
cannot be said that the driver of the truck was solely negligent
for the accident. According to Mr. Thakkar, driver of Indica
Car was more negligent than the driver of the truck who was
taken turn on the left and Tribunal has thus committed an
error. In the alternative, Mr. Thakkar contended that the
Tribunal at least should have been held the driver of both the
vehicles involved in the accident equally liable on the sole
ground of negligence as canvassed by Mr. Thakkar. It was
contended that the impugned judgment and award is
erroneous and same deserves to be quashed and set aside and
the appellant Insurance Company deserves to be exonerated
completely. Mr. Thakkar candidly submitted that on the
C/FA/59/2019 JUDGMENT DATED: 25/01/2022
quantum aspect there is no contention to be raised by the
appellant.
5.0. Per contra, Dr. Mr. R.G. Dwivedi, learned advocate for
the claimants as well as Mr. Hiren Modi, learned advocate for
the original claimant have supported the impugned judgment
and award. Mr. Vibhuti Nanavati, learned advocate for the
Insurance Company of the Indica Car has also supported the
impugned judgment and award and has submitted that the
Tribunal has rightly considered the evidence on record and
has correctly come to the conclusion that the driver of the
Truck involved in the accident was solely negligent. According
to learned advocate for the respective respondents, appeal
being meritless, deserves to be dismissed.
6.0. No other and further submissions/ contentions have
been raised by the learned advocates for the respective parties.
7.0. The sole question which arises in this appeal is whether
the Tribunal has correctly come to the conclusion that the
driver of the truck was solely negligent or not ?
8.0. In order to answer the aforesaid question, it would be
appropriate to refer FIR at Exh.51 and 52. The FIR at Exh.51
has lodged by one Sanjay Babubhai and same recites that
while truck was going towards Ahmedabad on express
highway and when truck driver abruptly tried to apply the
brake, Indica Car dashed from behind. Even upon re-
appreciating the evidence of panchnama at Exh.52 which
C/FA/59/2019 JUDGMENT DATED: 25/01/2022
shows that the Indica Car was damaged more and the Hood
was got entangled in the spare Wheel of the Truck. The record
indicates that the Truck was 10 Wheel Truck. Upon perusing
the evidence on record as well as deposition of Vandnaben at
Exh.40 and the observation made by the learned Tribunal it is
based on correct reading and interpretation of the evidence on
record and it clearly shows that the truck was found to be
little turtle on the left side and it is recorded which is based
upon the original record that while going towards left hand
side the driver of the truck abruptly applied the brake without
taking any precaution / care, because of which, Indica Car
dashed from the behind. In peculiar facts of this case, it also
deserves to be noted that the accident has occurred on
express highway wherein there are different lanes and
different maximum speed provided for type of vehicles. As far
as running of vehicle is concerned, on express highway there
are hardly any opening. Though attempt was made by Mr.
Thakkar, learned advocate for the appellant that truck was
near opening of Anand City on the (bye-pass), however
accident has not occurred on any four lane or any cross lane
passing on the express highway but it is on the express
highway near village Shamarkha. There is evidence on record
that the driver of the truck that too heavy vehicle with 10
Wheels abruptly took turn on the left hand side and applied
brake without any precaution or proper care. The contention
that the Indica driver had a last opportunity to apply brake is
not only without any basis but is based on wrong proposition
as the facts unveiled and the evidence if read as it is when the
truck took turn on the left abruptly and the driver applied
C/FA/59/2019 JUDGMENT DATED: 25/01/2022
brake, there would have been hardly any opportunity for the
driver of Indica Car who was driving on the express highway to
apply brake and avoid accident. It was on the contrary duty of
the driver of the truck to take precaution while taking turn if
at all needed and then applied brake after precaution. The
evidence on record shows the contrary behavior of the driver
of the truck. It would not be out of place to take judicial notice
of the fact that on national or express highway vehicles are not
permitted to stop in between. In light of such evidence, if the
judgment of the Hon'ble Supreme Court in the case of Nishan
Singh (supra) is examined, the Hon'ble Supreme Court while
interpreting Regulation 23 of Road Regulations, 1989 in para
13 has clearly noted that there was no evidence on record to
indicate that the driver of the truck suddenly applied his
brake in the middle of the road and in such fact situation, the
Hon'ble Supreme Court has come to the conclusion that the
driver of Maruti Car involved in the case of Nishan Singh
would also be negligent. As far as aspect of last opportunity to
apply brake and avoid accident as held by the Hon'ble
Supreme Court in the case of Andhra Pradesh State Road
Transport Corporation and Another (supra) is concerned, in
peculiar facts and circumstance and as evidence on record, it
cannot be said that only because Indica Car which was
coming behind, its driver had last opportunity. The peculiar
facts which can be culled out from the panchnama as well as
other evidence on record clearly shows that when 10 wheels
huge vehicle was being driven that too on a express highway
and when driver applied brake, he should have been more
careful when plying such a heavy vehicle on express highway
C/FA/59/2019 JUDGMENT DATED: 25/01/2022
where speed is not as restricted as any other highway or
national highway or state highway. In light of the aforesaid,
with respect to ratio laid down by the Hon'ble Supreme Court
in the case of Nishan Singh (supra) and Andhra Pradesh State
Road Transport Corporation and Another (supra) would not
applies to the facts of the present case as there is evidence to
the contrary. The sole question which arises in this appeal,
therefore, is decided against the appellant and in favour of the
claimants. Appeal therefore, fails and is hereby dismissed.
However, there shall be no order as to costs. It would be open
for the applicant of Civil Application No. 1 of 2021 to approach
the Tribunal. As the appeal is dismissed, connected Civil
Application stand disposed of. Registry is directed to transmit
back the Record and proceedings to the Tribunal forthwith.
sd/-
(R.M.CHHAYA,J)
sd/-
(HEMANT M. PRACHCHHAK,J)
KAUSHIK J. RATHOD
