National Insurance Co. Ltd vs Vanitaben @ Vidyaben Pravinbhai ...
2022 Latest Caselaw 994 Guj

     C/FA/2190/2007                               JUDGMENT DATED: 31/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2190 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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 CO. LTD.
                              Versus
         VANITABEN @ VIDYABEN PRAVINBHAI PATEL & 4 other(s)
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Appearance:
MR VC THOMAS(5476) for the Appellant(s) No. 1
EMIK K PARMAR(8953) for the Defendant(s) No. 1
MR MANISH J PATEL(2131) for the Defendant(s) No. 5
NOTICE SERVED for the Defendant(s) No. 2,3
NOTICE UNSERVED for the Defendant(s) No. 4
PRANAV U DHAGAT(9042) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 31/01/2022

                             ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied with the impugned

judgment and award dated 7.7.2006 passed by the Motor

C/FA/2190/2007 JUDGMENT DATED: 31/01/2022

Accident Claims Tribunal (Main), Anand (hereinafter be referred

to as "the Tribunal") in M.A.C.P. No.976 of 2006 (old M.A.C.P.

No.98 of 1993), the appellant - opponents no.2 and 4 has

preferred the present appeal.

2. Brief facts of the present case are that on 28.5.1991, the

husband of claimant no.1 was going from Vaghasi to Nadiad on

scooter of opponent no.1 as pillion rider, at that time, opponent

no.1 was driving the said scooter in rash and negligent manner

with excessive speed and at about 6.00 p.m., in the sim of

Village: Gamadi, opponent no.3 came driving Tempo bearing

registration No.GJ-07-4572 in rash and negligent manner dashed

behind the scooter, as a result of which, the husband of the

claimant no.1 sustained injury and succumbed to the injury.

Hence, the legal heirs of the deceased have preferred the said

claim petition before the Tribunal, whereby the Tribunal has

partly allowed the claim petition and awarded compensation of

Rs.1,93,000/- against the compensation of Rs.3,00,000/-.

3. Heard Mr.V. C. Thomas, learned counsel appearing for the

appellant, Mr.Emik Parmar, learned counsel appearing for

C/FA/2190/2007 JUDGMENT DATED: 31/01/2022

respondent No.1 and Mr.Manish Patel, learned counsel appearing

for respondent No.5. Though served, nobody appears on behalf

of respondents no.2and 3.

4. Mr.Thomas, learned counsel appearing for the appellant

has submitted the same facts which are narrated in the memo of

appeal. He has submitted that the Tribunal has committed an

error while determining the amount of compensation. He has

submitted that the Tempo was not involved in the accident and

the owner of the vehicle has filed affidavit stating that the

Tempo did not dash with the scooter. He has submitted that the

FIR came to be filed by one Kanubhai Patel, wherein it is stated

that he had not seen the offending vehicle which dashed with the

scooter and even in the panchnama also, the number of the

Tempo was not mentioned. He has submitted that the deceased

was pillion rider on the scooter and, therefore, as per the

decision of the Apex Court, the risk of pillion rider is not covered.

He has submitted that the Tribunal has erred in considering the

prospective income of the deceased more particularly when

there is no proof of income and prospective income of deceased

cannot be considered while calculating the dependency benefit.

C/FA/2190/2007 JUDGMENT DATED: 31/01/2022

He has submitted that in view of the settled legal position, the

impugned award passed against the Insurance Company may

kindly be quashed and set aside.

5. Mr.Parmar, learned counsel appearing for respondent No.1

and Mr.Patel, learned counsel appearing for respondent No.5

have supported the impugned judgment and award passed by

the Tribunal and submitted that the Tribunal has not committed

any error while passing the impugned judgment and award. They

have submitted that no interference is required to be called for.

6. I have gone through the record and proceedings of the

case, the affidavit at Exhibit 49 and considered the submission

canvassed by the learned counsel appearing for both the sides.

So far as the contention raised by the present appellant about

involvement of the vehicle in question is concerned, the Tribunal

has rightly appreciated and considered the said aspects in its

true and perspective spirit, while determining the compensation

in favour of the claimants. From the cross-examination of the

witness Ghanshyambhai Patel, it reveals that the vehicle

involved in the accident is rightly proved beyond reasonable

C/FA/2190/2007 JUDGMENT DATED: 31/01/2022

doubt and, therefore, the contention raised by the appellant -

Insurance Company about involvement of the vehicle is properly

dealt with by the Tribunal. Therefore, I am of the opinion that the

Tribunal has not committed any error of facts and law in passing

the impugned judgment and award and no interference is called

for.

7. In view of the above, the appeal is dismissed. If any

amount deposited by the appellant - Insurance Company at the

time of preferring the appeal before the Registry of this Court is

remitted back to the concerned Tribunal forthwith. The Tribunal

to pass such order of disbursement in favour of the claimants.

There shall be no order as to costs.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL