United India Insurance Co Ltd vs Manish Kanubhai Patel
2022 Latest Caselaw 5357 Guj

     C/FA/1771/2013                                JUDGMENT DATED: 22/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1771 of 2013
                                   With
              CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2013
                     In R/FIRST APPEAL NO. 1771 of 2013

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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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                       UNITED INDIA INSURANCE CO LTD
                                    Versus
                      MANISH KANUBHAI PATEL & 1 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR RAJKUMAR CHAUMAL(3501) for the Defendant(s) No. 2
MR VAIBHAV A VYAS(2896) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 22/06/2022

                              ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company, being aggrieved and dissatisfied with the common judgment and award

C/FA/1771/2013 JUDGMENT DATED: 22/06/2022

dated 11.05.2012 passed by the Motor Accident Claims Tribunal (Aux.), City Civil and Sessions Court, Ahmedabad in Motor Accident Claim Petition No.656 of 2001, by which the Tribunal has awarded compensation of Rs.2,50,000/- with 7.5% per annum interest to the claimant, holding Opponents i.e. owner and insurance company liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 18.02.2000 at about 1:15 hours, the claimant - Manish Kanubhai Patel was going on his motorcycle bearing registration No.GJ-1-BM-5488, along with one Riken Jainikbhai Nayak as pillion rider. When they reached near Fatepura Old Post Office, Paldi, at that time, one truck bearing registration No.GJ-6-T-4853 came from wrong side and dashed with the motorcycle of the claimant. It was a head on collusion. Due to that, the claimant has sustained multiple injuries. The pillion rider has also got injured in the said accident. The claimant was immediately shifted to the hospital. A complaint was also registered by a pillion rider against the truck driver before the Ellisbridge Police Station, Ahmedabad being FIR No.109 of 2000. Therefore, a claim petition was filed by the claimant to get the compensation of Rs. 20 lakhs.

2.2 Notices were served to the opponents. Opponent No.3 - insurance company has appeared and disputing all the averments made by the claimant in the claim petition.

2.3 The Tribunal has framed the issues. The oral as well as documentary evidence, mentioned in Para : 5 of the impugned award, were led by the rival parties before the Tribunal. After considering the various documentary as well as oral evidence and submissions

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made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.

2.4 Hence, the present appeal by the insurance company.

3. Learned advocate Mr. G.C.Majmudar for the appellant - insurance company has mainly contended that at the time of accident, the involved truck was not insured with the insurance company and that fact has not been considered by the Tribunal. He has submitted that the owner of the truck has suppressed the fact of accident, which was occurred before filing proposal form. He has submitted that therefore, insurance company has no liability to pay any compensation. He has submitted that the Tribunal has held truck liable. He has submitted that the owner of the truck has committed fraud with the insurance company, therefore, the insurance company is not liable to pay any compensation, which was not considered by the Tribunal and passed the impugned award. He has submitted that this appeal may be allowed on this ground only.

4. Per contra, learned advocate Mr. Vaibhav Vyas for respondent No.1 - original claimant has submitted that the Tribunal has not committed any error in passing the impugned award. He has submitted that before the Tribunal, the insurance company has not produced the insurance policy on record. He has further submitted that insurance company has neither taken any contention regarding fraud committed by the owner of the truck with it nor has rebutted the evidence on record nor has cross-examined the owner of the truck. He has submitted that the insurance company for the first time before this Court has raised this contention, which is not permissible at this stage in view of catena of decisions of the Hon'ble Apex Court. He has submitted that when the evidence and/or rebuttal is not there

C/FA/1771/2013 JUDGMENT DATED: 22/06/2022

before the Tribunal, how can the Tribunal evaluate it. The Tribunal has rightly awarded compensation considering the material as well as evidence before it. He has submitted that the present appeal be dismissed.

5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.

6.1 I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. The main and only contention before this Court for determination is as to whether the additional evidence, which was not produced by the insurance company before the Tribunal, is to be taken into consideration at this stage or not.

6.2 From the entire record and proceedings, it reveals that the insurance company has neither produced the insurance policy on record nor has rebutted any contention qua this nor has submitted any written arguments qua this. The insurance company is first time taking this contention before this Court at this stage, which is not proper and permissible in view of catena of decisions of the Hon'ble Apex Court. Such contention therefore need not be entertained at

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this stage. This petition therefore needs to be dismissed.

6.3 The other dimension of the matter is that the insurance company has neither lodged police complaint against the owner of the truck nor against the erring officer of the insurance company nor against its agent till date. Further, the insurance company has not rejected the policy, which was allegedly taken by the owner of the truck by suppressing the accident. Therefore, on one hand the insurance company is not vigilant and active qua such action and on the other hand, the insurance company is taking such contention before this Court at this stage. If we encourage the insurance company at this stage for such contention, it would be premium for the insurance company by this Court. Under the circumstances, it would not be just, proper and fair to entertain this appeal of the insurance company. This appeal therefore needs to be dismissed.

6.4 Further, the accident has occurred in the year 2000. The claim petition is of the year 2001. The Tribunal has decided the claim petition in the year 2012. The appeal before this Court is of the year 2013 and we are in the year of 2022. Therefore, it would not be fairness of justice to remand the matter back to the Tribunal for fresh consideration by permitting the parties to lead evidence on record afresh. The Tribunal has even otherwise properly appreciated the evidence on record produced by the rival parties and passed the impugned award. The impugned award therefore does not warrant any interference by this Court. Therefore, I deem it fit to dismiss the appeal, which would meet the ends of justice.

7. For the reasons recorded above, the following order is passed.

7.1 The present appeal is dismissed, with no order as to costs.

       C/FA/1771/2013                          JUDGMENT DATED: 22/06/2022



7.2     The Tribunal shall disburse the entire awarded amount lying in

the FDR and/or with the Tribunal, with accrued interest thereon if any, to the claimant, by account payee cheque, after proper verification and after following due procedure. However, it would be open for the Insurance Company to recover such amount in accordance with law from the tortfeasor(s).

7.3 Record and proceedings be sent back to the concerned Tribunal, forthwith.

8. In view of disposal of main appeal, considering the peculiar facts and circumstances of the case, the Civil Application No.2 of 2013 (No.12735 of 2013) for additional evidence, need not be considered and therefore, it would not survive and is disposed off accordingly.

(SANDEEP N. BHATT,J) M.H. DAVE