Icici Lombard General Insurance ... vs Bhartiben Viththalbhai Sabhad
2022 Latest Caselaw 9199 Guj

      C/FA/453/2013                                JUDGMENT DATED: 18/10/2022




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 453 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.J.DESAI

and

HONOURABLE MRS. JUSTICE MAUNA M. BHATT

=============================================

 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 ?


=============================================
     ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED
                           Versus
          BHARTIBEN VITHTHALBHAI SABHAD & 7 other(s)
=============================================
Appearance:
MR NINAD SHAH, ADVOCATE for ADITI S RAOL(8128) for the Appellant No. 1
MAITRI P PATEL(8126) for the Defendant(s) No. 1,2,3,4
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 8
RULE SERVED for the Defendant(s) No. 5,6,7
=============================================

 CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 18/10/2022

                             ORAL JUDGMENT

C/FA/453/2013 JUDGMENT DATED: 18/10/2022

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. By way of present appeal under Section 173 of the Motor Vehicles Act, 1988, the appellant - Insurance Company of the Truck bearing registration No.GJ-4-U-5354, has challenged the judgment and award dated 16.10.2012 passed by the Motor Accident Claims Tribunal (Auxi.), Court No. 18, Ahmedabad in Motor Accident Claim Petition No. 1110 of 2007, by which, the Tribunal has awarded an amount of Rs.20,90,500/- with running interest at the rate of 9% per annum from the date of filing the application till realization holding the driver of truck sole negligent for the accident.

2. The appeal has been filed on the ground of challenging the findings of the negligence, by which, it has been held that the driver of the truck is sole negligent as well as compensation awarded by the Tribunal.

3. Record and proceedings of the Motor Accident Claim Petition No. 1110 of 2007 has been called for and placed before this Court for perusal of this Court.

4. Short facts arise from the record are as under:

4.1. That on 03.10.2007 at around 8.00am, Vitthalbhai Rahabhai Sabhad, as a pillion rider, was traveling along with Vikrambhai Kalubhai Sabhad on motor cycle bearing

C/FA/453/2013 JUDGMENT DATED: 18/10/2022

registration No.GJ-18-L-8588 in slow speed on the correct side and when they reached near Rohisana around 9.00am, one Truck bearing registration No,GJ-4-U-5354 came with full speed in rash and negligent manner, which was driven by Mukeshkumar Jaswantbhai Gadhadara in wrong side and dashed with the motor cycle, pursuant to which, Vitthalbhai fell down from the motor cycle and the said truck ran over him, pursuant to which, he sustained injuries and succumbed to the injuries. An FIR being C.R.No.I-161 of 2007 with Botad Police Station was registered against the driver of the truck at the instance of Vikrambhai, who was driving the motor vehicle. Charge sheet was filed against the driver of the truck.

4.2. The legal heirs of Vitthalbhai filed petition under Section 166 of the Motor Accident Claims Petition and claimed compensation of Rs.30,00,000/-. The respondents filed written statements and opposed the petition. The Tribunal, after considering the evidence led by the legal heirs about the income of the deceased, the witness examined by the claimants and police papers, came to the conclusion that the truck driver was sole negligent for the accident. The truck driver was not examined by the Insurance Company. The Tribunal allowed the petition in part.

4.3     Hence, this appeal.






      C/FA/453/2013                           JUDGMENT DATED: 18/10/2022

5. Mr.Ninad Shah, learned advocate for Ms. Aditi Raol learned advocate for the appellant - Insurance Company, submitted that though, the appeal was filed for compensation awarded by the Tribunal as well as on the ground of sole negligence arrived at by the Tribunal, in view of the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680, the appellant - Insurance Company does not want to challenge the quantum part and the same is dealt with herein after.

6. Mr.Ninad Shah, learned advocate for Ms.Aditi Raol learned advocate for the appellant - Insurance Company, submitted that the Tribunal has committed error in holding the driver of the truck sole negligent. In support of the submissions, he would submit that the driver of motor cycle, which was driven by the Vikrambhai, lodged an FIR C.R.No.I-161 of 2007 with Botad Police Station at Exh. 75, has categorically stated that subsequent to the accident, Vitthalbhai fell down in the middle of the road and therefore, the driver of the motor cycle be held 50% negligent. By taking us through the deposition of Vikrambhai at Exh.86, and particularly, in cross-examination, he has stated that there are contradictions about the manner and method, in which, the accident occurred. He, therefore, would submit that the driver of the

C/FA/453/2013 JUDGMENT DATED: 18/10/2022

motor cycle also be held negligent for the occurrence of the accident. He, therefore, would submit that appeal may be allowed.

7. On the other hand, Ms. Maitri Patel, learned advocate for the original claimants as well as Mr. Maulik Shelat, learned advocate for the Insurance Company of the Motor Cycle, have opposed this appeal and supported the findings of the Tribunal. By taking us through the panchnama of scene of incident at Exh.67 and FIR at Exh.75, learned advocate for the claimants would submit that the driver of the truck was sole negligent in commission of the offence. She would submit that in the FIR, prime witness i.e. driver of the motor cycle has specifically stated that the truck driver came with full speed in rash and negligent manner on the wrong side and dashed with the motor cycle, pursuant to which, the deceased fell from the motor cycle and received severe injuries and succumbed to injuries. By taking us through the panchanama at Exh.67, she would submit that the Tribunal has rightly appreciated the panchanama and the same does not call for any interference. By taking us through the deposition of Vikrambhai at Exh. 86, she has categorically stated about the manner and method, in which, the truck was driven. She would submit that there is no contradiction in the said deposition. She would further submit that the Insurance

C/FA/453/2013 JUDGMENT DATED: 18/10/2022

Company has not examined the driver of the Truck before the Tribunal and the say of the eye witness has rightly been believed by the Tribunal. She, therefore, would submit that appeal be dismissed.

8. Mr. Maulik Shelat, learned advocate appearing for the Insurance Company of the Motor cycle, has supported the arguments made by learned advocate appearing for the original claimants.

9. We have heard learned advocates appearing for the respective parties. As stated herein above, in view of the decision in the case of National Insurance Company Limited vs. Pranay Sethi (Supra), there is no challenge in the quantum part at the instance of the appellant. We deal with the submissions made by learned advocate for the appellant as far as who was negligent for occurrence of the accident. We have also gone through the the record and proceedings and, particularly, FIR at Exh 75, Panchama of the scene of incident at Exh. 67 and in FIR at Exh. 75, it has been categorically stated that the driver of the truck came with full speed in rash and negligent manner on wrong side and dashed with the motor cycle. It is also pertinent to note that for the said offence, the driver of the truck was charge sheeted by the Investigating Officer.

C/FA/453/2013 JUDGMENT DATED: 18/10/2022

10. Apart from above aspect, Vikrambhai, who has been examined at Exh.86, has categorically stated that the truck came in wrong side with full speed in rash and negligent manner. We do not accept the submissions of learned advocate for the appellant Insurance Company that there is contradiction about the manner and method, in which, the accident occurred and accordingly, we accept the deposition of the said eye witness about seeing opposite vehicle i.e. truck and also reject the submission about the contributory negligence of the driver of the motor cycle. We, therefore, upheld the judgment and award of the Tribunal. Hence, appeal is dismissed.

11. Record and proceedings be sent back to the concerned Tribunal.

(A.J.DESAI, J)

(MAUNA M. BHATT,J) *F.S.KAZI.....