United India Insurance Company ... vs Navneetbhai C Patel (Since ...
2022 Latest Caselaw 7688 Guj

     C/FA/3353/2010                               JUDGMENT DATED: 08/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3353 of 2010


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.J.DESAI       sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT 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                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
               UNITED INDIA INSURANCE COMPANY LTD
                               Versus
          NAVNEETBHAI C PATEL (SINCE DECEASED) & 4 other(s)
==========================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR NILESH A PANDYA(549) for the Defendant(s) No. 1.1,1.2,2
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 5
UNSERVED EXPIRED (R) for the Defendant(s) No. 3
==========================================================

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

                              Date : 08/09/2022

                     ORAL JUDGMENT

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

C/FA/3353/2010 JUDGMENT DATED: 08/09/2022

1. By way of the present appeal, the appellant - United India Insurance Company of rickshaw bearing registration No.GJ-7-W-232 owned by respondent No.5 - Mansinh Prabhatsinh Gohil, who happens to be owner as well as driver of the rickshaw, has challenged the judgement and award dated 21/12/2009 passed by learned Motor Accident Claims Tribunal (Auxi.), Vadodara in MACP No.1626 of 1999 mainly on two grounds the contributory negligence attributed to the driver of the rickshaw to the extent of 50% as well as quantum of compensation awarded by the learned Tribunal.

The appeal came to be admitted by co-ordinate bench of this Court vide order dated 22/11/2010. Respondents- original claimants have been represented by learned advocate Mr.Nilesh Pandya whereas respondent No.4- The Gujarat State Road Transport Corporation has been represented by learned advocate Ms.Vasavdatta Bhatt.

2. Short facts, arising from the record, are as under:

That one Jigneshbhai son of Navnitbhai Chandubhai Patel along with his friend Bhandish was travelling in a rickshaw bearing registration No.GJ-7-W-232 on 09/06/1999 at around 8:30 pm. When the said rickshaw came near Kokran Hanumanji Temple, at that time, ST bus bearing registration No.GJ-1-Z-4248 came from Samarkha to Nadiad i.e. from opposite side in rash and negligent manner with excessive speed and hit the rickshaw. Pursuant to the said accident, the rickshaw turned turtle, pursuant to which, Jigneshbhai sustained serious injuries and during the transit, he lost his life.

The legal heirs of Jigneshbhai filed a claim petition under section 166 of the Motor Vehicles Act claiming compensation. The respondents filed their written statements and opposed to grant any compensation. Learned Tribunal by the impugned judgement and award

C/FA/3353/2010 JUDGMENT DATED: 08/09/2022

dated 21/12/2009 allowed the petition in part and held that driver of the rickshaw was negligent to the extent of 50% whereas driver of the ST bus was also negligent to the extent of 50% and awarded compensation to the tune of Rs.14,71,372/-. Hence, this appeal.

3. Mr.Maulik Shelat, learned advocate for the appellant - insurance company would submit that learned Tribunal has committed an error in holding liable the driver of the rickshaw to the extent of 50% without any evidence. He would submit that after committing the accident, driver of the ST bus ran away from the spot of incident along with ST bus itself and parked the said bus in the Depo. He would submit that an FIR was also lodged against him for which, he was charge-sheeted by the competent criminal court.

By taking us through the deposition of Bandish Natubhai Gohil at Exh-15, who was examined at the instance of the claimant and who was travelling with the deceased in the rickshaw, he would submit that he has categorically stated that the ST bus came in wrong side and dashed with the rickshaw, pursuant to which, rickshaw turned turtle and the deceased sustained serious injuries. He would submit that there was no cross-examination at the instance of GSRTC, whose employee (driver) had driven the ST bus in full speed in wrong side.

By taking us through the panchnama at Exh-35 drawn on 11/06/1999, i.e. he would submit that the same was drawn on the next day of accident, which suggests that panchnama of ST bus was prepared in the depo. It records that front part of the driver side bumper was broken and parking light of the driver side was also broken. He, therefore, would submit that witness examined at the instance of ST Corporation i.e. driver of the ST Bus, had deliberately not stated the correct facts.

By taking us through the deposition of driver of the ST Bus namely Ambalal Naranbhai at Exh-22, he would submit that he has

C/FA/3353/2010 JUDGMENT DATED: 08/09/2022

deliberately not come forward with the correct facts. He would submit that he has denied that he was driving the vehicle, however, it is undisputed fact that the FIR was lodged against him and he was charge- sheeted for the aforesaid offence. He would submit that State Corporation has not come forward with the details whether the said Ambalal was on duty at the time of accident or not. He, therefore, would submit that entire conduct of the driver establishes that after committing serious accident with the smaller vehicle compared to the ST Bus and the deposition of Bandish establishes that driver of the ST Bus was sole negligent for the accident and therefore, the findings of the Tribunal holding the insurance company of the rickshaw, negligent to the extent of 50%, may be quashed and set aside. He would submit that if the court is of the opinion that driver of the ST bus is sole negligent in this vehicular accident, he would not like to argue the case on quantum.

4. On the other hand, Ms.Vasavdatta Bhatt, learned advocate appearing for respondent No.4 - GSRTC would submit that learned Tribunal has not committed any error in holding the driver of the rickshaw negligent to the extent of 50%. By taking us through the deposition of Ambalal at Exh-22, she tried to support the deposition, however, could not deny that the FIR was lodged against that driver and he was charge-sheeted. She would submit that the appeal may be dismissed. However, GSRTC has not filed any appeal against the judgement and award.

5. Mr.Nilesh Pandya, learned advocate has adopted the arguments canvassed by learned advocate Mr.Maulik Shelat and relied upon the deposition of eye-witness namely Bandish and would submit that the corporation may be held 100% liable.

C/FA/3353/2010 JUDGMENT DATED: 08/09/2022

6. We have heard learned advocates appearing for the respective parties and perused the record and proceedings received from the Tribunal and considered the reasons assigned by the Tribunal.

7. We have also gone through depositions of various witnesses including the eye-witness Bandish, who was traveling in the rickshaw with the deceased, who has categorically stated that ST bus came in full speed in wrong side and dashed with the rickshaw. Pursuant to the said accident, the rickshaw turned turtle and the deceased sustained serious injury. FIR at Exh.34 was lodged immediately against the driver of the ST Bus. Moreover, the fact that panchnama at Exh.35 establishes that driver of the ST Bus after committing the incident, left the place of incident and parked the bus in the depo, wherein panchnama was prepared. Panchnama suggests that front side of driver is damaged; which has been rightly observed by the tribunal.

8. We have also perused the deposition of Bandish at Exh-15 and considered the denial of driver of the ST bus. We are of the opinion that having been guilty of the driving vehicle in full speed in wrong side, driver Ambalal had left the place with bus itself, which creates guilt on his part. Even otherwise, considering the overall facts suggest that driver of the ST bus, which is much bigger than the rickshaw in which the deceased was travelling, we are of the opinion that driver of the ST bus is 100% negligent. Since we have held the driver of the ST Bus 100% negligent, we have not dealt with the amount of compensation awarded by the tribunal. In the result, the appeal is allowed. The impugned judgement and award dated 21/12/2009 passed by learned Motor Accident Claims Tribunal (Auxi.), Vadodara in MACP No.1626 of 1999 is hereby modified and GSRTC is held 100% liable for the accident.

C/FA/3353/2010 JUDGMENT DATED: 08/09/2022

9. The amount, which has been deposited by the appellant- insurance company of the rickshaw shall be refunded to the appellant company of the rickshaw by account payee cheque. The GSRTC is hereby directed to deposit the awarded amount with costs and interest before the Tribunal within a period of 8 weeks from the date of receipt of the order. If the said amount is not deposited within a period of 8 weeks, the same shall be deposited with interest at the rate of 9% per annum from today till the amount is deposited.

10. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.

sd/-

(A.J.DESAI, J)

sd/-

(MAUNA M. BHATT,J)

DIPTI PATEL