Gujarat High Court
United India Insurance Co.Ltd vs Pravinbhai Ganpatbhai Rathod on 15 February, 2023
Bench: Gita Gopi
C/FA/1709/2019 JUDGMENT DATED: 15/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1709 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/FIRST APPEAL NO. 1709 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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
PRAVINBHAI GANPATBHAI RATHOD
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Appearance:
MR ANAL S SHAH(3988) for the Appellant(s) No. 1
MR JINESH H KAPADIA(5601) for the Defendant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 3
NOTICE NOT RECD BACK for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/02/2023
ORAL JUDGMENT
1. The challenge is given to the judgment and
order passed in MACP No.419/15 dated
C/FA/1709/2019 JUDGMENT DATED: 15/02/2023
31.1.2018 by MACT (Aux), Vadodara at Savli.
2. Mr. Anal Shah, learned advocate for the
appellant submits that the accident had
occurred due to negligence of both the
drivers and the aspect of composite
negligence of the driver of the tempo ought
to have been considered and thereby, the
learned Tribunal could have considered the
contributory negligence of tempo driver to
the extent of 50%. Mr. Shah further states
that the driving license of the opponent
no.1 - driver of the tanker no. GTY - 6572
was not valid and effective on the date of
the accident and he was not holding the
license to drive the said tanker and
therefore, the appellant - insurance Company
should not be held liable to pay the
compensation amount awarded. At the same
time, Mr. Shah has brought to the notice of
this Court the judgment dated 31.7.2019
C/FA/1709/2019 JUDGMENT DATED: 15/02/2023
passed in First Appeal no.2007 of 2019
arising out of MACP No.420 of 2015.
3. Mr. Jinesh Kapadia, learned advocate for the
opponent no.1 - claimant, supporting the
judgment of the Tribunal, submits that the
Coordinate Bench of this Court in First
Appeal no.2007 of 2019 has taken the
consistent view for the reasons given by the
Tribunal and thus, submits that the amount
granted is just and reasonable and the said
contention, which has been raised in the
present appeal, has already been decided by
the Coordinate Bench in First Appeal no.2007
of 2019. Hence, by adopting the same, Mr.
Kapadia submits that now there would not be
any interference with the reasons given by
the Tribunal.
4. Mr. Modi, learned advocate for the owner of
the tempo, too supported the judgment of the
C/FA/1709/2019 JUDGMENT DATED: 15/02/2023
Tribunal and states that the order of the
Tribunal is just, proper and reasonable.
5. It appears that the grounds which have been
raised by the insurance Company are
regarding the negligence and also contended
that the driver was not having valid and
effective license on the date of the
accident. The facts of the case suggest that
on 27.2.2002 at about 08.30 hrs., the
claimants were proceeding towards Vadodara
in a tempo bearing registration no. GJ-6 V-
6107, which was driven in moderate speed and
correct side of the road following the
traffic rules and regulations. When the
tempo reached near Kathariya Stand on Vasad-
Asodar road, at that time, driver of tanker
bearing registration no. GTY-6572 came from
the opposite direction in a very excessive
speed rashly and negligently, lost control
over the steering and dashed the vehicle in
C/FA/1709/2019 JUDGMENT DATED: 15/02/2023
which the claimants were traveling who
sustained injuries because of the vehicular
accident.
6. The Coordinate Bench has observed regarding
the negligence aspect in Paragraphs 13 and
14, which read as under:-
"13. With regard to the aspect
of negligence, learned advocate
submitted that the Tribunal has
given finding of fact on the basis
of complaint at Exh.24, panchnama
at Exh.25 and after considering
the same, the Tribunal has held
that driver of the tanker was
solely negligent in causing the
accident.
14. Having considered the rival
submissions made by both the
sides as well as oral and
documentary evidence on record,
it emerges that the Tribunal
has taken into consideration
complaint at Exh.24, panchnama at
Exh.25, to decide the issue of
negligence. The complaint is filed
by conductor/cleaner of the tanker
Vinodbhai Shivkumar who is
brother of driver of the
tanker. It is stated in the
complaint that while plying the
vehicle, driver of the tanker was
C/FA/1709/2019 JUDGMENT DATED: 15/02/2023
trying to overtake an unknown
vehicle, as a result of which,
driver lost control over the
tanker and caused accident. Spot
panchnama at Exh.25 indicates that
the accident occurred on an open
road i.e. VasadAsodar road. Thus,
had the driver of the tanker taken
little care while driving the
tanker which is a heavy vehicle,
the accident could have been
averted. The Tribunal on the
basis of evidence on record
correctly attributed sole
negligence on part of the driver
of the tanker."
7. With regard to contention raised of driving
license, the observations made in Paragraph
17 are reproduced hereinbelow:-
"17. It was submitted by the
learned advocate for the
appellantinsurance company that
there was clear breach of policy
condition since the driver was not
having valid and effective driving
license. The Tribunal has
considered the above submission
and referring to the settled
legal position on the issue, held
that driver of tanker was having
valid and effective driving
license, which requires no
interference. The Tribunal
thereafter looking to the
C/FA/1709/2019 JUDGMENT DATED: 15/02/2023
insurance policy covering the
insurance of the tanker during
the period of accident, held the
insurance company along with
driver and owner of the tanker
liable to satisfy the award."
8. Thus, considering the reasons and
contentions raised, The Coordinate Bench did
not find any merit in the appeal filed by
the appellant-United India Insurance Company
Ltd. and in view of the findings of facts
arrived at by the Tribunal on the basis of
the oral and documentary evidence on record,
the Coordinate Bench did not deem fit to
interfere in the impugned judgment and award
passed by the Tribunal.
9. The same contention has been raised here in
the present matter. The observations made by
the Tribunal in the common judgment and
award have been appreciated by the
Coordinate Bench in First Appeal no.1709 of
2019. The impugned judgment and award is
C/FA/1709/2019 JUDGMENT DATED: 15/02/2023
also on same facts and contentions raised.
Since the reasons given by the Tribunal
found consistent with the Coordinate Bench,
this Court also does not find any reason to
interfere with the reasons assigned by the
Tribunal. Thus, in consistent view of the
Coordinate Bench, the present appeal stands
dismissed. Stay granted earlier in Civil
Application no.2 of 2018 stands vacated and
the amount be disbursed in accordance to the
ratio laid down by the Tribunal.
(GITA GOPI,J)
Maulik
