Gujarat High Court
Iffco-Tokio Gen.Ins.Co.Ltd vs Arjanji Takhaji Jhala on 3 October, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/4117/2009 ORDER DATED: 03/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4117 of 2009
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IFFCO-TOKIO GEN.INS.CO.LTD.,
Versus
ARJANJI TAKHAJI JHALA & 5 other(s)
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Appearance:
MR CHIRAYU A MEHTA(3256) for the Appellant(s) No. 1
(MR MAHENDRA K PATEL)(1591) for the Defendant(s) No. 5
MR PARESH M DARJI(3700) for the Defendant(s) No. 1,1.1,1.2,1.3
MR SHAILESH V BORISA(2479) for the Defendant(s) No. 5
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 2,3,6
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 03/10/2023
ORAL ORDER
1. This appeal is filed under Section 173 of the Motor Vehicles Act,
1988, by the IFFCO-TOKIO General Insurance Co. Ltd., assailing
the judgment and award dated 04.04.2009, in Claim Petition No.
34 of 2008, passed by the Claim Tribunal, Ahmedabad (Rural).
2. Injured Arjanji Zala, the respondent herein sustained grievous
injuries in a road accident, which took place on 20.05.2008,
between rickshaw and tanker. The injured being a passenger of the
rickshaw, filed a claim petition before the Ahmedabad Tribunal,
claiming compensation Rs.6,00,000/- against the both the vehicles
and their insurance companies. The learned Tribunal after
considering the evidence on record, on the issue of negligence held
both the drivers were negligent in causing the accident and
NEUTRAL CITATION
C/FA/4117/2009 ORDER DATED: 03/10/2023
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accordingly, in the proportionate of 40:60 the issue was
determined. So far quantum is concerned, the Tribunal awarded a
sum of amount Rs.2,80,000/- payable to the injured with interest.
3. Being aggrieved with the determination of negligence on the part
of the rickshaw driver, to the extent of 40%, the Insurer i.e. Iffco-
Tokio Insurance Co. has preferred present appeal.
4. This Court has heard learned counsel Mr. Chirayu Mehta, Ms.
Karuna Rahevar and Mr. Paresh Darji for the respective parties.
5. Mr. Chirayu Mehta, learned counsel assailing the judgment and
award has submitted that the award is contrary to law and evidence
on record. He further submitted that, the Tribunal failed to
appreciate the facts that the FIR was being filed against the driver
of the tanker and in the petition the allegation of negligence being
pleaded against the tanker and in the oral evidence, the injured has
said that, the rickshaw was driving by driver in a medium speed
and was going on its correct side. In such circumstances, the
Tribunal overlooked the said evidence and misdirected itself while
assessing the negligence on the part of the rickshaw driver and said
findings is unsustainable considering the evidence on record and
such conclusion arrived at based on the surmises and conjecture.
6. Mr. Mehta, learned counsel further submitted that the Tribunal has
awarded exaggerated compensation not commensurate with the
evidence on record. No evidence adduced to establish the income
monthly Rs.10,000/- and therefore, the amount of compensation is
NEUTRAL CITATION
C/FA/4117/2009 ORDER DATED: 03/10/2023
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on higher side, deserves to be modified.
7. Ms. Karuna Rahevar, learned counsel appearing for the Oriental
Insurance Co. Ltd., has submitted that the appellate Insurance
Company, before the Tribunal has not adduced any evidence on the
aspect of negligence and therefore, learned Tribunal, relying on the
physical facts of panchnama of the place of accident, has rightly
apportioned the negligence between the two vehicles and same
does not require any interference.
8. Mr. Paresh Darji, learned counsel fairly states that the injured
being a third party, has to recover the amount of compensation
from either of the parties and therefore, he does not argue on
merits.
9. Having heard the learned counsel for the respective parties and
perusal of the material placed on record, the issue falls for
determination is to whether the findings of Tribunal on the
question of negligence as well as quantum requires interference?
10. In the facts of present case, the date of accident and involvement of
the vehicles are not in dispute. The learned Tribunal after
considering the oral evidence of the injured Exh. 28 and
documentary evidence like FIR Exh. 29, and panchnama of place
of incident, assessed the negligence in the proportionate of 40:60.
Before the Tribunal, both the drivers of the vehicles remained
absent and their respective owner as well as insurance companies
have not examined them to establish their defense. In such
NEUTRAL CITATION
C/FA/4117/2009 ORDER DATED: 03/10/2023
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circumstances, the Tribunal has no alternate but to rely on the
contents of the panchnama of place of accident. The Tribunal after
considering the width of the road came to the conclusion that
despite the easy access to both the vehicles, the driver of the
respective vehicles failed to avoid the accident. In such
circumstances, whether speed of the rickshaw was medium or slow
would not be a determinative factor but the care and caution taken
by the driver would decisive factor in assessment of negligence. If
driver of the auto rickshaw would have examined by the appellate
insurance company to establish the carelessness on the part of the
tempo driver, then, the Tribunal might not relied on the contents of
the panchnama and decide the issue accordingly. Thus, therefore,
this court is of considered view that the findings recorded by the
Tribunal in assessing the negligence, are based on the evidence on
record, which does not require any interference by this Court.
11. So far as quantum is concerned, the learned tribunal after
considering the 58 years age of the injured, has awarded the
amount under the head of future loss. The injured sustained two
major fractures for which he was operated by the doctor concerned.
In such circumstances, Tribunal has not committed any error in
taking into consideration 20% disablement. The injured was
agriculturist and was also running restaurant and PCO. The
Tribunal while determining the monthly income of Rs.10,000/- has
considered the revenue records as well as income tax returns. In
such circumstances, considering the nature of injuries and evidence
of income, the Tribunal has rightly determined the monthly income
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C/FA/4117/2009 ORDER DATED: 03/10/2023
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of the injured. So far amount awarded under the various heads are
also seems to be reasonable and just.
12. For the aforesaid reasons, this Court does not find any perversity in
the findings either on the issue of negligence or quantum
determined by the Tribunal. Consequently, the present appeal is
dismissed, being devoid of any merits. The Tribunal shall disburse
the entire amount in favour of the injured with accrued interest, if
any. Decree be drawn accordingly.
(ILESH J. VORA,J)
P.S. JOSHI/4/10
