Oriental Insurance Co Ltd vs Heirs Of Vallabhdas Hiralal Patel ...
2023 Latest Caselaw 7356 Guj

                                                                                          NEUTRAL CITATION




       C/FA/3386/2010                                   ORDER DATED: 05/10/2023

                                                                                           undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 3386 of 2010

==========================================================
                    ORIENTAL INSURANCE CO LTD
                               Versus
      HEIRS OF VALLABHDAS HIRALAL PATEL @ FADAD, PUSHPABEN
                        VALLABH & 3 other(s)
==========================================================
Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR KL PANDYA(2923) for the Defendant(s) No. 1,2
MR PRABHAKAR UPADYAY(1060) for the Defendant(s) No. 3,4
==========================================================
     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 05/10/2023
                       ORAL ORDER

1. Being dissatisfied with the quantum of compensation awarded by the claim Tribunal at Nadiad, Kheda, the appellant insurance company has filed present appeal under Section 173 of the Motor Vehicle Act.

2. On 22.03.2007, deceased Vallabhbhai Hirabhai aged about 54 years old, met with an accident when the bike herohonda upon which he was riding, was hit by the offending truck. Due to bursting of the tyre, the driver could not control over the staring as a result the vehicle was dashed with the bike. The deceased sustained fatal injuries and he succumbed to the injuries. The respondents being legal heirs had claimed compensation by preferring claim petition no.575 of 2007. The Tribunal at Nadiad, Kheda vide its judgment and award dated 07.05.2010, by holding the driver of the truck liable in causing the accident, awarded a sum of amount

NEUTRAL CITATION

C/FA/3386/2010 ORDER DATED: 05/10/2023

undefined

Rs.8,37,000/-, directing the insurance company to pay the said amount with interest.

3. The appellant the Oriental Insurance Company Limited being aggrieved with the said judgment and award is before this Court.

4. This Court has heard learned counsels Mr.H.G. Majmudar, Mr.K.L. Pandya and Mr.Prabhakar Upadhyaya for the respective parties.

5. Mr.Majmudar, learned counsel for the insurance company, assailing the judgment and award has contended that the point of negligence having not been properly determined by the Tribunal as the accident occurred due to busting of tyre and no fault can be attributable on the part of the driver and the same having not been appreciated by the Tribunal. He further submitted that the income of the deceased being considered on higher side and therefore, the amount of compensation deserves to be modified.

6. On the other hand, learned advocates for the respondents contended that the alleged incident of busting of the tyre cannot in any manner said to be an Act of God. They further submitted that the learned Tribunal while calculating the income of the deceased has considered the proved income and therefore, the amount determined does not require any reduction.

7. Having heard learned counsels for the respective parties, the point is whether the issue of negligence and quantum determined by the Tribunal needs interference by this Court.

8. In the facts of present case, the factum of accident,

NEUTRAL CITATION

C/FA/3386/2010 ORDER DATED: 05/10/2023

undefined

involvement of the vehicle are not in dispute. On the day of accident, due to busting of the tyre, the bike in question was hit by the involved truck. This Tribunal is of the considered view that this act cannot be equated with the Act of God. The busting of the tyre is in act of human negligence. The driver and/or owner of the vehicle must check the condition of the tyre before traveling. Thus, the busting of the tyre cannot be termed as a natural act. In the facts of present case, in order to discharge their onus to prove the issue, neither the insurance company nor the driver adduced the evidence to prove that before traveling the due care was being taken in relation to the conditions of the tyre of the vehicle. Thus, the learned Tribunal while determining the issue of negligence has rightly taken into consideration the settled principle of law and has not committed any error while fixing the liability on the part of the driver of the vehicle.

9. So far issue of quantum is concerned, the deceased was proprietor of Kishan Engineering Company and was paying regular tax and in order to prove the taxable income, the copy of income tax return produced before the Tribunal. The Tribunal, after considering the proved income, has taken into consideration monthly Rs.11,000/- income. Thus, so far amount awarded under the head of dependency loss, the income determined is based on evidence on record, and therefore, it cannot be said that the income has been assessed on higher side.

10. For the aforestated reasons, this Court finds that the contentions raised herein having no any merits.

NEUTRAL CITATION

C/FA/3386/2010 ORDER DATED: 05/10/2023

undefined

Accordingly, the present appeal stands dismissed. R & P shall be transmitted to the Tribunal concerned. The amount deposited before this Court, if any, shall be transmitted to the Tribunal concerned. The Tribunal shall disburse the entire amount in favour of the respondents claimants. Decree be drawn accordingly.

(ILESH J. VORA,J) Rakesh