Gujarat High Court
National Insurance Co Ltd vs Yuvraj Ramdas Mali on 1 August, 2024
NEUTRAL CITATION
C/FA/3860/2011 JUDGMENT DATED: 01/08/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3860 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. 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 ?
==========================================================
NATIONAL INSURANCE CO LTD
Versus
YUVRAJ RAMDAS MALI & ORS.
==========================================================
Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
for the Defendant(s) No. 4,5
MR.HIREN M MODI(3732) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/08/2024
ORAL JUDGMENT
NEUTRAL CITATION
C/FA/3860/2011 JUDGMENT DATED: 01/08/2024
undefined
1. The present appeal is filed by the appellant - Insurance
Company under Section 173 of the Motor Vehicles Act, being
aggrieved by and dissatisfied with the judgment and award
dated 25.10.2010 passed by the Motor Accident Claims
Tribunal (Aux.), Surat in Motor Accident Claim Petition
No.334 of 2007, by which, the Tribunal has partly allowed
the claim petition by awarding Rs.8,60,000/- with 7.5% p.a.
interest to be paid to claimant/s, by holding opponents liable,
jointly and severally.
2. The facts of the present appeal are as under :
2.1 The claimants filed the claim petition stating that
the deceased met with an accident on 14.8.2006 while plying
on a motorcycle no.MH-18-S-3714 and when he reached
Karanj village at Dhulia highway, the opponent no.1 drove
truck no.CG.04G.9752 owned by opponent no.2 rashly and
negligently and in violation of traffic rules and dashed with
the motorcycle due to which the deceased fell on the road,
sustained injuries and succumbed to the injuries. Therefore,
the claimants filed the claim petition for compensation.
2.2 The notices were served to the opponents. Opponents
No.1 & 2 have not filed their reply. The opponent no.3-
insurance company has also filed its written statement. The
NEUTRAL CITATION
C/FA/3860/2011 JUDGMENT DATED: 01/08/2024
undefined
issues were framed by the Tribunal. Oral as well as
documentary evidence were led before the Tribunal. After
hearing the submissions made by the rival parties, the
Tribunal has partly allowed the claim petition(s) and awarded
compensation as noted above.
2.3 Hence, the insurance company has filed the present
appeal before this Court.
3. Learned advocate for the appellant - Insurance
Company has mainly contended that the involvement of the
vehicle insured with the appellant-insurance company in the
accident is doubtful as, on the day of the accident i.e.
15.8.2006 at 00.15 hours, the information is received by the
head constable that the unknown vehicle has hit motorcyclist
resulting into death of the deceased; that as per the
telephone call naming the insured vehicle involved in the
accident was received by the police inspector 21 days prior to
the alleged date of accident; that there is discrepancy in the
cross-examination of the father of the deceased wherein it is
stated that the deceased was staying with him at Surat and
as per the employer's witness Shri Mahajan, in his cross-
examination, it is stated that the deceased was staying at
Mulund at the time of accident. She, therefore, submitted
that when the involvement of the vehicle in the accident
NEUTRAL CITATION
C/FA/3860/2011 JUDGMENT DATED: 01/08/2024
undefined
itself is doubtful, the learned Tribunal ought not to have
allowed the claim petition and ought not to have passed the
impugned judgment and award. She further submitted even if
the involvement of the said truck is assumed to be there in
the accident, then also, it is a case of contributory negligence
as the deceased himself was also responsible for the accident
and therefore, the impugned judgment and award is required
to be modified by allowing this appeal.
4. Per contra, learned advocate for the claimants has
submitted that the learned Tribunal has considered the FIR,
panchanama, deposition on behalf of the parties and other
documentary evidence adduced before it and then has passed
the impugned judgment and award, which is not required to
be interfered with by way of this appeal. He, therefore,
submitted to dismiss this appeal.
5. I have considered the submissions made by the
respective parties. I have perused the record and proceedings.
I have gone through the impugned judgment and award
passed by the Tribunal. I have also considered the pleadings
of the parties before the Tribunal.
At the outset, the ground taken in this appeal of non-
involvement of the truck insured with the appellant-insurance
NEUTRAL CITATION
C/FA/3860/2011 JUDGMENT DATED: 01/08/2024
undefined
company is not taken before the learned Tribunal even in the
written statement or at the time of arguments. Further, the
factum of accident is not disputed. The panchanama shows
that the motorcycle on which the deceased was going is
found at the place of incident and it was extensively
damaged and therefore, it shows the negligence of the driver
of the truck-opponent no.1. The appellant-insurance company
has taken the point of contributory negligence before the
learned Tribunal. While dealing with it, the learned Tribunal
has observed that the driver of the truck-opponent no.1 is
not examined who would be the best person to narrate how
the accident has occurred and therefore, in absence of any
positive evidence from the insurance company, the learned
Tribunal did not believe that the deceased was negligent for
the accident and on the theory of big and small vehicle
involved in the accident, held the driver of the truck insured
with the appellant-insurance company negligent for the
accident. Even the chargesheet is filed after investigation
against the truck driver-opponent no.1. Therefore, the said
finding of the learned Tribunal is not required to be
disturbed in this appeal.
6. On the point of quantum, the learned Tribunal
has discussed the income of the deceased, age of the
deceased, future prospects, number of dependents and
NEUTRAL CITATION
C/FA/3860/2011 JUDGMENT DATED: 01/08/2024
undefined
considered the various judgments of the Hon'ble Apex Court
and awarded the compensation, which is also just and proper.
The appeal therefore deserves to be dismissed.
7. In view of above, the following order is passed.
7.1 The present appeal is dismissed with no order as to
costs.
7.2 The amount lying with the Tribunal and/or in the FDR,
pursuant to the order of this Court if any, shall be disbursed
to the claimant, along with accrued interest thereon if any,
by account payee cheque, after proper verification and after
following due procedure, within a period of six weeks from
today.
7.3 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
