Gujarat High Court
Oriental Insruance Company Ltd vs Legal Heirs Of Decd. Karshanbhai ... on 1 August, 2024
NEUTRAL CITATION
C/FA/4698/2018 ORDER DATED: 01/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4698 of 2018
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
NO. 1 of 2019
In R/FIRST APPEAL NO. 4698 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2017
In R/FIRST APPEAL NO. 4698 of 2018
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ORIENTAL INSRUANCE COMPANY LTD
Versus
LEGAL HEIRS OF DECD. KARSHANBHAI JESANBHAI PATEL (BHATOL) &
ORS.
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Appearance:
MR HARDIK P MEHTA(6943) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR VILAV K BHATIA(5338) for the Defendant(s) No. 1.1,1.2,1.3
MR VISHAL C MEHTA(6152) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/08/2024
ORAL ORDER
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 21.3.2017 passed by the Motor Accident Claims
Tribunal, Banaskantha in Motor Accident Claim Petition
No.712 of 1990, by which, the Tribunal has partly allowed
the claim petition by awarding Rs.5,70,000/- with 9% p.a.
interest to be paid to claimant/s, by holding opponent nos.1
and 2 liable, jointly and severally.
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2. The facts of the present appeal are as under :
2.1 The injured himself filed the claim petition at the first
instance, however, as he died during the pendency of the
petition, his heirs have been ordered to be brought on record.
It is stated that on 22.6.1990 at about 5.00 p.m., the
deceased, after completion of his work from Diamond Factory
was going to Malana by sitting on a motorcycle no.GAE.5718
of the ownership of opponent no.3; when the said motorcycle
was passing from Nansarovar road, Delhi Darwaja area of
Palanpur at the relevant point of time, one rickshaw
no.GJ.8T.225 being driven by its driver in rash and negligent
manner dashed with the motorcycle from back side and
because of the said collusion, the deceased fell down due to
which he sustained grievous injuries and he died during the
treatment. Therefore, the claim petition is filed for
compensation.
2.2 The notices were served to the opponents. All the
opponents filed the written statement. The opponent nos.1
and 2 are the driver/owner of the rickshaw and insurance
company of the rickshaw and opponent no.3 is the owner of
the motorcycle on which the deceased was riding as pillion
rider. The issues were framed by the Tribunal. Oral as well
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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 by holding the opponent nos.1
and 2 liable and dismissed the claim petition qua opponent
no.3.
2.3 Hence, the insurance company of the rickshaw has filed
the present appeal before this Court.
3. Learned advocate for the appellant - Insurance
Company has mainly assailed the impugned judgment and
award on two grounds; one that the driver of the motorcycle-
opponent no.3 was negligent for the accident and therefore
the deceased who was riding as a pillion rider on the said
motorcycle is not entitled for any claim due to the unlawful
act of the driver and owner of the motorcycle; and secondly
that the deceased was discharged from hospital in September,
1990 and he died subsequently in August 1991 and therefore,
there was no proximity between the injuries sustained due to
the accident dated 22.6.1990 and the death of the deceased.
He, therefore, submitted that on these two grounds, the
impugned judgment and award is required to be modified and
the appellant-insurance company is not liable to pay the
compensation. He, therefore, prayed to allow this appeal.
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4. Per Contra, learned advocate for the claimants have
submitted that the deceased was riding as a pillion rider on
the motorcycle and the rickshaw came and dashed from
behind and the deceased fell down and suffered serious
injuries due to which he died for no fault. He submitted that
the learned Tribunal has rightly considered the evidence led
before it and passed the impugned judgment and award
which is just and proper. He, therefore, prayed to dismiss
this appeal.
5. Learned advocate for respondent no.3-owner of the
motorcycle has submitted that he was examined before the
learned Tribunal wherein he has categorically stated that he
was riding the motorcycle and the deceased was sitting on
the motorcycle as pillion rider and one rickshaw came from
back side in fast speed and dashed with the motorcycle and
therefore, the learned Tribunal has rightly held the driver of
the rickshaw driver negligent for the accident and rightly
dismissed the claim petition qua the owner of the motorcycle
as he was not at all negligent for the accident. He, therefore,
submitted that there is no need to interfere with the
impugned judgment and award and therefore, prayed to
dismiss this appeal.
6. I have considered the submissions made by the
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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.
7. From the complaint and panchanama and other
evidence produced on the record and in absence of
examination of the driver of the rickshaw to support the say
that the accident occurred due to the negligence on the part
of the motorcyclist, there is no reason to disbelieve that the
driver of the rickshaw was not negligent for the accident,
more particularly, when the owner and driver of the
motorcycle deposed and submitted that he was riding the
motorcycle and the rickshaw came from behind and dashed
with the motorcycle. Further, the chargesheet is filed against
the driver of the rickshaw and the criminal case is also
initiated against him and therefore it is proved that the
driver of the rickshaw was rash and negligent in driving the
rickshaw and liable for the accident. The finding of the
learned Tribunal is just and proper on this point.
8. On the second point of the nexus between the
accident and the death of the deceased, the judgment of the
criminal case shows that in the vehicular accident, the
deceased sustained grievous injuries and the deceased got
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treatment in civil hospital, Ahmedabad and the death
certificate, MLC certificate, discharge card, prescriptions and
medical bills, medical reports describe the injuries sustained
by the deceased from which it is revealed that he got
paralysis because of the injuries. The medical officer of the
civil hospital, Ahmedabad was examined wherein it is stated
that the deceased had sustained injuries on his neck and
because of that, he got paralysis in both the legs and hands
and he was bed-ridden and that because of the said injuries,
death can be happened. This shows that the deceased
suffered paralysis due to the injuries occurred in the accident
which was not cured till his death and ultimately he died.
Therefore, though there is a gap between the date of accident
and date of death, the deceased was under continuous
treatment for the time and unfortunately, he succumbed to
the said injuries. Therefore, it cannot be said that there is
no proximity between the accident and death. The finding of
the learned Tribunal on this point is just and proper. The
appeal therefore deserves to be dismissed.
9. In view of above ,the following order is passed.
9.1 The present appeal is dismissed with no order as to
costs. The civil applications also stand disposed of in view of
the dismissal of the appeal.
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9.2 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.
9.3 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
