Gujarat High Court
National Insurance Company vs Rajeshbhai Gangaram Santani on 2 August, 2024
NEUTRAL CITATION
C/FA/866/2008 JUDGMENT DATED: 02/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 866 of 2008
With
R/FIRST APPEAL NO. 2334 of 2008
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2008
In R/FIRST APPEAL NO. 2334 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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NATIONAL INSURANCE COMPANY
Versus
RAJESHBHAI GANGARAM SANTANI & ORS.
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR KL PANDYA(2923) for the Defendant(s) No. 1.1,1.2,1.3,1.4
MR SHASHIKANT S GADE(1706) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 2,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/08/2024
COMMON ORAL JUDGMENT
NEUTRAL CITATION
C/FA/866/2008 JUDGMENT DATED: 02/08/2024
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1. The present appeals are filed by the appellant -
Insurance Companies under Section 173 of the Motor Vehicles
Act, being aggrieved by and dissatisfied with the judgment
and award dated 7.8.2007 passed by the Motor Accident
Claims Tribunal (Aux.), Nadiad in Motor Accident Claim
Petition No.550 of 2004, by which, the Tribunal has partly
allowed the claim petition by awarding Rs.12,46,000/- with 8%
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 claim petition was filed by the claimants
stating that when the deceased was travelling in luxury bus
no.GJ.1.XX.8051 and coming towards Ahmedabad, at about
8.00 hours on Rajkot-Ahmedabad highway, near Baldana
village, the driver of the truck no.H.R.37.6896 came in full
speed rashly and negligently and dashed with the bus from
front side, due to which the deceased suffered injuries and he
died. Therefore, the claimants filed the claim petition seeking
compensation.
2.2 The notices were served to the opponents. Opponent
nos.1 and 3 did not file reply. Opponent nos.2 and 4 filed
reply and denied the contents of the claim petition. The
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C/FA/866/2008 JUDGMENT DATED: 02/08/2024
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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. The learned Tribunal held the
luxury bus driver 80% negligent and the driver of the truck
20% negligent.
2.3 Hence, the insurance company of the luxury bus and
the insurance company of the truck involved in the accident
have filed the captioned appeals mainly on the ground of
negligence.
3. Learned advocate for the appellants - Insurance
Companies have submitted that the learned Tribunal has
erred in holding the negligence of both the drivers at 80%
and 20%. Learned advocate for the insurance company with
whom the luxury bus is insured has submitted that the
driver of the truck was negligent as it was coming in the
middle of the road and dashed with the bus which was on
the correct side. Therefore, the learned Tribunal ought not to
have apportioned 80% negligence on the part of the driver.
The learned advocate appearing for the insurance company
with whom the truck is insured has submitted that the
luxury bus tried to overtake the truck and did not take care
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C/FA/866/2008 JUDGMENT DATED: 02/08/2024
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while doing so and therefore the learned Tribunal has
committed error in apportioning the liability of the truck at
20%.
4. Per contra, learned advocate for the claimants has
submitted that the learned Tribunal has passed the impugned
award after considering the oral and documentary evidence on
record and therefore this appeal may be dismissed.
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.
6. From the impugned judgment and award, it transpires
that the learned Tribunal has considered the documentary
evidence i.e. the FIR, panchanama of place of offence etc.
and according to that, the deceased was travelling in the
luxury bus and the FIR was filed by one another passenger
who stated that there were about 30 to 40 passengers in the
bus and when the bus reached Baldana patiya, as accident
took place and therefore one side of the road was closed and
at that time, at about 8.00 hours, one big truck was coming
from the opposite side and the bus tried to cross the truck,
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C/FA/866/2008 JUDGMENT DATED: 02/08/2024
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however, could not do so and dashed with the truck. Further,
looking to the panchanama, it says that the front side of
both the luxury bus and truck were crushed and the driver's
side of the luxury bus was crushed whereas the entire front
portion of the truck was crushed, and the eye witness to the
incident has stated that the luxury bus driver tried to make
a sharp curve and cross the truck, however, looking to the
front portion of the truck which shows that both the
conductor and driver side is crushed, it cannot be said that
there is no negligence on the part of the truck driver. The
complaint is filed only against the luxury bus driver and as
both the drivers have expired, abate summary is filed against
both of them. By discussing these documents, the learned
Tribunal has observed that if the accident would have
occurred only due to the negligence of the luxury bus driver,
then the entire front portion of the truck would not have
crushed. It seems that the truck was also coming in the
middle of the road rather than plying on the edge of the
road. Therefore, though the luxury bus was more negligent in
causing the accident, it cannot be said that the driver of the
truck has not at all contributed to the accident. Hence, the
apportionment of the negligence of the luxury bus driver and
the truck of 80% and 20% is totally justifiable and there is
no need of any interference by this Court. The appeals,
therefore, require to be dismissed.
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C/FA/866/2008 JUDGMENT DATED: 02/08/2024
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7. In view of above, the following order is passed.
7.1 The present appeals are dismissed with no order as to
costs. As the appeals are dismissed, no order is required in
the civil application and accordingly, the same is also
dismissed.
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
