Gujarat High Court
Oriental Insurance Company Limited vs Legal Heirs Of Deceased Guliben ... on 28 June, 2024
NEUTRAL CITATION
C/FA/4939/2010 JUDGMENT DATED: 28/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4939 of 2010
With
R/FIRST APPEAL NO. 4940 of 2010
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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ORIENTAL INSURANCE COMPANY LIMITED
Versus
LEGAL HEIRS OF DECEASED GULIBEN VALSINGBHAI DHADKU & ORS.
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Defendant(s) No. 1.1,1.2,1.3
MR PM LAKHANI(1326) for the Defendant(s) No. 2
MR RAHUL K DAVE(3978) for the Defendant(s) No. 1.1,1.2,1.3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
NOTICE SERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 28/06/2024
COMMON ORAL JUDGMENT
NEUTRAL CITATION
C/FA/4939/2010 JUDGMENT DATED: 28/06/2024
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1. These appeals are filed by the appellant-insurance
company under Section 173 of the Motor Vehicles Act, 1988
(`MV Act' for short), being aggrieved and dissatisfied with the
judgment and award dated 15.10.2010 passed by the Motor
Accident Claims Tribunal (Main) Surendranagar in MACP
No.677 of 2001 and allied matters, whereby the claim
petitions of the claimants were partly allowed and the
original opponents were ordered to pay the amount of
compensation as mentioned in the impugned judgment and
award by holding all the opponents jointly and severally
liable.
2. There were four appeals arising out of the four
claim petitions. However, as two of the appeals are
challenging very small amount, the same are disposed of on
the ground of smallness of amount, without entering into the
merits of the case. Therefore, the remaining appeals are
decided by this common judgment, at the request of learned
advocates for the parties.
3. The brief facts leading to filing of the appeals are
such that the claim petitions were filed by the claimants
stating that the deceased were travelling along with the
family in truck No.GJ-3U-6139 on 1.9.2001 along with their
goods and at the place of the accident, one truck was coming
NEUTRAL CITATION
C/FA/4939/2010 JUDGMENT DATED: 28/06/2024
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from opposite direction and another truck which was behind
the said truck coming from opposite direction had tried to
overtake the truck going ahead of it and in the process of
overtaking, the truck wherein the claimants were travelling
and truck no.GJ-1TT-5129 had collided.
4. On issuance of notice, the appellant-insurance
company and the insurance company of the other vehicle
appeared and resisted the claim petitions and raised their
common defence that there is no negligence on their part of
the present applicant and no liability for compensation is
said to have arisen in favour of the claimants, however, the
learned Tribunal held all the opponents liable and passed the
impugned award, which is challenged by the appellant-
insurance company by way of filing these appeals.
5. Heard learned advocates for the parties.
5.1. Learned advocate for the appellant has submitted
that the driver of the truck no.GJ-1-TT-5129 (insured with
United India Insurance Company Limited) was solely
responsible for the accident; that the criminal complaint was
lodged against him; that the driver of the said truck
remained absent during the trial and the driver of the truck
which was insured with the applicant-insurance company died
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C/FA/4939/2010 JUDGMENT DATED: 28/06/2024
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on the spot, which would show that the driver of the truck
no.GJ-1-TT-5129 was responsible for the accident and the
learned Tribunal has erred in holding the drivers of both the
trucks responsible for the accident; that this is a case of
composite negligence and not contributory negligence and
therefore the liability could not have been apportioned
between both the drivers.
6. Per contra, learned advocates for the respondents
have submitted that the award of the learned Tribunal is
just and proper and there is no need of any interference by
this Court. They have submitted that the learned Tribunal,
after considering the oral and documentary evidence produced
on the record, has rightly come to the conclusion that both
the vehicles are contributory negligent for the accident and
has rightly held all the opponents jointly and severally liable
for the accident. They, therefore, submitted that these appeals
be dismissed.
7. I have gone through the record and proceedings
called for from the learned trial Court and also perused the
impugned judgment and award.
8. From the FIR which is filed by one of the persons
travelling in Truck No.GJ-3U-6139 (vehicle insured with the
appellant herein) against the driver of the truck no.GJ-1TT-
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C/FA/4939/2010 JUDGMENT DATED: 28/06/2024
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5129 stating that the truck in which he was travelling was
going in the correct direction and at the place of accident,
one another truck was coming from opposite direction and
one more truck i.e. GJ.1TT5129 came from behind the truck
coming from opposite direction and collided with the truck in
which the complainant was travelling due to which the
accident occurred and some persons were injured and some
persons died. The driver of the truck in which the
complainant was travelling i.e. the truck insured with the
appellant-insurance company died on the spot. On going
through the entire material, the driver of the insurance
company of the other truck against whom the complaint is
filed has remained absent and did not contest the claim
petition. The panchanama of the scene of the accident
supports the said complaint. It is also pertinent to note that
the chargesheet was also filed against the truck driver of the
other vehicle after investigation. The statement of the witness
recorded during investigation also supports the say of the
appellant. Considering all this evidence, the learned Tribunal
is right in holding the drivers of both the vehicles negligent
for the accident. It clearly transpires that this is a case of
composite negligence for claimants and not contributory
negligence. As both the vehicles are heavy vehicles, the
Tribunal ought to have fix 50% liability of each vehicle
looking to the FIR, panchanama and deposition of injured
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C/FA/4939/2010 JUDGMENT DATED: 28/06/2024
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witnesses. The driver of the truck coming from the opposite
direction collided with the truck insured with the appellant
from front side at the time of overtaking the other truck
which was in front of it. Thus, the truck insured with the
appellant-insurance company also be held liable for the
accident. When the said truck is liable for the accident, the
appellant-insurance company with which the truck is insured
is required to pay 50% of the total liability of compensation.
9. At this stage, it will be fruitful to refer to the
judgment in the case of Khenyei V/s New India Assurance
Company Limited and Others, reported in (2015) SCC 273,
wherein the difference between composite negligence and
contributory negligence is clearly distinguished by observing
that "there is a difference between contributory and composite
negligence. In the case of contributory negligence, a person
who has himself contributed to the accident cannot claim
compensation for the injuries sustained by him in the
accident to the extent of his own negligence. Extent of his
negligence is required to be determined as damages
recoverable by him in respect of the injuries have to be
reduced in proportion to his contributory negligence. However,
in the case of composite negligence, a person who has
suffered has not contributed to the accident but due to the
outcome of combination of negligence of two or more other
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persons. In such case, the plaintiff/claimant is entitled to sue
both or any one of the joint tortfeasors in joint and several."
10. In the case on hand, the driver of the vehicle
insured with the appellant is also liable for the accident, as
discussed hereinabove, and therefore this is a case of
contributory negligence, for two vehicles involved and the
learned Tribunal has erred in holding so but not apportioning
the negligence of 50% each. Therefore, the appellant is also
responsible to pay the compensation to the claimants to the
extent of 50% of amount. Hence, the appellant is entitled to
receive amount of 50% from owner of other vehicle and its
insurance company.
11. In turn, in the peculiar facts and circumstances of
the present case, where the passengers are travelling as
gratuitous passengers in the goods vehicle, as is coming out
from the evidence, at the most, it can be said that the
owner of the vehicle insured with the appellant-insurance
company is liable to pay the compensation to the claimants,
but the appellant cannot be held liable for the compensation
in facts of present case as no proof for passengers travelling
with goods was produced by the claimants.
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C/FA/4939/2010 JUDGMENT DATED: 28/06/2024
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12. In view of the above discussion, these appeals are
allowed. As the appellant has already deposited the awarded
amount before the learned Tribunal, the amount lying in
FDR is required to be paid to the claimants by Account
Payee Cheque/NEFT/RTGS after due verification. However,
the appellant-insurance company is at liberty to recover the
amount of compensation, which will be paid by it to the
claimants from the insurance company of the vehicle no.GJ-
1TT-5129 i.e. 50%. In turn, the insurance company of the
vehicle no.GJ-1TT-5129 can recover the amount of
compensation coming to his share from the owner of the
vehicle no.GJ-3U-6139.
13. The Tribunal shall pay to the claimants the entire
amount by account payee cheque/RTGS/NEFT in the bank of
claimants without any delay.
14. Rest of the award remains as it is. Modified decree be
drawn accordingly.
15. Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
