Gujarat High Court
Ushaben Digambar Hammir vs Renishkumar Amrutlal Changela on 9 September, 2024
NEUTRAL CITATION
C/FA/3032/2024 JUDGMENT DATED: 09/09/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3032 of 2024
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 ?
==========================================================
USHABEN DIGAMBAR HAMMIR & ANR.
Versus
RENISHKUMAR AMRUTLAL CHANGELA & ANR.
==========================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/09/2024
ORAL JUDGMENT
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
NEUTRAL CITATION
C/FA/3032/2024 JUDGMENT DATED: 09/09/2024
undefined
dated 28.2.2022 passed by the Motor Accident Claims
Tribunal at Rajkot in Motor Accident Claim Petition No.1837
of 2015, by which, the Tribunal has partly allowed the claim
petition by awarding Rs.6,23,288/- with 9% p.a. interest to be
paid to claimant/s, by holding opponents liable, jointly and
severally, after deducting 50% negligence of the deceased.
2. The facts of the present appeal are as under :
2.1 The claim petition was filed by the claimant/s stating
that the deceased was aged 23 years at the time of accident
and was unmarried and he was serving in Balaji Lime and
was earning Rs.10,000/- per month; that on 6.11.2015, at
about 1.30 p.m., the deceased was driving his motorcycle
no.GJ.03EG.9665 on the left side the road slowly and was
coming towards his home, at that time, on the overbridge at
Greenland choki in Rajkot city, the driver of the opponent
truck came driving his truck in a rash and negligent manner
and the deceased motorcycle dashed it from behind due to
which he sustained serious injuries and he died. Therefore,
the claim petition was filed by the claimants claiming
compensation.
2.2 The notices were served to the opponents. The
opponents filed the written statements before the learned
NEUTRAL CITATION
C/FA/3032/2024 JUDGMENT DATED: 09/09/2024
undefined
Tribunal contesting the contents of the claim petition. The
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 appellant/s-claimants have filed the present
appeal before this Court.
3. Learned advocate for the appellant/s-claimants has
mainly assailed the impugned judgment and award on the
point of negligence. He submitted that the learned Tribunal
has erred in holding the deceased negligent to the extent of
50%, though there is no evidence of independent witness to
show that the deceased has contributed to the accident and
that as the driver of the truck was not examined, the
learned Tribunal ought to have drawn adverse inference
against the respondents; that it is also required to be noted
that the FIR and chargesheet are filed against the driver of
the truck. Learned advocate has relied on the judgment in
the case of United India Insurance Co.Ltd. V/s Rehanaben
Salimbhai Mukindo and others reported in 2019 ACJ 2498
and submitted that the deceased cannot be held negligent for
the accident and therefore this appeal be allowed and the
NEUTRAL CITATION
C/FA/3032/2024 JUDGMENT DATED: 09/09/2024
undefined
impugned judgment and award be modified.
4. I have considered the submissions made at the bar and
perused the impugned judgment and award. It clearly
transpires from the same that the incident has occurred in
the afternoon at 1.30 p.m., therefore, it can be said that it is
broad day light and there are no chances of not seeing the
truck by the motorcyclist. Further, from the complaint filed
by the brother of the deceased, it is stated that he called his
brother as he was in need of the motorcycle and some
rickshaw driver picked up the phone and informed about the
accident and therefore he went to the place of incident and
saw that the truck was lying on the overbridge and his
motorcycle was below the truck from behind and he filed the
complaint within one hour of the accident and stated that as
the truck driver applied sudden brake, his brother's
motorcycle hit the truck was behind and slide below it and
his brother died due to injuries. Even the panchanama
reiterates the same. The deposition of the truck owner also
states that as there was some default in the truck, it was
going at a speed of about ten per km., which is very slow,
and the motorcyclist hit it from behind and the accident
occurred. Thus, from the complaint, panchanama of scene of
offence, evidence of the applicant/s-claimant/s and the
deposition of the owner of the truck, goes to prove
NEUTRAL CITATION
C/FA/3032/2024 JUDGMENT DATED: 09/09/2024
undefined
undisputedly that the accident as the motorcyclist hit the
truck from behind. The said impact shows the rash and
negligent driving and overspeeding of the motorcycle, as if
the motorcyclist was in slow speed, he could have controlled
the motorcycle timely and the impact could not have been to
such an extent that he lost his life. From the above
discussed evidence of FIR, panchanama etc. and applying the
principle of res ipsa loquitor also, the motorcyclist should
have been held more negligent for the accident.
5. Judgments cited by learned advocates for the parties
are to be seen and applied on later, but firstly, the evidence
produced on record in the form of FIR, panchanama,
depositions etc. are to be seen and from the same, there is
no scope seen to reduce the negligence on the part of the
motorcyclist. In that view of the matter, the judgment relied
on by learned advocate for the appellant/s-claimant/s is not
considered in detail.
6. In the above view of the matter, this appeal is required
to be dismissed at admission stage itself.
7. In view of above, the following order is passed.
7.1 The present appeal is dismissed with no order as to
costs.
NEUTRAL CITATION
C/FA/3032/2024 JUDGMENT DATED: 09/09/2024
undefined
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
