Gujarat High Court
The National Insurance Co.Ltd vs Raval Surajben Wd/O. Rumalbhai ... on 3 April, 2025
NEUTRAL CITATION
C/FA/806/2023 ORDER DATED: 03/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 806 of 2023
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THE NATIONAL INSURANCE CO.LTD
Versus
RAVAL SURAJBEN WD/O. RUMALBHAI SHANKARBHAI & ORS.
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Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
MR M A CHAUHAN(11262) for the Defendant(s) No. 1,3
RULE SERVED for the Defendant(s) No. 2,4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/04/2025
ORAL ORDER
1. Heard learned advocate Ms. Lilu Bhaya for the appellant.
Learned advocate Mr. M. A. Chauhan appearing for
respondent Nos.1 and 3 remained absent. Though rule
was served upon rest of the respondents, they remained
absent. Perused the record.
2. The challenge in the present appeal is by the original
opponent No. 4 - Insurance Company challenging the
judgment and award dated 6.4.2018 passed by learned
Motor Accident Claims Tribunal (Aux), Mahisagar at
Lunawada in M.A.C.P. No.1655 of 2017.
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C/FA/806/2023 ORDER DATED: 03/04/2025
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3. The facts in brief of the case are as under:
* On 1.5.2009, deceased was riding a scooter
No.GJ-6QQ-6438 and when he reached near Kanod Padedi
village in a moderate speed. The opponent No.1 - was
driving his motorcycle bearing registration No.GJ-17-H-
6515 in a rash and negligent manner from the opposite
direction and dashed with the deceased. Resultantly,
deceased sustained serious injuries and succumbed.
* Claimants being the legal heirs of the
deceased filed Claim Petition being MACP No.1655 of
2017 before learned Motor Accident Claims Tribunal
(Aux), Mahisagar at Lunawada for a compensation of
Rs.6,00,000/- from the opponents. Opponents were
served with summons.
* Opponent No.1 appeared but did not file
written statement. The claim petition was resisted by
Insurance Company - respondent No.4 by filing Written
Statement at Exh.21 and denied its liability. After framing
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C/FA/806/2023 ORDER DATED: 03/04/2025
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of issues, claimant No.1 submitted examination-in-chief
at Exh.28 and produced FIR, Panchnama, PM report and
documents to substantiate income of deceased.
* After considering the evidence, learned
Tribunal partly allowed the claim petition by directing
opponents to pay an amount of Rs.4,35,664/- to the
claimants with interest @ 9% p.a. with proportionate cost
from the date of application till realisation by holding
driver of the scooterist negligent to the extent of 30%
and the driver of the motorcycle to the extent of 70%.
* Being aggrieved and dissatisfied with the
impugned judgment and award, the Insurance Company -
appellant has filed the present appeal.
4. Learned advocate for the appellant has submitted that the
learned tribunal has held deceased negligent to the extent
of 30%, however, while awarding the total compensation,
deduction of 30% is missed out. It is submitted that
towards negligence, Rs.1,30,699/- is required to be
deducted from the total amount of compensation of
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C/FA/806/2023 ORDER DATED: 03/04/2025
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Rs.4,35,664/- Except the above submissions, no other
submissions are made.
5. I have considered the submissions of learned advocate for
the appellant and perused the impugned judgment and
award. It appears that learned tribunal while considering
the question of negligence has held that the deceased was
negligent to the extent of 30% however, in the operative
part of the order, learned tribunal has not given deduction
of 30% from total award of compensation. When learned
tribunal has observed in the discussion part with regard to
negligence, deduction of 30% ought to have been
considered while passing the final order. Resultantly, it
appears that there is an error committed by learned
Tribunal in calculating compensation.
6. In view of above, the present First Appeal is allowed. The
claimant is entitled to Rs.3,04,965/- (Rs.4,35,664/- minus
Rs,1,30,699/-) from the opponents with interest @ 9% p.a.
from the date of application till realisation. No order as to
costs. Interim Relief, if any, stands vacated forthwith.
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C/FA/806/2023 ORDER DATED: 03/04/2025
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7. Record and Proceedings, if any, be sent back to the
concerned Court / Tribunal, forthwith.
(D. M. DESAI,J)
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