Gujarat High Court
Anil Manubhai Mehta vs Abdulbhai Jusabbhai on 6 February, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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C/FA/4540/2010 JUDGMENT DATED: 06/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4540 of 2010
With
R/FIRST APPEAL NO. 1180 of 2010
With
R/FIRST APPEAL NO. 4541 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
✓
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ANIL MANUBHAI MEHTA & ORS.
Versus
ABDULBHAI JUSABBHAI & ANR.
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Appearance:
MR KIRAN C MEHTA(2718) for the Appellant(s) No. 1,2,3
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 06/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. These captioned First Appeals are filed challenging the
common judgment and award dated 31.07.2009 passed by the
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learned Motor Accident Claims Tribunal-Main, Surendranagar
in Motor Accident Claim Petition Nos.67 to 69 of 1998. The
First Appeal No.4540 of 2010 is filed by the appellants-
original claimants of MACP No.67 of 1998 and First Appeal
Nos.1180 of 2010 is filed by the appellant-Insurance
Company and First Appeal 4541 of 2010 is filed by the
appellants-original claimants of MACP No.68 of 1998.
2. Heard learned advocate Mr. Kiran C. Mehta for the
appellant/s and learned advocate Mr. G.C. Mazmudar for
respondent/s.
3. Since the issue involved in the captioned First Appeals
are on the identical facts, upon the request of learned
advocates for the respective parties, all appeals are decided
together.
4. The brief facts of the case are as under:-
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4.1. On 17.12.1997, claimant No.1 with his wife and two
children started his journey from Ahmedabad to
Surendranagar in Maruti fronty Car bearing Registration
No.GJ-13-A-0280. When the said car reached near Lakhtar, a
truck bearing Registration No.GRP-4712 was coming on
wrong side of the road in a very high speed and also in a rash
and negligent manner. When the driver of the Maruti fronty
car namely claimant No.1-Anil Manubhai Mehta saw the truck
coming from opposite direction on wrong side, he took his car
on extreme left side i.e. on the Kachcha road. However, there
was headon collusion between the two vehicles and because of
the high speed of the truck , the Maruti fronty car got turtled in
a ten feet ditch on the left hand side of the road, resultantly,
the claimant No.1-Anil Manubhai Mehta and his two minor
children sustained serious injuries and wife of the claimant
No.1-Nimishaben succumbed because of injuries. Three claim
petitions were filed by claimants namely MACP No.67 of
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1998 by the heirs of deceased-Nimishaben claiming
compensation of Rs.30,00,000/- from the opponents. MACP
No.68 of 1998 was filed by Anil Manubhai Mehta claiming
compensation of Rs.9,70,000/- for sustaining injuries out of
the accident and MACP No.69 is filed by the Minor Upasi
through her guardian for claiming compensation of
Rs.35,000/- Insurance Company appeared and filed Written
Statement at Exhibit-10. Driver-cum- owner of the truck did
not contest the application. Issues were framed at Exhibit-17.
Claimants produced FIR at Exhibit-83 and Panchnama at
Exhibit-84. Since all claim petitions were arising out of the
same accident, by common judgment and award dated
31.07.2009, learned Tribunal-Main-Surendranagar partly
allowed claim applications. Learned Tribunal awarded
Rs.7,60,000/- as compensation in MACP No.67 of 1998 and
after holding the driver of the Maruti fronty car negligent at
30% awarded compensation Rs.5,32,000/- with 9% from the
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date of the application till realization. In MACP No.68 of
1998, learned Tribunal awarded Rs.8,49,400/- as
compensation which includes damage to the Maruti fronty car
to the tune of Rs.1,00,000/- and after holding the driver of the
Maruti fronty car negligent at 30% awarded compensation
Rs.5,94,580/- with 9% from the date of the application till
realization.
4.2. In Motor Accident Claim Petition No.69 of 1998,
learned Tribunal awarded Rs.15,000/-/- as compensation and
after holding the driver of the Maruti fronty car negligent at
30% awarded compensation Rs.10,500/- with 9% from the
date of the application till realization. No appeal is preferred
against the judgment and award passed in MACP No.69 of
1998 by either of the parties.
4.3. Being aggrieved and dissatisfied with the findings of
holding driver of the Maruti car 30% negligent, appeals are
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filed by the claimants being First Appeal No.4540 of 2010 and
First Appeal No.4541 of 2010. Insurance Company challenged
the award of granting damage to the Maruti fronty car by
filing First Appeal No.1180 of 2010.
5. Learned advocate for the appellant-original claimants
submitted that learned Tribunal has committed an error by
holding driver of Maruti fronty car negligent to the extent of
30%. To substantiate his submissions, learned advocates has
placed reliance upon the panchnama at Exhibit-51 and the
oral deposition of claimant No.1 who also happens to be an
eye-witness. It is the case of the claimants that on seeing the
truck coming in rash and negligent manner and that to on the
wrong side of the road, he slowed down his car and went on
the extreme left edge of the road to avoid the collusion.
However, the truck was coming in such a speed that Maruti
fronty car was thrown in ten feet deep ditch. As per the
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panchnama, the car was found 80 feet away from the point of
impact. The driver of the offending truck has not come
forward and deposed on oath on the count of negligence. In
absence of any contrary evidence, learned Tribunal has erred
in deciding the question of negligence. It is further submitted
that if the finding of negligence at 30% is set aside, claimants
would not claim any compensation except future loss of
income, actual loss of income, special diet food, pain shock
and suffering and damage to the car.
6. Learned advocate for the Insurance Company submitted
that findings which have been arrived at by the learned
Tribunal on the issue of negligence may not be disturbed in
the background of the evidence available on record. It is
further pointed out that learned Tribunal has rightly
considered the negligence of the driver of the Maruti fronty
car at 30%. By way of appeal, the Insurance Company has
challenged the award of Rs.1,00,000/- which is passed by the
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learned Tribunal under the head of damage to the car. It is
submitted that Insurance Company of the Maruti Car has
settled the claim of damage to the car and has awarded
Rs.1,50,000/- to the claimants under the own damage policy.
It is submitted that when the claimant is already compensated
by another Insurance Company for the same cause of action
consequent to the same accident, the respondent's claimants
are not entitled to double payment of compensation and relied
upon a decision in the case of National Insurance Company
Limited Vs. Sebastian K. Jacob reported in (2009) 4 Supreme
Court Cases 778.
7. We have considered the submissions canvassed by the
learned advocates for the parties and perused the record and
proceedings. While determining compensation, one of the
aspects which is required to be taken into consideration is the
question of negligence. The amount of compensation, other
than other factors, is dependent upon the issue of negligence.
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When the offending vehicle is found negligent in the
occurrence of accident, which has resulted into a death or
bodily injury of any person, the Insurer of the offending
vehicle is required to compensate the affected parties by
paying compensation. In the present case, while assessing the
papers and more particularly, the oral deposition of Anil
Manubhai Mehta and the panchnama of the scene of accident,
it can be culled out that truck was not only coming at an
excessive speed but also coming on the wrong side of the
road. The impact of dashing of truck with the car was such
that the car was thrown away at the distance of 80 feet and
also got turtled in a ten feet deep ditch on the left side of the
road. The oral deposition of the claimant, who happens to be
an eye witness of the accident, on the fact that when he saw
the truck coming on the wrong side of the road at an excessive
speed, he not only slowed the car but also took his car on the
left side of the road which was a Kachcha road to avoid the
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mishap. To controvert the above aspect, there is no fruitful
cross-examination by the insurer of the truck and more
particularly, the driver of the truck has not been examined.
The panchnama also reflects the condition of both the
vehicles. As per panchnama, the driver side of the car from
front to rear seat was torn. The discussion on this important
evidence, in our opinion, is missing in the judgment. Looking
to the facts of the case and considering the evidence on record,
we are of the view that the driver of the Maruti fronty car was
not negligent in the occurrence of accident and it was the sole
negligence of the driver of the truck in causing the accident
and therefore, we are inclined to interfere in the finding of
negligence. We hold that the driver of the truck is the sole
negligent and the judgment and award holding driver of the
Maruti fronty car to the extent of 30% is hereby quashed and
set aside.
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8. The submission of learned advocates Mr. H. G.
Majmudar for the Insurance Company regarding double
payment of compensation under the head of loss to the car
being erroneous, has a force and in the case of National
Insurance Company Limited (supra), in paragraph Nos.3 and
6, the Apex Court has observed as under:-
"3. According to the appellant, the insurer is not liable to make the
payment since the claimant is already compensated by another
insurance company by paying Rs. 21,700 for the same cause of action
consequent to the same accident. Therefore, it was submitted that the
respondent was not entitled to double payment of compensation. The
High Court did not accept the plea and upheld the award of MACT.
6. It conceded that if there is difference of amount the appellant has to
pay the same, but that is not the case in the present scenario. The
claimant claims the whole amount. The earlier payment is not disputed.
In fact, Oriental Insurance Company Ltd. has clearly accepted that the
vehicle collided with a stage carriage on 13-7-1995 and the damage
claim was settled for Rs. 21,700 on 6-12-1995. The High Court does not
appear to have considered this aspect in the proper perspective.
Therefore, we set aside the impugned order of the High Court and remit
the matter to it for fresh consideration."
The Apex Court has observed that when in respect of
very same claim, matter is settled by another Insurance
Company and when the claimant has accepted the claim
amount from another Insurance Company, there was no scope
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for granting further relief. In the present case, the claimants
have undisputedly received an amount of Rs.1,50,000/- under
the head of damage to the car from another Insurance
Company, and there is no conflict raised by the learned
advocate for the claimant with regard to the aforesaid settled
position of law, we are of the opinion that award to the extent
of Rs.1,00,000/- under the head of damage to the car is
required to be quashed and set aside.
9. Since learned advocates for the appellant/s has fairly
conceded that claimant would not claim any further and more
compensation, except, the heads under which compensation
has been allowed by learned Tribunal, we are not delving into
the exercise of calculation of compensation on other heads.
10. Claimants of First Appeal No.4540 of 2010 are entitled
to following amount of compensation:
Particulars Amount in Rs.
Calculated Compensation Rs.7,60,000/-
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Less Awarded Compensation Rs.5,32,000/-
The difference amount of Rs.2,28,000/-
compensation
The Insurance Company shall pay an amount of
Rs.2,28,000/- to the claimant/s @ 9% per annum from the date
of filing of the claim petition till realization within a period of
four weeks from the date of receipt of the copy of this order.
11. Claimants of First Appeal No.4541 of 2010 are entitled
to following amount of compensation:
Particulars Amount in Rs.
Calculated Compensation Rs.8,49,400/-
Less Awarded Compensation Rs.5,94,580/-
Less Compensation towards damage to Rs.1,00,000/-
the Car
The difference amount of compensation Rs.1,54,820/-
The Insurance Company shall pay an amount of
Rs.1,54,820/- to the claimant/s @ 9% per annum from the date
of filing of the claim petition till realization within a period of
four weeks from the date of receipt of the copy of this order.
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12. In view of the above facts, all captioned three First
Appeals are allowed. No order as to costs. Record and
proceedings to be sent back to the concerned Court / Tribunal
concerned.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
RINKU MALI
