Gujarat High Court
United India Insurance Company Ltd vs Balwinder Singh S/O Swarna Singh on 12 February, 2025
NEUTRAL CITATION
C/FA/324/2019 ORDER DATED: 12/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 324 of 2019
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UNITED INDIA INSURANCE COMPANY LTD
Versus
BALWINDER SINGH S/O SWARNA SINGH & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/
REPRESTENTATIVES for the Defendant(s) No. 2
NOTICE SERVED BY DS for the Defendant(s) No. 3,4,5,6,7,8
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - Insurance
Company being aggrieved and dissatisfied with the judgment
and award dated 06.09.2018 passed by the Motor Accident
Claims Tribunal, Gandhinagar in Motor Accident Claim Petition
No.1578 of 2004.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
24.07.2002, deceased was driving truck owned by opponent No.3
bearing No.GJ-2-X-323 and when he reached near the place of
accident, one truck Trailor No.HR-38-G-2499 came from
opposite side and suddenly cabin of truck trailor was separated
and deceased driver moved his truck on right side. There was
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head on collision between two vehicles. As a result, the accident
took place and deceased sustained severe injuries and
succumbed to the injuries. Therefore, offence to that effect is
registered before the Vasad Police Station vide FIR being
I-C.R.No.134 of 2002. The legal heirs of the deceased have filed
aforestated claim petition under Section 166 of the Motor Vehicle
Act, 1988 claiming compensation of Rs.10,00,000/-. The learned
Tribunal vide impugned judgment and award dated 06.09.2018
has granted compensation to the tune of Rs.7,00,000/-. Hence,
the present appeal.
3. Learned advocate Mr.Vibhuti Nanavati mainly assails the
impugned judgment and award and finding of learned Tribunal
on the ground of attribution of 50% negligency to the driver of
truck-trailor. Learned advocate submits that FIR was given by
some third party. From the FIR it indicates that it is head on
collision between the truck and truck-trailor and due to that
cabin part of the truck-trailor got detached and went on the road
to collide with Maruti van. So looking to the scenario of accident
emerging from the evidence on record more particularly from the
FIR, the finding of the learned Tribunal to attribute 50%
negligency to the driver of trailor is incorrect finding. In view of
above submissions, he would submit to allow this appeal and
urges to attribute 100% negeligency upon deceased to caused
road accident.
4. The claimants are served but they did not choose to appear
to contest the appeal.
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5. The case of the claimants is that accident took place at
night hours. The deceased was driving the truck and when the
cabin part of the trailor got detached from the trailor, the
deceased took his truck on right side. However, said pleadings
are not corroborated with the evidence produced on record. The
claimants have manured the pleadings of the case. It is a case of
head on collusion between drivers of two vehicles. The FIR is
given by one ..He was rider of the Maruti van who was passing
nearby the spot of accident. According to him, the accident took
place due to negligence of the deceased. However, the fact cannot
be ruled out that it is a head on collision between two vehicles
having equal nature. It is argued by learned advocate
Mr.Nanavati that had deceased taken due care and ridden his
vehicle on the correct side, the accident could have been
avoided. Not taking extra precaution or care is not a negligence.
The term negligence has been explained by the Hon'ble Supreme
Court in case of T. O. Anthony vs Karvarnan and Others -
2008 (3) SCC 748, as under :
"6. 'Composite negligence' refers to the negligence on the
part of two or more persons. Where a person is injured as
a result of negligence on the part of two or more wrong
doers, it is said that the person was injured on account of
the composite negligence of those wrong-doers. In such a
case, each wrong doer, is jointly and severally liable to
the injured for payment of the entire damages and the
injured person has the choice of proceeding against all or
any of them. In such a case, the injured need not
establish the extent of responsibility of each wrong-doer
separately, nor is it necessary for the court to determine
the extent of liability of each wrong-doer separately. On
the other hand where a person suffers injury, partly due
to the negligence on the part of another person or
persons, and partly as a result of his own negligence,
then the negligence of the part of the injured which
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contributed to the accident is referred to as his
contributory negligence. Where the injured is guilty of
some negligence, his claim for damages is not defeated
merely by reason of the negligence on his part but the
damages recoverable by him in respect of the injuries
stands reduced in proportion to his contributory
negligence."
6. At this juncture, I may refer to the finding of learned
Tribunal earmarking 50% negeligence on drivers of both vehicles.
Para 7, 8 and 8.1 are reproduced as under :
"7) From the complaint, it appears that the
complaint is given by third party, who was passing
through Hon'ble High Court and the accident
has taken place at about 02:00 a.m. From the
panchnama it appears there is headon collision between
two vehicles. Neither the applicants nor the
complainant are eye witness to the incident.
8) After considering rival submissions and on perusal
of the record, it appears that there is headon
collision between the two vehicles. There is no
evidence on record to show that the cabin was
separated before accident, as pleaded in petition. I
find substance in the submission of the learned
advocate for the insurance company that the cabin
may be separated after accident. Further, this court
is also guided by the judgement of division bench of
our own Hon'ble High Court reported in JT 2006 (3)
SC 94 in the case of Bijoy Kumar Dugar Vs. Bidyadhar
Dutta, wherein it is held that:
An accident at a place near Kharjan Pol. Before
the accident, Raj Kumar Dugar noticed a
passenger bus coming from the opposite direction
and the movement of the bus was not normal as it
was coming in a zigzag manner. The Maruti car being
driven by the deceased Raj Kumar Dugar and
the offending bus had a head on collision. The
MACT has not accepted the evidence of P.W. 2 to
prove that the driver of the offending bus was
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driving the vehicle in abnorma speed. If the bus
was being driven by the driver abnormally in a
zigzag manner, as P.W. 2 wanted to believe
the Court, it was, but natural, as a prudent man
for the deceased to have taken due care and
precaution to avoid headon collision when he had
already seen the bus from a long distance coming
from the opposite direction. It was headon
collision in which both the vehicles were damaged and
unfortunately, Raj Kumar Dugar died on the spot. The
MACT, in our view, has rightly observed that had it
been the knocking on one side of the car, the
negligence or rashness could have been wholly
fastened or attributable to the driver of the bus,
but when the vehicles had a headon collision,
the drivers of both the vehicles should be held
responsible to have contributed equally to the
accident. The finding on this issue is a finding of fact
and we do not find any cogent and convincing
reason to disagree with the wellreasoned order
of the MACT on this point.
8.1) In the case on hand, it appears that there is head-
on collision between the vehicles. From the
panchnama, it is clear that both the drivers could
have seen the vehicles of each other from a reasonable
distance and there is nothing on record that the victim
had taken any step to avoid the accident. There
is no evidence to show that how the accident occurred.
So, the said judgement would be clearly
applicable to the facts of the present case.
Therefore, applying the said ratio to the facts of the
present case, I am of the view that this is a case of
contributory negligence, and negligence of both the
drivers to the accident is held 50%. Hence, issue No. 1 is
decided partly in affirmative."
7. Considering the overall fact situation, I am of the opinion
that learned Tribunal has not committed any error in fastening
50% liability upon the deceased as well as driver of the trailor. I
see no reason to interfere with the finding being well reasoned on
the facts of the coupled with evidence on record. Apt to note that
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driver of trailor did not enter into witness box nor he has
contested the claim petition by filing written statement. The
Insurance Company did nothing to secure deposition of driver of
the trailor. The FIR which is heavily relied upon by the learned
advocate for the Insurance Company is filed by third party. It is a
fit case of draw adverse inference as held by Hon'ble Supreme
Court in case of Mangla Ram v. Oriental Insurance Co. Ltd.
and Ors. - 2018 (5) SCC 656, wherein it is held as under :
"27. Another reason which weighed with the High Court
to interfere in the first appeal filed by Respondents 2 &
3, was absence of finding by the Tribunal about the
factum of negligence of the driver of the subject jeep.
Factually, this view is untenable. Our understanding of
the analysis done by the Tribunal is to hold that Jeep
No. RST 4701 was driven rashly and negligently by
Respondent 2 when it collided with the motorcycle of the
appellant leading to the accident.
This can be discerned from the evidence of witnesses
and the contents of the charge-sheet filed by the police,
naming Respondent 2. This Court in a recent decision in
Dulcina Fernandes [Dulcina Fernandes v. Joaquim
Xavier Cruz, (2013) 10 SCC 646, noted that the key of
negligence on the part of the driver of the offending
vehicle as set up by the claimants was required to be
decided by the Tribunal on the touchstone of
preponderance of probability and certainly not by
standard of proof beyond reasonable doubt.
Suffice it to observe that the exposition in the judgments
already adverted to by us, filing of charge-sheet against
Respondent 2 prima facie points towards his complicity
in driving the vehicle negligently and rashly. Further,
even when the accused were to be acquitted in the
criminal case, this Court opined that the same may be of
no effect on the assessment of the liability required in
respect of motor accident cases by the Tribunal".
(Emphasis Supplied)
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8. In view of above finding , I see no reason to interfere with
the impugned judgment and award. The present appeal sans
merit and it is, accordingly, dismissed. The impugned judgment
and award is upheld. Registry is directed to send back the record
and proceedings to the concerned Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
