Gujarat High Court
National Insurance Company vs Maniben Wd/O. Mohanbhai Shivrambhai ... on 12 February, 2025
NEUTRAL CITATION
C/FA/4516/2007 ORDER DATED: 12/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4516 of 2007
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NATIONAL INSURANCE COMPANY
Versus
MANIBEN WD/O. MOHANBHAI SHIVRAMBHAI PATEL & ORS.
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR SHAKEEL A QURESHI(1077) for the Defendant(s) No. 1,2,3
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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 22.12.2004 passed by the Motor Accident
Claims Tribunal, Navsari in Motor Accident Claim Petition
No.265 of 1994.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
17.12.1993, Dr.Mohanbhai and his wife Maniben and one
Jivanbhai were travelling by Maruti Car No.GJ-5-A-6274
towards Valsad and when they reached near the place of
accident, opponent No.1 came from opposite directing by riding
truck No.GTO-3096 in rash and negligent manner and dashed
with the car. As a result, the accident took place and deceased
Mohanbhai sustained severe injuries and succumbed to the
NEUTRAL CITATION
C/FA/4516/2007 ORDER DATED: 12/02/2025
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injuries. 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 22.12.2004 has
granted compensation to the tune of Rs.4,53,200/-. Hence, the
present appeal.
3. Heard learned advocates for the respective parties.
4. The claim petition No.265 of 1994 has been filed by the
heirs and legal representatives of deceased Mohanbhai patel who
was riding the Maruti car at the time of road accident and
dashed with the oncoming truck which resulted into death of the
deceased Mohanbhai and injuries to other occupants. In the
claim petition the driver, owner and insurer of the truck are
joined as opponent Nos.1 to 3. Dr.Mohanbhai Patel and his wife
are arrayed as respondent Nos.4 and 5. Learned tribunal
assessed the compensation and partly allowed the claim petition
in tune of granting Rs.4,53,200/- with 10% interest from the
date of petition till realization in favour of the claimants. In the
background of above aspects, let me refer to facts of the case on
hand. On ill-fated day i.e. on 17.12.1993, Dr.Mohanbhai and his
wife Maniben and one Jivanbhai were travelling by Maruti Car
No.GJ-5-A-6274 towards Valsad and when they reached near the
place of accident, opponent No.1 came from opposite directing by
riding truck No.GTO-3096 in rash and negligent manner and
dashed with the car. As a result, the accident took place and
deceased Mohanbhai sustained severe injuries and succumbed
to the injuries.
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C/FA/4516/2007 ORDER DATED: 12/02/2025
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5. Learned Tribunal in the claim petition has framed the
following issues :
"(1) Whether the applicant proves that opponent No.1
was rash and negligent in driving motor vehicle bearing
No.GTO-3096>
(2) Whether the applicants prove that she sustained
injury because of rash and negligent act of opponent
no.1?
(3) Whether the applicant is entitled to compensation of
Rs.1,00,000/-? If not,
(4) What amount of compensation the applicants are
entitled to?
(5) Who is liable to pay and to what extent?
(6) What order and award?"
6. While assessing the issue of contributory negligence,
learned Tribunal in para 19 returned the following findings :
"19. According to the case of applicants, they were
travelling in Maruti Car No.GJ-5-A-6274 on 17.12.1993
and going to Valsad from Navsari. Truck No.GTO-3096
coming from Valsad and gong towards Chikhli dashed
with Maruti car. The Maruti Car, therefore, turned in
reverse condition. The complaint lodged by third party.
The FIR produced at Exh.56 and panchnama produced
at Exh.57. Considering the situation of vehicles shown in
panchnama, it appears that the truck No.GTO-3096
dashed with Maruti car No.GJ-5-A-6274 and in result
thereof car turned in reverse position. At that time, one
truck No.PB-11-D-1925 coming from opposite side on its
right side but because of accident, the driver of Maruti
Car lost his control over the car and while turning in
reverse condition, some part of the car dashed at the
driver side of truck No.PB-11-D-1925. Becuase of the
collision, the truck no.PB-11-D-1925 damage but not
involved in the occurrence of the accident. One applicant
who was travelling in the Maruti Car is examined and
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C/FA/4516/2007 ORDER DATED: 12/02/2025
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his deposition is recorded at Exh.52. He is the eye
witness of the accident and in his cross-examination, he
has admitted that Dr.Mohanbhai was driving the car in
speed and because of his negligence, accident was
occurred. One another eye witness, the applicant of
Claim Petition No.265/1994 who is the wife of deceased
Mohanbhai also examined and her deposition recorded
at Exh.51. In her cross-examination, she has stated that
she was on rear seat, road at site is parallel road and I
saw truck from distance of 200 ft. At that time, the truck
was in right side and there was no other vehicle, the
truck came on wrong side and dashed with Maruti.
Considering the panchnama and oral evidence of eye
witness, it appears that both the drivers are equally
negligent for occurrence of accident. Hence, contributory
negligence of opponent No.1 comes to 50% and 50% of
deceased Mohanbhai Shivrambhai Patel, driver of Maruti
Car No.GJ-5-A-6274. I answer the issue No.1
accordingly."
7. It emerges from the finding of the learned Tribunal that
Maruti car driver and truck driver are held equally negligent in
causing the road accident and deceased Mohanbhai was held
50% negligent in causing the road accident. Subsequent thereto,
in the impugned judgment and award learned Tribunal assessed
compensation of Rs.4,53,000/- in favour of the legal heirs of
deceased. However, learned Tribunal while passing the
impugned judgment and award failed to deduct the amount
equal to the self negligence of the deceased Mohanbhai from the
total amount of compensation worked out. The error on the part
of the learned Tribunal is crystal clear.
8. In view of above, the present appeal filed by the Insurance
Company is allowed in the aforesaid terms. The claimants shall
be entitled to compensation of Rs.2,26,600/- (Rs.4,53,200/-
minus Rs.2,26,600/- being 50% self negligence of deceased is
deducted) with 10% interest from the date of petition till
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C/FA/4516/2007 ORDER DATED: 12/02/2025
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realization jointly and severally from the opponent Nos.1 to 3 of
the claim petition.
8.1 The Tribunal shall disburse the aforesaid awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest
thereon, if any, to the claimants, by account payee cheque /
NEFT / RTGS, after proper verification and after following due
procedure.
8.2 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.3 In view of above, learned Tribunal is directed to refund
Rs.2,26,600/- along with 10% interest from date of petition till
amount is deposited before the learned Tribunal and further the
accrued interest of FDR on the said amount to the National
Insurance Company Limited. Remaining amount, if any, lying in
the FDR shall be disbursed to the claimants and if required after
passing the order of apportionment. It is made clear that no
amount shall be recovered from the claimants if excess amount
is paid to the claimants.
8.4 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
