Gujarat High Court
National Insurance Co Ltd vs Mahendrabhai Shankarlal Gandhi on 3 January, 2025
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C/FA/1901/2012 ORDER DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1901 of 2012
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NATIONAL INSURANCE CO LTD
Versus
MAHENDRABHAI SHANKARLAL GANDHI & ORS.
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Appearance:
MR HAMESH C NAIDU(5335) for the Appellant(s) No. 1
MS DIMPLE A THAKER(6838) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 1,4
SERVED BY AFFIX. (R) for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/01/2025
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 20.01.2012 passed by the Motor Accident
Claims Tribunal, Nadiad in Motor Accident Claim Petition
No.1809 of 2008.
2. Heard learned advocate Mr.Naidu for the appellant -
Insurance Company.
3. Learned advocate Mr.Naidu for Insurance Company has
raised solitary contention that learned Tribunal erred in not
considering contributory negligence of the claimant who was at
the relevant time driving Eicher Tempo. Taking this Court
through FIR and Panchanama and charge-sheet produced on
record at Exh.46,47 and 52 respectively, it is submitted that
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accident took place on head on collusion matter between truck
and Eicher tempo, but the learned Tribunal did not consider
Eisher driver negligent in causing road accident and therefore, it
is submitted that impugned judgment is bad in law and suffers
from vices. It is submitted to allow the appeal and assess
contributory negligence of claimant.
4. Learned advocate Mr.Dwivedi submits that he has
instructions to appear for the respondent no.5 and who has
already filed Vakalatnama. Learned advocate Mr.Dwivedi after
referring to judgment of Hon'ble Apex Court in the case of Jiju
Kuruvila v/s. Kunjujamma Mohan [(2013) 9 SCC 166] would
argue that in the present case, truck driver neither contested
claim petition nor entered into witness box to disclose real facts
of road accident and therefore, it is fit case to drawing adverse
inference against him. Expanding his argument, it is submitted
that Panchnama would disclose and demonstrate that truck
driver came on wrong side and dashed either tempo. Brake
marks are also visible which indicates that Eicher driver has
taken sufficient care to avoid accident.
4.1. In view of above submissions, it is submitted to dismiss the
appeal.
5. Having heard learned advocates for parties and considering
evidence on record, it is noticeable that FIR of road accident for
the offence under section 279 of MV Act along with other offence
is lodged against truck driver. The claimant is Eicher driver. He
entered into witness box at Exh.37 and he not only made
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assertion against driver of truck in the pleading for causing road
accident but also made assertion on oath against truck driver.
Perusing cross examination, it indicates that no fruitful has been
culled out during cross examination. Perusing cross examination
made by opponent no.5 of claim petition, suggestion was made
that Eicher was on correct side and truck came on wrong side
and dashed eicher, said suggestion is accepted and admitted.
Perusal of panchnama drawn post accident at Exh.47 also
indicates that truck was on wrong side, charge-sheet is also filed
against driver of truck. To counter this evidence on record, truck
driver did not enter into witness box. Even he has not contested
claim petition by filing written statement. In case of Vimla Devi
v/s. National Insurance Company Ltd. [2019 (2) SCC 186], the
Hon'ble Apex Court held that if driver who is best piece of
evidence did not enter into witness box, adverse inference is
required to be drawn against him. Relevant para 30 reads as
under :-
"30. Fourth, so far as the driver and owner of the Truck
were concerned, both remained ex parte since inception
and, therefore, neither contested the appellants' claim
petition nor entered into the witness box to rebut the
allegations of the appellants made in the claim petition and
the evidence. An adverse inference against both could be
drawn."
6. In view of above finding, learned Tribunal has discussed
the issue while deciding issue no.1 in affirmative (see para 9of
the impugned judgment). According to this Court, learned
Tribunal has taken no wrong view. The appeal is bereft of merits
and deserves to be dismissed and accordingly, it is dismissed.
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7. The Tribunal shall disburse the entire awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest
thereon, if any, to the claimant, by account payee cheque /
NEFT / RTGS, after proper verification and after following due
procedure.
8. While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law. Record
and proceedings be sent back to the concerned Tribunal,
forthwith.
(J. C. DOSHI,J)
SATISH
