Gujarat High Court
New India Assurance Company vs Ashaben Ibrahimbhai Vora on 3 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/71/2015 JUDGMENT DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 71 of 2015
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
No
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NEW INDIA ASSURANCE COMPANY
Versus
ASHABEN IBRAHIMBHAI VORA & ORS.
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Defendant(s) No. 3
MR R.K.MANSURI(3205) for the Defendant(s) No. 1
UNSERVED EXPIRED (N) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
[1] Feeling aggrieved and dissatisfied with the
impugned judgment and award passed by the learned
Motor Accident Claims Tribunal, Modasa, Dist.-Sabarkantha
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in Motor Accident Claim Petition No.1454/2013 (Old MACP
No.04/2010) by which the learned Tribunal has partly
allowed the claim petition and has awarded a total sum of
Rs.14,70,000/-, out of which, the 50% from the
compensation for negligence on the part of deceased were
deducted and Rs.7,35,000/- has been awarded towards
compensation with interest @ 9% in favour of claimant.
Appellant-original opponent No.3 has preferred the present
appeal.
[2] We have heard Mr.G.C.Mazmudar, learned
Advocate appearing on behalf of the appellant - original
opponent No.3 and Mr.R.K.Mansuri, learned Advocate for
respondent No.1 - original claimant. Though notice has
been served, none appeared for respondent No.3.
2.1 We have considered and perused the impugned
judgment and award passed by the learned Tribunal. We
have also considered the entire evidence on record.
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[3] Brief facts narrated in the present case are as
under:-
3.1 On 13/10/2002, the deceased, Firoz, along with
his wife and daughter, was traveling using his friend's
Maruti Esteem car bearing registration number GJ-05-N-
3270. While driving through Valan village a tempo bearing
registration No.GJ-6-Y-5127 came in full speed from
opposite direction and dashed on the front side of the Car.
As a result of dashing of the car, tyre was burst and car
was dragged towards divider side with the tempo. As a
result, the deceased, Firoz suffered a head injury and died
on the spot, while his wife and daughter sustained severe
injuries.
3.2 Thereafter, the mother of deceased Firoz filed an
application u/s 166 of Motor Vehicle Act, 1988 before the
learned Motor Accident Claim Tribunal, at Modasa for
compensation of Rs.44,00,000/-. The learned Tribunal
partly allowed the application of claimant and awarded
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Rs.14,70,000/- to the claimant, but the learned tribunal
deducted 50% from compensation for negligence on the
part of deceased and ordered opponent Nos.1 to 3 jointly
and severally to pay Rs.7,35,000/- to the claimant with
interest of 9% vide award dated 10/02/2014. Being
aggrieved and dissatisfied with the said award, the
appellant- Insurance Company is before this Court.
[4] At the outset it is required to be noted that the
deceased Firozbhai Vohra was aged 33 years at the time of
accident. That the learned Tribunal awarded future loss of
income/loss of dependency by assessing/considering the
income of the deceased at Rs.7,500/- per month. The
learned Tribunal considered 50% addition as prospective
income i.e. 11,250=00 p.m. Deducting 1/3rd towards
personal expenses of the deceased, the learned Tribunal
considered the dependency at Rs.7,500/- per month and
applying the multiplier of 16, awarded Rs.14,40,000/-
towards future loss of income. The learned Tribunal also
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awarded Rs.10,000/- loss of estate and Rs.10,000/- towards
transportation and funeral and Rs.10,000/- for loss of love
and affection expenses. Thus, the learned Tribunal awarded
a sum of Rs.14,70,000/- but the learned Tribunal deducted
50% from compensation for negligence on the part of
deceased and has awarded a sum of Rs.7,35,000/- as
compensation with 9% interest thereon from the date of
filing of claim petition till realization.
[5] Mr.Majmudar, learned Advocate appearing on
behalf of the appellant submitted that learned Tribunal has
awarded compensation without considering the merits of
the case and without properly appreciating the evidence on
record. It is further submitted that learned Tribunal has
committed gross error by holding 50% negligence of tempo
driver, despite clear averments in the FIR and Panchnama
regarding deceased's own negligence. It is further
contended that the FIR was registered by another Truck
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Driver, who was following the Maruti Esteem Car and the
said driver stated that the driver of Maruti Car was in full
speed and overtook his truck and just at a distance of 150
feet, the tyre of car burst and Maruti Car jumped the
divider above 15 feet and went on the wrong side and
dashed with Tempo. It is further contended that in the
occurrence of the alleged accident, Tempo driver was not
negligent as he was on the correct side of the road and as
per the Panchnama, an attempt was made by the Tempo
driver to avoid the accident by applying brake. However,
this vital evidence has not been considered by the learned
Tribunal.
5.1 Learned advocate for the appellant has submitted
that opponent No.1-claimant has withdrawn the First
Appeal No.284 of 2016 that was filed for enhancement of
compensation and hence, the appellant has restricted his
challenge in the present appeal on the ground of
percentage of negligence fastened upon the driver of the
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Tempo.
[6] Countering the submissions, learned advocate
Mr.Mansuri for respondent No.1-original claimant
submitted that the negligence which has been fastened
upon the driver of Tempo is pursuant to the evidence on
record. It is submitted that on bare perusal of the FIR and
Panchnama, it cannot be assumed that the Tempo driver
was not negligent and the fastening of 50% negligence on
the driver of the Tempo is against the evidence. It is
submitted that the driver of the Truck, who had registered
FIR, has not been examined by the Insurance Company. It
is further submitted that the First Appeal bearing No.284
of 2016 filed by the claimant for enhancement of
compensation has been withdrawn by the appellant
accepting compensation awarded by the learned Tribunal.
[7] Considering the facts and circumstances of the
case and settled principles of law, we find that the learned
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Tribunal has fairly considered the materials available on
record and has awarded just and fair compensation. As far
as the question with regard to the negligence is concerned,
the FIR and Panchnama indicate that the deceased was
driving Maruti Esteem Car with excessive speed and even
looking at the Panchnama, it is borne out that the
condition of the tyres of the car was old and remoulded.
The cause of the accident is the bursting of tyre, thereby
the car jumped the divider and went on the other side of
the divider and thereby dashed with the Tempo which was
coming from its right direction. The applicant in the claim
petition has made a wrong statement with regard to the
occurrence of accident. It is alleged in the application that
the Tempo came near the divider and dashed with the
Maruti Car and because of the impact of the Tempo, tyre
of Maruti Car burst. There is no contrary evidence led by
the claimant against the occurrence of the accident which
is mentioned in the FIR. The Car driver was driving in a
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rash and negligent manner which resulted into bursting of
the tyre which is not the fault of the Tempo driver. We
are of the opinion after considering the evidence on record
and considering the reasons assigned by the learned
Tribunal that the learned Tribunal has rightly assessed the
percentage of negligence in the occurrence of the accident.
Even the appellant could not point out any contrary
evidence to substantiate his contention that driver of the
Tempo was not negligent in either avoiding the accident or
in causing the accident.
8. Thus, present First Appeal has no merit and
deserves to be dismissed. Accordingly, First Appeal is
dismissed. No order as to costs. Record and proceedings, if
received, be sent back to the concerned Court.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
MANOJ
