Gujarat High Court
Oriental Insurance Co Ltd vs Rajeshwarikumari Janaksinh Chauhan on 9 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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C/FA/962/2011 JUDGMENT DATED: 09/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 962 of 2011
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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ORIENTAL INSURANCE CO LTD
Versus
RAJESHWARIKUMARI JANAKSINH CHAUHAN & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR JM BAROT(143) for the Defendant(s) No. 1,2
RULE NOT RECD BACK for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 09/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Feeling aggrieved and dissatisfied with the
impugned common judgment and award passed by the
learned Motor Accident Claims Tribunal (Main),
Sabarkantha, at Himatnagar in Motor Accident Claim
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Petition No.875 of 2006 and other allied matters, whereby
the learned tribunal has partly allowed all four claim
petitions, whereby in Motor Accident Claim Petition
No.875 of 2006, learned Tribunal awarded compensation of
Rs.17,68,648/- but the learned Tribunal deducted an
amount of Rs.1,76,865/- by holding 10% negligence on the
part of deceased-Janaksinh Chauhan in the occurrence of
accident. Therefore, the learned Tribunal has awarded a
sum of (Rs.17,68,648-Rs.1,76,865/-) = Rs.15,91,783/- as
compensation.
2. Heard learned advocate Mr.Vibhuti Nanavati for
the appellant-original opponent No.3 and learned advocate
Mr.J.M.Barot for respondent Nos.1 and 2-original claimant
Nos.1 and 2.
3. Brief facts narrated in the present First Appeal
are as under:-
3.1 On 25.03.2006, Janaksinh Chauhan was going
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from Himatnagar to Prantij on his Motorcycle bearing
registration No.GJ-16-J-7887 with his wife Pushpaben and
minor daughters Priyanshukumari and Rajeshwarikumari as
pillion riders. At about 6.45 p.m., when they reached near
Kohinoor Motors, Sim-village Hajipur, original opponent
No.1 driver of Truck bearing registration No.RJ-14-1-G-
5110, was going ahead of them, and all of a sudden, the
said truck applied brakes without any sign and signal.
Resultantly, motorcycle rammed into the backside of the
truck resulting into serious injuries to all the four persons
riding on the motorcycle. Because of the accidental
injuries, Janaksinh Chauhan, Priyanshukumari and
Pushpaben died and Rajeshwarikumari sustained serious
bodily injuries.
3.2 Four separate claim petitions being Motor
Accident Claim Petition Nos.875, 876, 877 and 878 of
2006 were filed by the present respondent No.1 and 2
namely Rajeshwarikumari Janaksinh Chauhan and
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Ruprajkumari Janaksinh Chauhan.
3.3 The present First Appeal is arising out of Motor
Accident Claim Petition No.875 of 2006 which was filed by
respondent No.1 and respondent No.2 for a compensation
of Rs.25,00,000/- upon the death of their father Janaksinh
Chauhan. All four claim petitions were consolidated and
common evidence was recorded in MACP No.875 of 2006
and by a common judgment and award dated 25.11.2010,
learned Motor Accident Claims Tribunal (Main),
Sabarkantha at Himatnagar partly allowed all four claim
petitions by holding the truck driver negligent to the
extent of 90% and the motorcyclist-deceased Janksinh
Chauhan to the extent of 10% for the accident. The
learned Tribunal while deciding all four claim petitions
awarded an amount of compensation @ 7.5% as follows:-
Number of petitions Amount in Rs.
MACP No.875 of 2006 15,91,783/
MACP No.876 of 2006 3,33,000/-
MACP No.877 of 2006 1,54,500/-
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MACP No.878 of 2006 55,000/-
3.4 Being aggrieved and dissatisfied with the holding
of the driver of the truck negligent to the extent of 90%,
the appellant-Insurance Company is before this Court.
4 Learned advocate for the appellant-original
opponent No.3 has mainly contended that learned Tribunal
has committed an error by holding the driver of the truck
negligent to the extent of 90%. It is further submitted that
in the claim petition, claimants have stated that on the
date of accident, the driver of the truck all of a sudden
applied brakes without any sign or signal which resulted
into the motorcyclist dashing on the backside of the truck
whereas in the FIR, Chargesheet and Panchnama, the
offending truck was found stationary and the motorcyclist
rammed into the backside of the truck causing the
accident.
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4.1 When two different theories are coming on
record, learned Tribunal ought to have appreciated the
oral deposition of claimant No.1- respondent No.1 herein
which is recorded at Ex.50. The said witness has deposed
that she was sitting behind her father Janaksinh Chauhan,
and therefore, could not say whether the offending truck
was going on at high speed or not. It is further stated that
she could not see in front of the motorcycle.
4.2 It is further submitted that Panchnama at Ex.39
explains the exact position of the truck and also the
condition of the motorcycle. As per the Panchnama, the
motorcycle was damaged to a great extent and from such
evidence it can be submitted that deceased was plying
motorcycle at a very high speed. Claimants have not
pleaded any evidence with regard to the distance between
the offending truck and motorcycle at the time of
happening of the accident.
4.3 A further contention has been raised by the
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learned advocate for the appellant that the motorcycle as
per the R.C.Book which is produced at mark 21/1 indicates
that the motorcycle is of 98.2 C.C. horsepower (B.H.P.).
Undisputedly, the deceased was riding the motorcycle with
three pillion riders namely, his wife (Pushpaben) and
minor daughters (Priyanshukumari and Rajeshwarikumari).
The accident has occurred solely of negligent driving of
the deceased. It seems from the record that the deceased
had not taken proper care and caution while plying the
motorcycle. When the deceased did not keep a safe
distance from the vehicle going ahead of the motorcycle,
the driver of the offending truck could not have been
saddled with the negligence to the extent of 90%. The
accident occurred at 6.45 p.m. and in the month of
March, there is always day light and the deceased could
have spotted the truck, even if it is presumed that the
truck was a stationary truck.
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5. Per contra, learned advocate for respondent No.1
and 2-original claimants has supported the judgment and
award and submitted that the offending truck has
remained negligent in applying brakes without any sign or
signal which has resulted into the unfortunate accident and
three persons have lost their lives. It is submitted that as
per the Panchnama at Ex.39, the truck was stationed 3
feet away from the divider of the road. It is further
submitted that the Investigating Officer, who has been
examined at Ex.73 has admitted in his cross-examination
that the truck was stationed when the accident took place.
It is further contended that the occurrence of the accident
which has been stated in the claim petition is the correct
narration and the truck was not in a stationary position
when the accident took place.
5.1 It is further contended that when from the oral
deposition of respondent No.1 and from other documentary
evidence, the learned Tribunal has found the offending
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truck negligent to the extent of 90%, this Court may not
interfere in the assessment of negligence and the judgment
and award may not be disturbed. Except these
submissions, no other submissions are made by the learned
advocate for the claimants.
6. We have considered the rival submissions and
also perused the record and proceedings. Undisputedly, on
the date of accident, deceased was riding the motorcycle
with three pillion riders and dashed into the backside of
the truck which resulted into the death of Janaksinh
Chauhan, Priyanshukumari and Pushpaben and respondent
No.1 Rajeshwarikumari sustained injuries. There are two
theories of happening of the accident which are coming
out from record. The first theory, the narration given by
the claimants in the claim petition is that, the offending
truck was going ahead of the motorcycle, all of a sudden
without any sign or signal offending truck applied brakes
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and therefore, the motorcycle rammed into the backside of
the truck. The second theory, which has been considered
by the learned Tribunal is by relying upon the Panchnama
and the oral deposition of Investigating Officer. As per the
Panchnama, Chargesheet and oral deposition of the
Investigating Officer, the offending truck was in a
stationary condition and the motorcycle dashed the truck
from behind. Undisputedly, there is no eye witness to the
accident. The only witness who can be said to have seen
the actual happening of the accident is claimant No.1-
Rajeshwarikumari. However, the said witness has remained
silent in her deposition with regard to the distance
between two vehicles and the speed of the motorcycle.
What is gathered from her evidence is that the truck was
in motion and all of a sudden, driver of the truck applied
brakes without any sign or signal which caused the
accident. So, the second theory, that truck was in a
stationary condition is ruled out for the reason that neither
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the Investigating Officer was present nor any eye witness
is found at the spot when the accident took place.
Panchnama can only be used as evidence for the limited
purpose of ascertaining the position of the vehicles,
condition of vehicles after the impact and for ascertaining
the location and the width of the road where the accident
took place. The contents of the Panchnama, in the present
case is not helpful in arriving at the conclusion that the
offending truck abruptly applied brakes without any sign
or signal. Our view is fortified by perusing the
Panchnama. The Panchnama of the site of the accident
does not disclose any brakemarks of the truck on the road.
Even if the theory of the claimant is believed that the
offending truck applied brakes, the brakemarks would be
found on the road. Thus, the story tried to be developed
by the claimants that the offending truck suddenly applied
brakes without any sign or signal is not established.
6.1 Panchnama at Ex.39 is the only document
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which can be considered for finding the exact position of
the two vehicles and condition of vehicles after the
impact. Panchnama depicts the situation of the place of
accident. As per panchnama, the width of the road is 30
feet in East-West direction. The truck is found facing
southern direction and left backside of the truck is found
damaged. Angle of the rear side of the truck is found
damaged and separated from welding. The motorcycle is
found under the left backside wheel of the truck. The
distance between the left side of the truck and the
drainage line on the eastern side of the road is 3 feet.
The width of the drainage line is 3 feet. There exits a
service road after the drainage line on the eastern side of
the road. Whereas on the western side of the truck, the
distance between the truck and divider is 3 feet. This
leaves 24 feet road open wherein the truck is found. As
can be seen from the Panchnama, the motorcyclist dashed
on left backside of the truck. Claimant No.1-
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Rajeshwarikumari has conveniently avoided reply to the
question put to her with regard to the happening of the
accident. She has conveniently replied that as she was
sitting behind her father, she could not see the front side
of the motorcycle.
6.2 From the Panchnama and from the replies given
by the claimants regarding the manner in which the
accident took place, we are of the view that the
motorcyclist might have tried to overtake truck from left
side, which is not permissible under the Traffic Rules and
dashed with the rear left of the truck. Moreover, there
were three pillion riders on the motorcycle with the
deceased which could have led the deceased in off
balancing the motorcycle. The fact that deceased was
plying motorcycle with 3 pillion riders itself speaks that
the deceased has committed breach of the Rules. The
R.C.Book which is placed on record clearly says that the
type of body is 'solo with pillion'. There is every
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possibility that the deceased while overtaking the truck
from left side rammed into the truck which caused death
of three persons and one sustained injuries.
6.3 It would be profitable to refer Section 128 of
the Motor Vehicles Act, 1988:-
"128. Safety measures for drivers and pillion
riders:-(1) No driver of a two-wheeled motor cycle
shall carry more than one person in addition to
himself on the motor cycle and no such person
shall be carried otherwise than sitting on a proper
seat securely fixed to the motor cycle behind the
driver's seat with appropriate safety measures.
6.4 The said provision mandates that no driver of
two wheeled motorcycle shall carry more than one person
in addition to himself on the motorcycle. The said
provision prescribes certain safety measures for drivers and
pillion rider of motor vehicles. When the provision
prohibits the rider of motorbike for taking more than one
pillion rider, breach of such safety measures amounts to
negligence.
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6.5 Regulation 23 of Rules of the Road Regulations,
1989 would be apt to be referred in the facts of the
present case.
"23 Distance from vehicles in front: The driver of a
motor vehicle moving behind another vehicle shall
keep at a sufficient distance from that other vehicle
to avoid collision if the vehicle in front should
suddenly slow down or stop."
6.6 In the words of the Hon'ble Apex Court in the
case of Nishan Singh & Ors. Vs. Oriental Insurance Company
Ltd. through Regional Manager & Ors. reported in 2018
LawSuit (SC) 424 decided on 27.04.2018, the thumb rule of
the sufficient distances is at least a safe distance of two to
three seconds gap in ideal condition to avert collision and
to allow the following driver to time to respond. In the
present case, claimants have for the reasons best known to
them conveniently not specified the distance between the
truck and motorcycle just before the impact. The blame
must rest on the motorcyclist for having driven the
motorcycle rashly and negligently.
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6.7 Another aspect which justifies our assumption is
that it is neither the case of the claimants nor has come
on record the reason for the truck driver to apply sudden
brakes. From the assessment of the evidence, we are of
the view that both the vehicles are equally negligent in
the occurrence of the accident. Therefore, the fastening of
the liability on the truck to the extent of 90% is modified
and is reduced to 50%, whereas, the negligence of the
motorcyclist i.e. deceased is increased upto 50% from 10%.
7. Accordingly, the First Appeal is partly allowed.
Therefore, claimants of MACP No.875 of 2006 are entitled
to recover (Rs.17,68,648-Rs.8,84,324/-) = Rs.8,84,324/- as
compensation instead of Rs.15,91,783/- from original
opponent Nos.1 to 3 jointly and severally with simple
interest @ 7.5% per annum from the date of petition till
realization. The rest of award passed in MACP No.875 of
2006 is unaltered.
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The appellant-insurance Company may claim
refund of the excess amount of compensation which has
been deposited before the learned Tribunal and learned
Tribunal shall refund such excess amount of compensation
to Insurance Company. If the deposited amount has been
withdrawn by the claimants, opponent No.3-Insurance
Company, may recover the same from the claimants by
following due process of law. No order as to costs. Record
and proceedings, be sent back to the concerned
Court/Tribunal.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
MANOJ
