Gujarat High Court
Oriental Insurance Co Ltd vs Girishbhai Kantilal Shah on 13 January, 2025
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C/FA/2519/2014 ORDER DATED: 13/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2519 of 2014
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ORIENTAL INSURANCE CO LTD
Versus
GIRISHBHAI KANTILAL SHAH & ORS.
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 2,3
MR KV GADHIA(319) for the Defendant(s) No. 6,9
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 4,5,8
RULE UNSERVED for the Defendant(s) No. 7
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/01/2025
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 31.03.2014 passed by the Motor Accident
Claims Tribunal, Ahmedabad in Motor Accident Claim Petition
No.345 of 2002.
2. Brief facts of the case are as under:
2.1 On 19.12.2001, applicant's wife was coming in bus No.UP-
65-R-1060 from Bhagalpur to Kolkatta and the said bus dashed
with Truck as well as Tata Sumo No.GJ-1-BK-1756 and Bus
No.UP-65-H-8615. Parulben, wife of applicant sustained serious
injuries and died on the spot. Therefore, claimants have filed
claim petition.
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3. Learned advocate Mr.Dwivedi for the appellant - Insurance
Company would submit that driver of ST Bus No. UP-65-R-1060
was not fully negligent in causing road accident. Explaining fact
and nature of road accident, he would submit that at the
relevant time, deceased was traveling in ST Bus No.UP-65-R-
1060 from Bhagalpur to Kalokatta. When the said bus reached
near Saras crossing, GT road near Galsy Bardwan, ST bus was
dashed from behind by Bus No.UP-65-R-8615 as well as Tata
Sumo. He would submit that this fact is coming from FIR as well
from pleading and deposition of claimant. However, learned
Tribunal wrongly believed that at the relevant time driver of ST
Bus No.UP-65-R-1060 jumped from ST bus on fear of accident
and as he saw one truck on coming, is incorrect version. He
would submit that learned Tribunal wrongly relied on this
incorrect version of fact and fasten 100% liability on ST driver.
He submitted that police record i.e. FIR is on different aspect but
learned Tribunal did not consider it in proper prospective.
Learned advocate for the appellant does not pres other grounds
which are mentioned in the appeal memo.
3.1 On above submissions, it is submitted to allow this appeal.
4. Learned advocate Mr.Modi for the respondent no.1
supported impugned judgment. Further, he submits that issue
of negligence of driver of offending vehicle is issue of composite
negligence for him. He submitted to pass necessary order.
5. Learned advocate Mr. Gadhia for respondent nos.6 and 9
supports impugned judgment and further submitted that
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learned Tribunal has rightly assessed issue of negligence
referring to various evidence on record. He would submit that
even from cross examination done by learned advocate for the
appellant - Oriental Insurance Company Ltd., it is established
that driver of ST bus in fear of road accident which could took
place due to on coming truck jumped from ST bus, resulting into
road accident. It is submitted that dashing of luxury bus and
Tata sumo from behind is on the reason that ST bus has dashed
with on coming truck. He referred to inquest panchnama to
substantiate his submissions. He submitted to dismiss the
appeal.
6. I have heard learned advocates for the parties extensively. I
have gone through Record and Proceedings of claim petition and
re-appreciated evidence on record.
7. Learned Tribunal upon pleading of parties framed issue at
Exh.70. Issue no.1 is pertaining to decide that which vehicle
driver was negligent in causing road accident. Issue no.1 reads
as under :-
"(1) Whether the petitioner proves that the death of the
deceased was caused due to rash and negligent driving of
drivers of the vehicles involved in the accident ?."
8. The finding of learned Tribunal in regard to issue no.1, is
in para 15, which reads as under :-
"15. The applicant in his deposition Exh. 76, has narrated
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the occurrence. He has stated that, deceased Parulben wife
of the applicant was traveling an passenger in bus bearing
registration No. UP-65-R- 1060 from Bhagalpur to
Kolkatta. The driver of the said bus was driving the bus
rashly and negligently with full speed. When the bus was
passing through Saras crossing, GT road near Galsy
Bardwan, he lost the control of the bus and dashed with
another bus and a truck. At that time, the driver of the
said bus jumped off the bus. At that time another bus
bearing registration No. UP-65-R-8615) coming from
behind dashed with the said bus and TATA-Sumo bearing
registration No. UP-65-R-8615 also dashed with the said
bus from behind. The accident was reported with Galsy
Police station by I-CR No. 190/2001. The applicant is cross
examined by opponent no. 6 and 9, The New India
Assurance Company. Perusing the cross examination, the
occurrence of the accident is not challenged at all.
However, some questions regarding negligence and
rashness on the part of the driver of the ST bus tearing
registration No. UP-65-R-1060 are put which are admitted
by the applicant. He has admitted that, the accident took
place due to sole negligence on the part of the driver of the
said bus. The applicant has also admitted that FIR
(complaint) was lodged against the driver of the said ST
bus UP- 65-R-1060. In the cross examination taken by
opponent no. 3, the applicant has admitted that the
accident took place at about 1:30am (mid-night) and he
was sleeping in the bus. There were approximately 35
passengers in the bus. Further, it is admitted that he was
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the tour organizer of the said bus. Further. he has
admitted that, Parulben wife of the applicant accompanied
the applicant as tour organizer and not as a passenger.
Further, he has admitted in cross examination that as he
was sitting at the left side in the bus, he could not know
what happened from behind. Further, the applicant has
admitted in cross examination that the driver of his bus
jumped off the bus, therefore, the bus collided with on
coming truck. No other witness is examined by any party.
Even, the driver of the bus has not entered the witness
box. In absence of independent evidence of any eye
witness, the tribunal has to rely upon the oral evidence of
the applicant. It prima facie appears that the accident has
occured due to sole negligence on the part of the driver of
the ST bus bearing registration No. UP-65-R-1060. It
appears from the evidence that, before the bus dashed with
the on coming truck, the driver of the said bus jumped off
the bus due to fear of accident and the bus collided with
the on coming truck and at the same time another two
vehicles following the said bus were so collided with each
other. So far as the injures caused to the deceased
Parulben is concerned, only the driver of ST bus bearing
registration No.UP-65-R-1060 can be held responsible.
Negligence on the part of another bus and TATA Sumo is a
different matter for which they can be penalized by way of
criminal proceedings. But, so far as, the liability of
compensation is concerned, only the bus driver of the bus
bearing registration No.UP-65-R-1060 is responsible for
the occurrence. Therefore, the owner and insurance
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company of the said bus are jointly and severally liable to
pay compensation. Accordingly. the applicant has
established that, the deceased sustained injuries in the
vehicular accident as narrated in his deposition. Hence, I
have decided issue no.1 in affirmative."
9. Set of police documents are in Bengali language as
accident took place in State of West Bengal. In trial proceedings,
the parties have placed on record certified copy of police record
and it is translated in English version. Exh.78 is copy of FIR. It
is given by one Mr.Samir Hazra. It involves three vehicles in the
road accident i.e. ST Bus, Luxury Bus and Tata Sumo. Further,
no specific allegations of rash and negligent driving is given
against driver of any of the vehicle. Deceased was travelling in ST
Bus, which is insured with appellant. Inquest Panchnama is
placed on record at Exh.87. It indicates that at the time of road
accident, one lorry was coming from opposite side and accident
occurred front to front at about 3.00 am dated 19.12.2001. In
consequence of the above persons carried the body with heavily
injured having blood shed to the Burdwan Medical College and
Hospital. Husband of the deceased viz. Girish Shah twice
entered into witness box firstly at Exh.65. However, he is not
cross examined so far as affidavit in chief is concerned. In
Exh.65, it is alleged that driver of ST bus was driving bus in
excessive speed. Another affidavit in Chief was filed at Exh.76, it
is nothing but it is repetition of Exh.65. In cross examination
carried out by respondent nos.6 and 9, husband of the deceased
has admitted that ST bus in which he was travelling was driven
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in rash and negligent manner. He has admitted suggestion that
at the time of road accident, ST bus driver lost his control and
because of that, two vehicles coming from behind dashed with
ST bus. It is also suggested that accident took place due to sole
negligent of driver of ST bus. Present appellant also cross
examined husband of the deceased. Learned advocate Mr.
Dwivedi relied on para 12 of the cross examination of the
claimant to submit that claimant came to know about accident
no sooner he heard noise due to road accident and therefore,
this evidence could not be said that driver of offending vehicle
was sole negligent in road accident. However, in para 13,
suggestion made to the claimant in cross examination has been
noted by the learned Tribunal to the effect that when ST bus was
coming to Kolkatta from Bhagalpur, truck was coming from
opposite side and at that time, driver of ST bus jumped from ST
bus and because of that reason, ST collided with on coming
truck and consequently, vehicles coming from behind ST bus
dashed with it. Apart from above evidence, there is no other
evidence on record of either ST driver, luxury bus driver or TATA
sumo driver. They did not enter into witness box to disclose facts
of road accident.
10. In juxtaposition of above evidence, learned Tribunal
reached to conclusion that ST driver was fully negligent in
causing road accident. Each evidence on record point out finger
against him for causing road accident. To counter such evidence,
ST bus driver was expected to enter into witness box but he
deliberately did not do so. Even he has not contested claim
petition by filing written statement. Owner of ST Bus or
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appellant who is insurer of ST bus has not taken up any
proceedings before the learned Tribunal to secure presence of ST
bus driver. Therefore, adverse inference is required to be drawn
against ST bus driver.
11. In similar fact situation, the Hon'ble Apex Court in the case
of Vimla Devi Versus National Insurance Company Limited [2019
(2) SCC 186] in para 30 has held 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."
12. In view of above, this Court finds no error in the impugned
order so far as assessing driver of ST bus fully negligent in
causing road accident. The appeal sans merits and requires to
be dismissed. Accordingly, first appeal is dismissed. Record and
proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
