Gujarat High Court
United India Insurance Company Limited vs Jaan Mohmad Momalvev on 16 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/2499/2010 JUDGMENT DATED: 16/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2499 of 2010
With
R/FIRST APPEAL NO. 2501 of 2010
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
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UNITED INDIA INSURANCE COMPANY LIMITED
Versus
JAAN MOHMAD MOMALVEV & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 4,4.1
MR KIRIT I PATEL(628) for the Defendant(s) No. 4.1.1,4.2
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 16/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The captioned First Appeals are preferred by the
appellant-Insurance Company against the impugned
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common judgment and award passed by the learned Motor
Accident Claims Tribunal (Aux.), Court No.14, Ahmedabad
in Motor Accident Claim Petition Nos.774, 775, 776, 777,
778, 779, 780 of 2001, whereby the learned tribunal has
partly allowed the claim petitions.
2. Heard learned advocate Mr.Vibhuti Nanavati for
the appellant-Insurance Company and learned advocate
Mr.Kirit Patel for respondent Nos.4.1.1 and 4.2. Though
served, none appeared for respondent No.3.
3. Since the common issues are involved in these
appeals, upon request of learned advocates for the parties,
captioned appeals are taken up together and decided by
this common judgment.
4. Brief facts of the case in captioned First
Appeals are as under:
4.1 On 08.11.2000, (i) Ashish Vallabhbhai
Khambhayata, with (ii) his brother Bharatbhai Vallabhbhai
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Khambhayata (iii) his wife Hinaben Ashish Khambhayata,
(iv) his mother Nirmalaben Vallabhbhai Khambhayata, (v)
his daughter Krusha Ashish Khambhayata, (vi) his father-
in-law Kumandas Nathubhai Zinzuwadia and (vii) his
mother-in-law Kantaben Kumandas Zinzuwadia, were
traveling in a Maruti Van bearing No.GJ-15-A-6177. The
said Maruti Van was driven by Ashish Vallabhbhai
Khambhayata. The other family members of the claimant
No.1 Vallabhbhai Khambhayata, were also traveling in
other 3 vehicles namely Maruti Zen, Indica, another
Maruti Zen. All 4 cars were proceeding from Ajmer to
Nathdwara on N.H. No.8. At near village Devgadh, a
Truck bearing Registration No.RJ-02-G-2737 coming from
opposite direction in full speed and in rash and negligent
manner knocked down maruti van bearing No.GJ-15-E-
6177, at 10.45 a.m. In the said accident all passengers
including driver namely Ashish Vallabhbhai Khambhayata,
expired because of accidental injuries. Separate Claim
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petitions were filed for the compensation.
Sl. MACP Nos. Claimants Claimed
amount
(Rupees)
1. 774/2001 1. Vallabhbhai C. Khambhayata 2,40,000/-
2. Hiteshbhai V. Khambhayta
(For deceased Nirmala Vallabhbhai
Khambhayata)
2. 775/2001 1. Vallabhbhai C. Khambhayata 10,80,000/-
2. Hiteshbhai V. Khambhayta
(For deceased Bharatbhai
Vallabhbhai Khambhayata)
3. 776/ 2001 1. Vallabhbhai C. Khambhayata 24,00,000/-
2. Hiteshbhai V. Khambhayta
(For deceased Ashish V.
Khambhayata)
4. 777/ 2001 1. Vallabhbhai C. Khambhayata 7,20,000/-
2. Hiteshbhai V. Khambhayta
(For deceased Hina Ashish
Khambhayata)
5. 778/2001 1. Vallabhbhai C. Khambhayata 2,34,000/-
2. Hiteshbhai V. Khambhayta
(For deceased Krusha Ashish
Khambhayata)
6. 779/2001 Kajalben Kumanbhai Zinzuvadia 5,40,000/-
(For deceased Kantaben Kumanbhai
Zinzuvadia)
7. 780/2001 Kajalben Kumanbhai Zinzuvadia 20,13,000/-
(For deceased Kumanbhai
Nathabhai Zinzuvadia)
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4.2 In all captioned claim petitions, driver and
owner of the truck bearing Registration No. RJ-02-G-2737
and owner of Maruti Van bearing registration No.GJ-15-E-
6177 were served with the notice. The driver and owner
of the truck i.e. opponent Nos.1 and 2 respectively and
owner of Maruti Van i.e. opponent No.4 though duly
served with the notice, have not filed their Written
Statement.
4.3 Opponent No.3 being the Insurance Company of
the Truck appeared and filed Written Statement at Ex.23
in MACP Nos.774, 775 and 776 of 2001 and at Ex.22 in
MACP Nos.777, 778, 779 and 780 of 2001.
4.4 Opponent No.5 being the Insurance Company of
Maruti Van, though duly served; however did not appear
and chose not to file Written Statement.
4.5 All claim petitions were consolidated and
decided by way of a common judgment. Vallabhbhai C.
Khambhayata led oral evidence vide Ex.31 and also
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produced documentary evidences such as Panchnama, FIR,
Postmortem report and other evidences. After recording the
oral deposition of Vallabhbhai C. Khambhayata, the said
claimant expired on 12.01.2007.
4.6 After considering the evidence on record,
learned Tribunal has awarded following compensation in
favour of respective claimants.
Sl. MACP Amt. of Amt. Amt. payable Amt. payable by
No Nos. claim awarded by the driver the driver owner
(Rs.) (Rs.) owner and and insurer of
insurer of Maruti Car
truck bearing bearing
registration registration No.
No. RJ-02-G- GJ-15-E-6177 -
2727-80%(Rs.) 20% (Rs.)
01 774-01 2,40,000/- 1,60,000/- 1,28,000/- 32,000/-
02 775-01 10,80,000/- 4,33,000/- 3,46,400/- 86,600/-
03 776-01 24,00,000/- 6,72,800/- 5,38,240/- NIL
04 777-01 7,20,000/- 4,33,000/- 3,46,400/- 86,600/-
05 778-01 2,34,000/- 1,60,000/- 1,28,000/- 32,000/-
06 779-01 5,40,000/- 3,85,000/- 3,08,000/- 77,000/-
07 780-01 20,13,000/- 5,43,000/- 4,34,400/- 1,08,600/
4.7 Being aggrieved and dissatisfied with the
impugned judgment and award, the Insurance Company
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has filed all captioned First Appeals.
5. Learned advocate for the appellant - Insurance
Company has raised the contention that the learned
Tribunal has erred in deciding the issue of negligence. It is
submitted that at Ex.37 Vallabhbhai C. Khambhayta, father
of deceased Ashishbhai V. Khambhayata has stated that the
right front tyre of Maruti Van had burst, resultantly
deceased driver of the Van lost control over the steering
and went on the wrong side of the road. As the truck
bearing No.RJ-02-G-2727 was coming from opposite
direction, the Maruti Van collided with the Truck on the
front portion. As per the sketch drawn by the Police
Authority at Ex.36, Maruti Van was coming from Biyavar
Bhim to Kamlighat i.e. from north to south and the truck
was coming from Kamlighat towards Biyavar Bhim i.e.
from south to north. As per the sketch of the scene of the
accident, the car and truck were found lying on the Kacha
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road i.e. on the western side of the road. The driver of
the Maruti Van was solely negligent in causing the
accident as he lost control over the steering because the
right front side tyre of Maruti Van burst.
5.1 It is further contended that when there is ample
evidence by way of FIR at Ex.37, Panchnama at Ex.36
alongwith the sketch of scene of accident, non-examination
of the driver of the Truck is of no relevance. When the
documentary evidence clearly establishes the role of the
driver of Maruti Car in causing the accident, non-
examination of the driver of the Truck is not the decisive
factor in deciding the negligence.
5.2 Another contention which has been raised by
learned advocate for the appellant is that Hiteshbhai V.
Khambhayata, who was the brother of deceased Ashisbhai
V. Khambhayata, cannot be considered as a dependent for
claiming compensation. When the father of deceased
Ashisbhai Khambhayata has expired during the pendency
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of claim petition, the claim petition deserves to be
dismissed on the ground that cause does not survive and
there are no dependents alive at the time of deciding the
claim petition.
6. Per contra, learned advocate for the respondents
claimants has supported the award and submitted that no
interference is called for by this Court as the learned
Tribunal has rightly considered the evidence and the
evidentiary value of the evidence produced on record. It is
submitted that the Truck has collided with the Maruti Van
on the opposite side of the road. Such fact has not been
controverted by either owner or driver of Truck. The
learned Tribunal has rightly held the driver of the Truck
negligent to the extent of 80%. It is fairly contended by
learned advocate for the respondents-claimants that the
claimants has not challenged the award on fastening of
negligence to the extent of 20% on the driver of the
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Maruti Van.
7. We have considered the submissions canvassed
by learned advocates for parties and perused the record
and proceedings. The learned Tribunal while considering
the issue of negligence has observed that the driver of
Truck has not been examined and adverse inference has
been drawn. Only on the ground of non-examination of
the driver of Truck, the learned Tribunal has held 80%
negligence on the part of the driver of truck. At this stage,
it would be profitable to refer Panchnama at Ex.36 as well
as the sketch of the scene of the accident. It transpires
that the vehicles in question are found lying on the Kacha
road on the eastern side. The exact location of the Maruti
Van is also found on the edge of the western side of the
road which is exactly opposite side of the road on which
the Maruti Van ought to have been driven. The claimants
have contended that the offending Truck came from
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opposite direction and dashed with the Maruti Van which
is contrary to the position of vehicles which are found in
the Panchnama. When the panchnama clearly indicates the
position of vehicles at the site of the accident, learned
Tribunal has faulted in ignoring such a vital piece of
evidence while deciding the issue of negligence. When the
Maruti Van is found on the extreme right edge of the
road, a presumption can be drawn that the driver of
Maruti Van has contributed more in the occurrence of
accident. In the complaint at Ex.37, the complainant who
is the father of deceased Ashish Khambhayata has stated
that the front right side tyre of Maruti Van had burst,
resultantly, his son lost control over the Maruti Van. In
such facts and circumstances, attributing negligence of 80%
on the part of the driver of Truck is against the evidence
on record and in our opinion, the learned Tribunal has not
dealt with question of negligence the way in which it
should have been.
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8. In cases arising as a result of an accident in
which compensation is claimed, it is necessary for the
claimant to establish negligence on the part of the other
vehicle. In a case of contributory negligence, the crucial
question on which the liability depends would be whether
either party could, by exercise of reasonable care have
avoided the consequence of other's negligence. In the
present case, whether the driver of Maruti Van tried to
avoid the accident is missing. Similarly, the evidence is
missing as to what steps the driver of the Truck took to
avoid the accident. As per the complaint filed by the
father of deceased of Maruti Van before the Police, that
the right front side of the Maruti Van burst and because of
such reason, his son lost control over the steering and the
Van went on the extreme opposite side of the road and
dashed with the Truck which was coming from opposite
side is a sufficient evidence that the driver of Maruti Van
has contributed more than 20% in the occurrence of
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accident. On assessment of the evidence and in the facts
and circumstances of the case and looking at the
Panchnama and sketch of the scene of accident, we are of
the opinion that the ratio of negligence of both the
vehicles is required to be modified and we hold that both
the vehicles are found negligent to the extent of 50% each
in the occurrence of accident. We hold driver of the
Maruti Van negligent to the extent of 50% and driver of
the Truck negligent to the extent of 50% in the occurrence
of accident.
9. The question of dependency is another issue
which has been raised by learned advocate for the
Insurance Company. Claim Petition Nos.774 and 776 and
2001 was originally filed by Vallabhbhai C. Khambhayata
for her wife-deceased Nirmala Khambhayata and son-
deceased Ashish V. Khambhayata respectively and
Hiteshbhai Khambhayata is brother of the deceased
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Ashishbhai Khambhayata. After recording the oral
deposition the father of deceased Ashishbhai Khambhayata
at Ex.31, Vallabhbhai C. Khambhayata passed away on
12.01.2007. Deceased was married and having his family.
Brother Hiteshbhai Khambhayata has not come forward
before the learned Tribunal and stated on oath that he is
dependent of deceased Ashishbhai Khambhayata. In
absence of this vital evidence, a married man having his
own earnings cannot be said to be a dependent for the
purpose of compensation. However, looking to a peculiar
set of facts that the father who was claimant No.1 in the
claim petition deposed before the learned Tribunal and
thereafter unfortunately passed away, is in our opinion,
held to be a dependent. The share of compensation of
deceased father can be claimed by the claimant No.2
Hiteshbhai Khambhayata not as a dependent of deceased
Ashishbhai Khambhayata but under the law of succession,
the compensation being a movable property, claimant No.2
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Hiteshbhai Khambhayata can get a share of Vallabhbhai
Khambhayata - claimant No.1. Had Vallabhbhai
Khambhayata been alive, the situation would have been
different and the view expressed by us might have been
different. Accordingly, claimant No.2 Hiteshbhai
Khambhayata is entitled to the compensation which he
ought to get on account of an heir of deceased Vallabhai
Khambhayata and not as a dependent of deceased
Ashisbhai Khambhayata.
10. In view of the above discussions, the captioned
First Appeals are partly allowed. Awarded compensation to
be paid as per the ratio of negligence which has been held
hereinabove. Award may be drawn accordingly.
11. Record and Proceedings be sent back to the
concerned Court/Tribunal.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
MANOJ
