Gujarat High Court
New India Assurance Co. Ltd vs Maniben Ramanbhai Vankar on 23 January, 2025
NEUTRAL CITATION
C/FA/1864/2008 ORDER DATED: 23/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1864 of 2008
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NEW INDIA ASSURANCE CO. LTD
Versus
MANIBEN RAMANBHAI VANKAR & ORS.
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Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1
MR BM MANGUKIYA(437) for the Defendant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 23/01/2025
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 20.12.2007 passed by the Motor Accident
Claims Tribunal, Panchmahals in Motor Accident Claim Petition
No.2803 of 2000.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
24.05.2000, the claimant and other persons were going as
pedestrian towards Agarvada and when they reached near the
place of accident, opponent No.1 came driving Scooter No.GJ-6-
EE-2409 in rash and negligent manner and dashed with the
claimant. As a result, the accident took place and claimant
sustained severe injuries. Therefore, offence to that effect is
registered before the Kothamba Police Station vide FIR being I-
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C.R.No.55 of 2000. The claimant has filed aforestated claim
petition under Section 166 of the Motor Vehicle Act, 1988
claiming compensation of Rs.7,00,000/-. The learned Tribunal
vide impugned judgment and award dated 20.12.2007 has
granted compensation to the tune of Rs.4,63,000/-. Hence, the
present appeal.
3. Heard learned advocate Ms.Dimple Thaker appearing for
the appellant - Insurance Company and learned advocate
Mr.B.M.Mangukiya appearing for the original claimant.
4. Learned advocate Ms.Thaker relied upon the copy of the
FIR and panchnama on the record and would submit that
vehicle No.GJ-6-EE-2409 is implanted as according to FIR and
chargesheet, vehicle No.GJ-1-K-7792 was involved in the road
accident but since that vehicle was not covered by insurance, the
claimant in collusion with driver and owner of scooter No.GJ-6-
EE-2409, implanted the said vehicle. She would further submit
that FIR and chargesheet are to be believed for the purpose of
establishing involvement of the vehicle in the road accident and
Insurance Company has very specifically raised this issue in the
written statement. Learned advocate Mr.Thaker referred to
impugned judgment and award and more particularly para 8 to
submit that learned Tribunal has committed serious error in not
believing the FIR and chargesheet for establishing involvement of
the errant vehicle. Reciting the deposition of IO at Exhibit-45,
she would submit that IO entered into witness box after seven
years despite being retired and therefore his deposition should
not be believed. Upon above submissions, she would submit to
allow this appeal.
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5. Per contra, learned advocate Mr.Mangukiya appearing for
the claimant would support the impugned judgment and award
and would submit that claimants have led necessary evidence
and first informant has categorically stated that he has given
further statement before the police within three days from
lodging of the FIR correcting the number of the scooter involved
in the road accident. He would further submit that IO has also
admitted this fact in his deposition that vehicle involved in the
accident is vehicle No.GJ-6-EE-2409, and not No.GJ-1-K-7792.
He would submit that filing of FIR and chargesheet cannot have
better value than the oral deposition made before the Court.
Upon above submissions, he would submit to dismiss this
appeal.
6. I have heard learned advocates for both sides and have
also perused the record and proceedings of claim petition. I have
also re-appreciated the evidence on record.
7. Apt to note that the Motor Vehicle Act, 1988 is a beneficial
piece of Legislation. The concept of just and fair compensation is
integral and seminal to the MV Act. The compensation to be
awarded under the principle of just and fair compensation to the
injured of the road accident or the legal representative/s of the
deceased person is based on the principle of fairness,
reasonableness and equability. Anguish of the heart or for
mental turbulence being consequential result of the road
accident cannot be actually compensated, but the quint
essentiality lies in adopting holistic and pragmatic view to the
computation of the compensation for the loss sustained, which is
to be in the realm of realistic approximation. Although exact or
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perfect arithmetical calculation of compensation for reparation of
the loss arrived from the road accident is almost impossible. The
Tribunal is bestowed with duty to make an endevour to award
just compensation regardless of the amount claimed by the
claimant. The determination of the quantum of compensation
therefore, must be liberal and not niggardly since the law values
life and limb in a free country in generous scale. Needless to
state that money may be awarded, so that something tangible
may be procured to reach something else of the like nature,
which has been destroyed or lost, but money cannot renew
physical frame that has been battered and shattered being a
result of the road accident. Yet Tribunal to endavour to bring
back victim to stage of pre-road accident as far as possible
Thus, the award must be reasonable and cannot be assessed
with moderation though it cannot at the same time be pity and
what could be granted must be just, fair and equitable
compensation.
8. The sole contention of learned advocate for the Insurance
Company is that vehicle No. No.GJ-1-K-7792 is involved in the
road accident. Despite being served, the driver of scooter No.GJ-
6-EE-2409 did not come forward to contest the claim petition
and deny the assertions made by the claimant. The Insurance
Company having served filed written statement at Exhibit-28
and raised contention that vehicle No.GJ-1-K-7792 is involved
in the road accident, however, presence of neither driver nor
owner of the vehicle has been secured by the Insurance
Company. The claimant entered into witness box and deposed at
Exhibit-34 and stated that she was dashed by vehicle No.GJ-6-
EE-2409. The maker of the FIR was examined who deposed that
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in the FIR vehicle number is stated to be No.GJ-1-K-7792,
however, as per Mark-13/2, very same person who is maker of
FIR gave further statement that the accident took place due to
rash driving of vehicle No.GJ-6-EE-2409. He has been cross-
examined by the Insurance Company but no fruitful facts are
coming out except denial questions. The investigating officer is
also called as witness at Exhibit-41 who deposed that due to
error, in the chargesheet also the number of vehicle is mentioned
as No.GJ-1-K-7792. He stated that vehicle No.GJ-6-EE-2409 is
invovled in the road accident. Learned advocate Ms.Thaker
referred to cross-examination of investigating officer and stated
that despite investigating officer has taken further statement, he
has not corrected the chargesheet and therefore, the deposition
of IO cannot be considered. I am failed to accept the contention
raised by learned advocate for the Insurance Company. On one
hand, the claimant in summary proceedings led evidence to
establish that vehicle No.GJ-6-EE-2409 is involved in road
accident and on other hand, Insurance Company raises
contention of non-involvement of the vehicle without leading any
kind of evidence.
9. In case of National Insurance Company Limited vs.
Chamundeswari - 2021 (18) SCC 596, the Hon'ble Supreme
Court held as under :
"8. It is clear from the evidence on record of PW-1 as
well as PW-3 that the Eicher van which was going in
front of the car, has taken a sudden right turn without
giving any signal or indicator. The evidence of PW-1 &
PW-3 is categorical and in absence of any rebuttal
evidence by examining the driver of Eicher van, the High
Court has rightly held that the accident occurred only
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due to the negligence of the driver of Eicher van. It is to
be noted that PW-1 herself travelled in the very car and
PW-3, who has given statement before the police, was
examined as eye-witness. In view of such evidence on
record, there is no reason to give weightage to the
contents of the First Information Report. If any evidence
before the Tribunal runs contrary to the contents in the
First Information Report, the evidence which is recorded
before the Tribunal has to be given weightage over the
contents of the First Information Report. In the judgment,
relied on by the appellant's counsel in the case of
Oriental Insurance Company Limited v. Premlata Shukla
and Others1, this Court has held that proof of rashness
and negligence on the part of the driver of the vehicle, is
therefore, sine qua non for maintaining an application
under Section 166 of the Act. In the said judgment, it is
held that the factum of an accident could also be proved
from the First Information Report. In the judgment in the
case of Nishan Singh and Others v. Oriental Insurance
Company Limited2, this Court has held, on facts, that
the car of the appellant therein, which crashed into truck
which was proceeding in front of the same, was driven
negligently by not maintaining sufficient distance as
contemplated under Road Regulations, framed under
Motor Vehicles Act, 1988. Whether driver of the vehicle
was negligent or not, there cannot be any straitjacket
formula. Each case is judged having regard to facts of
the case and evidence on record. Having regard to
evidence in the present case on hand, we are of the view
that both the judgments relied on by the learned counsel
for the appellant, would not render any assistance in
support of his case."
10. In view of above, the contentions raised by learned
advocate Ms.Thaker has no legs to stand. Learned Tribunal has
assessed entire evidence on record on touchstone of
preponderance of probabilities. I am failed to understand that
how Insurance Company can raise such kind of contention
without leading evidence. In fact, non leading of evidence itself is
suggestive of taking adverse inference against the Insurance
Company.
NEUTRAL CITATION
C/FA/1864/2008 ORDER DATED: 23/01/2025
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11. For the reasons stated hereinabove, according to this Court
learned Tribunal has not committed any error in fastening
liability upon the Insurance Company to pay the compensation.
The appeal sans merit and deserves to be dismissed. It is,
accordingly, dismissed. Registry is directed to send back the
record and proceedings to the concerned Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
