Gujarat High Court
New India Assurance Co. Ltd vs Narayan Motiram Teheliyani on 29 January, 2025
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C/FA/4562/2007 ORDER DATED: 29/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4562 of 2007
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NEW INDIA ASSURANCE CO. LTD.
Versus
NARAYAN MOTIRAM TEHELIYANI, & ORS.
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Appearance:
MR HEMANT S SHAH(756) for the Appellant(s) No. 1
MR GM AMIN(124) for the Defendant(s) No. 3
MR NIRAV C THAKKAR(2206) for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant being aggrieved
and dissatisfied with the judgment and award dated 10.2.2007
passed by the Motor Accident Claims Tribunal, Nadiad in Motor
Accident Claim Petition No.123 of 1993.
2. The brief facts of the case are that on 1.8.1992, when the
claimant was returning from Ahmedabad Office to Nadiad Office
and travelling in Jeep No. GCB 9328, the driver of the jeep was
driving the jeep rashly and negligently and thereby, accident has
taken place and the claimant received injuries in the form of
fractures and for that, the claimant filed claim petition claiming
compensation of Rs.4 lakh. However, the learned Tribunal
granted compensation of 3,07,000/- with 9% interest from the
date of filing the claim petition till realization. Therefore, the
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appellant - insurance company has filed First Appeal for
reduction of the compensation.
3. Heard learned advocate Mr. Hemant Shah for the
appellant. He would further submit that the learned Tribunal
erred in believing that the errant vehicle was ridden by Mr.
Vitthalbhai Sodha Parmar and not by the claimant. He would
further submit that the FIR of the road accident was filed by the
first informant Mr. Vyomesh Desai and in the FIR, he has
arraigned the claimant as rider of the jeep and such evidence
has been produced by the claimant himself on record, which
indicates that at the time of road accident, the claimant was
riding the jeep. He would further submit that going the through
the version stated in the FIR while jeep was plying the road,
suddenly, cow came across and pursuant to which, the jeep
driver lost control and dashed with the standing tree resulting
into injury to claimant as well as other persons. He would
further submit that the learned Tribunal ought to have assessed
the statement made in the FIR as true and correct to believe that
the claimant was the driver of the jeep and therefore, he cannot
get compensation of his self negligency.
3.1 Secondly, learned advocate Mr. Shah would submit that in
absence of any documentary evidence, the learned Tribunal has
taken up the income of the claimant to Rs.6500/-, which is on
the higher side.
3.2 Upon such submission, learned advocate Mr. Shah prays
to allow the First Appeal.
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4. This matter is listed under the warn list. Learned advocate
for the other side did not remain present. Since the matter is of
the year 2007, the matter is taken up for hearing.
5. As per the FIR, the claimant was riding the jeep on the date
of the accident. The FIR was given by the first informant Mr.
Vyomesh Desai produced at Exh.82, which is dated 1.8.1992,
but within few days, the police has recorded further statement of
Vyomeshbhai at Exh.85, in which, he has stated that he was not
the eye witness to the road accident, but since he reached to the
Hospital and learnt that the claimant has received injury and the
jeep is dashed with standing tree and therefore, he thought that
the jeep would have been driven by the claimant. He further
stated that on inquiry, he came to know that jeep was driven by
one Mr. Vitthalbhai Sodha Parmar. Statement of said
Vitthalbhai was also taken by the investigating officer, which is
produced at Exh.84 and he has admitted that on the date of the
road accident, he was driving the jeep. The claimant entered
into witness box at Exh.80 as PW 1 and in his chief examination,
he has categorically stated that the original opponent No.1 was
riding the vehicle at the time of the road accident. He has been
thoroughly cross-examined by the learned advocate for the
insurance company, where various suggestions that he was
riding the vehicle at the relevant time has been denied. The
contention raised by the insurance company that the driver of
the jeep was the claimant was in the written statement only.
The insurance company did not lead any evidence to address
this contention. The police record couples with the oral evidence
of the claimant proves that at the time of road accident,
Vitthalbhai was riding the jeep. The suspicion that the claimant
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was riding the vehicle does not remain after leading the
statement of the original opponent No.1 at Exh.84. Overall
appreciation of the evidence indicates that on the date of the
road accident, Vitthalbhai was driving the jeep and not the
claimant. In view of this, the contention of learned advocate for
the appellant insurance company that the claimant was riding
the jeep failed to stand.
6. Second contention raised by learned advocate for the
appellant that the learned Tribunal has erred in taking up
income of the claimant to RS.6500/- in absence of any
documentary evidence. Noticeably, the claimant was the
government employee and working as Engineer in the Water
Resources and Water Supply Department and earning Rs.8000/-
per month. That on the fateful day of the incident, after
completing office work at Ahmedabad, he was returning to
Nadiad Office. This fact has not been hotly contested by the
insurance company. The learned Tribunal though there is no
documentary evidence to believe that the claimant was Engineer
in Water Resources and Water Supply Department, has taken
up Rs.6500/- as monthly income of the claimant, which is bit
harsh. But at the same time, the learned Tribunal has not
granted compensation under the loss of future prospect though
in the cross-examination of the claimant, it is proved and
established that the claimant was made compulsory retired on
account of his injury. Therefore, non-grant of loss of future
prospect would be equalized with taking up the income of the
claimant at Rs.6500/- on higher side.
7. In view of above and for the foregoing reasons, according to
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this Court, the learned Tribunal has not committed any error in
passing the impugned judgment and award. Accordingly, the
First Appeal stands dismissed.
8. R & P, if any, to be sent back to the concerned Court
immediately.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
