Gujarat High Court
Reliance General Insurance Company ... vs Harendrasinh Balvantsinh Zala on 31 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/4194/2022 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4194 of 2022
With
R/FIRST APPEAL NO. 4384 of 2022
With
R/FIRST APPEAL NO. 4388 of 2022
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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RELIANCE GENERAL INSURANCE COMPANY LIMITED
Versus
HARENDRASINH BALVANTSINH ZALA & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MAKBUL I MANSURI(2694) for the Defendant(s) No. 5
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 31/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. Present appeals are filed by the respective appellants
challenging the common judgment dated 16.02.2022 and award
dated 25.02.2022 passed by the learned Motor Accident Claims
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Tribunal, (Aux.), Ahmedabad at Mirzapur. The First Appeal
No.4194 of 2022 is emanating from MAC Petition No.1650 of
2010. The First Appeal No.4384 of 2022 is emanating from
MAC Petition No.1797 of 2010 and the First Appeal No.4388 of
2022 is emanating from MAC Petition No.1798 of 2010.
2. Heard learned advocate Mr. Vibhuti Nanavati for the
appellants, learned advocate Mr. Rathin P. Raval for respondent
No.4 and learned advocate Mr. Makbul I. Mansuri for
respondent No.5. Though served. None appeared for respondent
Nos.1, 2 and 3.
3. Since all the appeals are emanating from the same
facts and submissions, therefore, appeals are taken up for final
disposal forthwith.
4. The brief facts of the case are as under:-
4.1. On 26.06.2010 at approximately 3.30 a.m. deceased
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Kiritkumar Panchal, deceased Manilal Ambalal Panchal and
deceased Manjulaben Manilal Panchal were travelling from
Shirdi to Godhara. When the car reached near Anandpura
Village on Vadodara-Halol Highway, a truck bearing
registration No.GJ-12-Y-9515 was stationed by the driver of the
truck on the road without any care and caution as well as
without any side signal or any barricade. The car bearing
registration No.GJ-5AR-4389 was dashed and went under the
rear part of that truck and resultantly, accident was occurred. In
the said accident the deceased of MACP Nos1650/2010, 1797 of
2010 and 1798 of 2010 had sustained fatal injuries and during
the course of treatment, they were died. The heirs of Manilal
Panchal has filed MACP No.1797 of 2010 for a compensation
of Rs.5,00,000/- before the learned Motor Accident Claim
Tribunal, District Ahmedabad at Mirzapur and learned Tribunal
has awarded Rs.5,76,000/- with interest @ 9% per annum from
the date of claim petition till its realization. The heirs of
Manjulaben Manilal Panchal has filed MACP No.1798 of 2010
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for a compensation of Rs.5,00,000/- before the learned Motor
Accident Claim Tribunal, District Panchmahals at Godhra and
learned Tribunal has awarded Rs.7,42,000/- with interest @ 9%
per annum from the date of claim petition till its realization. The
heirs of Kiritkumar Manilal has filed MACP No.1650 of 2010
for a compensation of Rs.9,00,000/- before the learned Motor
Accident Claim Tribunal, District Ahmedabad at Mirzapur and
learned Tribunal has awarded Rs.10,94,000/- with interest @
9% per annum from the date of claim petition till its realization.
The respective insurance companies i.e. opponent No.2 and 5
filed their respective written statements at Exhibit-19, 21 & 21
and Exhibit-28 and 27 respectively and contested the claim
petition. Opponent Nos.1, 3 and 4 did not appear. After
considering the oral as well as documentary evidences, the
learned Tribunal allowed the claim petition against opponent
Nos.1, 2 owner and insurance company of the truck and
dismissed the petition against opponent Nos.3 to 5 i.e. the
driver, owner and insurance company of Qualis Car. The
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learned Tribunal passed an award directing opponent Nos.1, 2
to pay compensation of Rs.5,76,000/-, Rs.7,42,000/- and
Rs.10,94,000/- in MACP No.1797 of 2010, 1798 of 2010 and
1650 of 2010 respectively with interest at the rate of 9% per
annum from the date of claim petition till its realization with
proportionate costs. Being aggrieved and dissatisfied with the
aforesaid judgment and award, the appellants of First Appeal
No.4194 of 2022, First Appeal No.4384 of 2022 and First
Appeal No.4388 of 2022 are before this Court.
5. Learned advocate for the appellants submitted that
the finding recorded by the learned Tribunal on the issue of
contributory negligence holding the truck solely negligent in
causing the accident is against the oral as well as the
documentary evidence. It is further submitted that if the truck
driver had stopped the truck in the middle of the road, the entire
front portion of the Qualis would have dashed with the rear
portion of the truck, however, the Qualis driver was not injured
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in the said accident. The panchnama of the place of accident
further reveals that the distance between the truck and the car
was four feet after the impact. Which clearly indicates that the
Qualis Car was in such a high speed that after the impact the Car
was pushed back about four feet. As per the case of the
claimants, the journey from Shirdi was started on 25.06.2010 in
the morning and the accident took place on 26.06.2010 at 3:30
a.m. This means that the driver of the car was plying the car for
more than 20 hours. Such a long driving would lead to fatigue to
the driver of the car and because of the negligence of the car
driver, the accident took place. It is further submitted that the
learned Tribunal has completely overlooked the admission of
the driver of the Qualis Car who has deposed that he saw the
truck at the distance of 250 to 300 feet before the occurrence of
the accident. The panchnama Exhibit-33 indicates that no brake
marks are found on the road. When the driver of the car had
seen the truck, he would have applied the brakes and could have
avoided the accident. It is further submitted that the truck was
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standing on the road because of the burst of rear tyres on the
conductor side. No other submissions except the above are
canvassed by learned advocate for the appellant.
6. Per contra, learned advocate Mr. Makbul I. Mansuri
for original claimant i.e. the present respondent No.5 supported
the award and submitted that the offending truck was stationary
on the middle of the road without any indicator, sings or signals.
The fact which is pleaded by the driver of the truck in his oral
deposition further strengthens the case of the claimants on the
issue of negligence. It is further submitted that driver of the
truck did not take care while stopping the truck on the middle of
the road. It is further submitted that because of the full speed of
the Qualis Car, the driver of the Qualis Car could not control the
car and it dashed with the back portion of the truck in which the
front part of the car was completely broken and damaged. It is
further contended that the truck driver did not lodge any
complaint. This conduct also establishes the fact that the driver
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of the truck was equally responsible for the occurrence of the
accident. It is further submitted that the claimants vide Exhibit-
41 have produced the judgment and award dated 27.02.2015 of
Motor Accident Claims Tribunal (Aux.) Panchmahahl at Godhra
passed by a common order in MACP Nos.930, 931, 932 and 933
of 2010.
7. Learned advocate Mr. Rathin P. Raval for respondent
No.4-United India Insurance Company submitted that the
learned Tribunal has rightly decided the issue of negligence and
exonerated opponent Nos.3 to 5 from the liability of
compensation. The oral deposition of the driver of the truck and
the panchnama Exhibit-33 indicates that the truck driver was
negligent in stopping the truck in the middle of the road without
any indicator, sign or signal. It is further submitted that the other
claimants who sustained injuries in the said accident has also
deposed that the truck driver was negligent in the occurrence of
accident. Learned advocate for the opponent-Insurance
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Company has relied upon Sections 121, 122 and 126 of the
Motor Vehicles Act and Rule No.15 of Road Regulations, 1989.
8. We have considered the submissions of the learned
advocates for the parties and also perused the record and
proceedings. The learned Tribunal has partly allowed the claim
petition by exonerating opponent Nos.3 to 5 i.e. owner, driver
and insurance company of the Qualis Car. The only question
which is under consideration is on the basis of the evidence on
record whether negligence can be attributed solely on the
shoulder of the truck driver or not. Allegations and counter-
allegations are levelled by the drivers of the respective vehicles
in shirking away the responsibility of the occurrence of the
accident. As per the panchnama Exhibit-33, the width of the
road is 22 feet and there are no brakemarks on the road. The
claimants of all the claim petitions have stated that the driver of
the Qualis Car was rash and negligent and was plying he Qualis
Car at an excessive speed. In absence of any material to indicate
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any steps or actions being taken by the driver of the Qualis Car
in avoiding the accident, in our view, the learned Tribunal has
committed an error in not holding composite negligence of both
the drivers in the occurrence of accident. The fact which has
been observed by the learned Tribunal that the driver of the
Qualis Car was not injured in the accident may be because, he
would have tried to take the car on the right hand side of the
road. The panchnama Exhibit-33 further reveals that the
distance between the rear part of the truck and the Qualis Car
was four feet. The panchnama supports the version of the truck
driver, which indicates that the rear side wheels on the
conductor side were found in burst condition. The condition of
the Qualis Car also indicates the force at which the car would
have dashed with the rear portion of the truck. Therefore,
considering the panchnama as well as the version of the
claimants, it is found that both the drivers were negligent. Now
the question remains as to which driver of the offending vehicles
has contributed more in the occurrence of the accident. On the
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basis of the evidence and the discussions made above, we are of
the view that the driver of the truck has contributed 70% in the
occurrence of accident and the driver of the Qualis Car has
contributed 30% in the occurrence of the accident.
9. Thus, First Appeals are partly allowed. The impugned
judgment and award is modified to the extent that original
opponents are jointly and severally liable to pay the
compensation to the claimants in the proportion of 70% and
30% respectively. The appellant-Insurance Company is also
entitled to refund of excess amount of compensation that has
been deposited before the learned Tribunal. The learned
Tribunal shall refund the excess compensation to the appellants.
Rest of the award remains unaltered. No order as to costs.
Record and proceedings to be sent back forthwith.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
RINKU MALI
