Gujarat High Court
New India Assurance Co Ltd, Registered ... vs Varshaben Hiteshbhai Desai on 17 June, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
C/FA/3677/2011 JUDGMENT DATED: 17/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3677 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Sd/-
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Approved for Reporting Yes No
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NEW INDIA ASSURANCE CO LTD, REGISTERED OFFICE AT 87,
MAHATMA
Versus
VARSHABEN HITESHBHAI DESAI & ORS.
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Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
MR DR BHATT(165) for the Defendant(s) No. 3,5
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 7
RULE SERVED for the Defendant(s) No. 1,2,4,6
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
Date : 17/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. Present appeal is preferred under Section 173 of the Motor Vehicle
NEUTRAL CITATION
C/FA/3677/2011 JUDGMENT DATED: 17/06/2025
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Act, 1988 against the judgment and award dated 13-05-2010 passed by
the Chairman, Motor Accident Claims Tribunal (Main), Navsari in
M.A.C.P. No.33 of 2003. The accident involves two vehicles one being
Maruti Zen Car and other being Tanker.
2. The appellant before the Court is the New India Assurance Co. Ltd.
insurer of Maruti Zen Car with contention that the Tanker driver, which
collided with Maruti Zen Car was equally negligent, if not totally
negligent and therefore, should share burden of compensation.
3. Learned Advocate for the appellant has argued that based on the
only version of one witness, who is claimant, entire case has been
decided by holding that the driver of Maruti Zen Car was driving rashly
and negligently. However, the Tribunal ought to have taken into
consideration correct picture, which had emerged on the basis of contents
of FIR as well as panchnama.
3.1 It is submitted that FIR and panchnama would clearly indicate that
the driver of the Tanker was also at fault and therefore, liability should
also be fixed of the driver of Tanker and consequently the Insurance
Company of Tanker.
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3.2 In this regard, learned Advocate for the appellant has referred to
and relied upon the decision of the Apex Court in case of Oriental
Insurance Co. Ltd. v/s. Premlata Shukla and others reported in (2007) 13
SCC 476 to contend that panchnama and FIR are relevant documents with
the Tribunal should consider, while considering the claim.
3.3 Learned Advocate for the appellant has lastly submitted that as the
driver of Maruti Zen Car faced criminal proceedings on the ground of
rash and negligent driving, has now been acquitted and hence also, the
case of the driver of Maruti Zen Car driving rashly and negligently
should not be believed.
4. As against this, learned Advocate Mr. Vibhuti Nanavati appearing
for respondent No.7- National Insurance Co. Ltd. of Tanker vehicle has
supported the findings given in the impugned judgment and award and
has also independently taken this Court through evidence of the witness,
who is also claimant to indicate that clear version has come out that rash
and negligent manner in which Maruti Zen Car was being driven by
respondent No.4.
4.1 Learned Advocate has also drawn attention of this Court to
evidence in the form of cross examination of this very witness at the
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hands of respondent No.3, insurance Company of Maruti Zen Car and
submitted that in such cross examination where she has referred to
negligence of the truck driver, though it appears that evidence is given
by this witness against very brother in law that is to say brother of the
deceased and therefore, there is no reason to doubt veracity of deposition
given by the witness.
5. Having heard learned Advocates for the parties and having perused
the documents on record, it appears that incident reported of 23-12-2001,
where deceased- Hiteshkumar and original petitioner No.1 (respondent
No.1 herein) along with other family members were traveling on National
Highway No.8 running between Ahmedabad and Mumbai, where near
vicinity of Village-Savrohi, Maruti Zen Car collided with on coming
Tanker causing accident resulting in death of Hiteshkumar.
5.1 Claim was filed by respondent Nos.1 to 5, which included the
driver of Maruti Zen Car as well being brother of the deceased. The
Tribunal placing much reliance on the evidence of respondent No.1-wife
of the deceased, which is recorded at Exh-56 arrived at conclusion that it
was the driver of the Maruti Zen Car (respondent No.4), who was driving
in rash and negligent manner and having found that the Tanker was
being driven in regular manner not attributing any negligence to such
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C/FA/3677/2011 JUDGMENT DATED: 17/06/2025
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vehicle has allowed the petition awarding compensation.
5.2 The Tribunal had ordered compensation to the tune of
Rs.7,56,400/- with interest at the rate of 9% per annum from the date of
the claim petition till its realization with proportionate costs.
5.3 Apparently, claimants have not challenged the award for
enhancement and it is only the Insurance Company of Maruti Zen Car,
which has challenged the award of the Tribunal and that too on the
ground that the Tribunal has failed to appreciate evidence in the form of
panchnama and FIR, which according to the appellant demonstrated rash
and negligent driving at the hands of driver of Tanker as well.
5.4 The Court has therefore, perused the translated version of FIR
registered on 23-12-2001 at Exh-111 and relevant portion with regard to
driving of the vehicle (tanker), the only reference is made that said
Tanker was traveling at speed, when it crashed into car.
5.5 Along with this, the Court may also perused the panchnama at
Exh-112 drawn on 24-12-2001, wherein the Court would find location,
where the accident took place on National Highway No.8 near Village-
Savrohi. The panchnama records that at the place of scene of accident,
one Maruti Zen Car was lying on the wrong side in the eastern direction
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leaving its original side. At the same time, the panchnama also records
that Tanker container which collided with Maruti Zen Car was lying
towards south and was in its proper direction.
5.6 Over and above aforesaid evidence, the Court has also perused
evidence of respondent No.1- claimant at Exh-56. It is pertinent to
observe that respondent No.1 was one of traveler siting in Maruti Zen
Car, which was driven by respondent No.4 (her brother in law) and in
her deposition in the form of Affidavit, she has deposed that Maruti Zen
Car was being driven by respondent No.4 in rash and negligent manner
and while was overtaking the vehicle collided with Tanker container
coming on from the other side. As a result of which, damage was caused
to Maruti vehicle as well as to the on coming Tanker.
5.7 Considering the aforesaid evidence with regard to accident, which
is caused and also evidence coming on record with regard to negligence
on the part of the driver of Maruti Zen Car, findings thus recorded by
the Tribunal appears to be appropriate and supported by evidence on
record.
6. In view of the aforesaid, the Court is unable to accept the
contention of appellant insurance Company of Maruti Zen Car that Tanker
container was also being driven in rash and negligent manner.
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7. In view of the aforesaid, no case is made out to interfere with the
findings of the Tribunal in the judgment and award dated 13-05-2010
passed by the Chairman, Motor Accident Claims Tribunal (Main), Navsari
in M.A.C.P. No.33 of 2003. Hence, the Appeal deserves to and the same
is hereby dismissed.
(A.Y. KOGJE, J)
(NSSG,J)
PARESH SOMPURA
