Gujarat High Court
Oriental Insurance Co Ltd vs Jayaben Kanjibhai Prajapati on 6 May, 2025
NEUTRAL CITATION
C/FA/24/2009 JUDGMENT DATED: 06/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 24 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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ORIENTAL INSURANCE CO LTD
Versus
JAYABEN KANJIBHAI PRAJAPATI & ORS.
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Appearance:
MR ANKIT Y BACHANI(5424) for the Appellant(s) No. 1
DS AFF.NOT FILED (R) for the Defendant(s) No. 6,7
MR BY MANKAD(440) for the Defendant(s) No. 1,2,3,4
MS KRUPALI BHATT for MR PALAK H THAKKAR(3455) for the Defendant(s)
No. 10
REFUSED SERVED (R)(70) for the Defendant(s) No. 9.1
RULE SERVED BY DS for the Defendant(s) No. 5,8
UNSERVED EXPIRED (R) for the Defendant(s) No. 9.2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 06/05/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Ankit Bachani for the
appellant and learned advocate Ms. Krupali Bhatt for
learned advocate Mr. Palak H. Thakkar for respondent
No.10. Learned advocate Mr. B. Y. Mankad appears for
and on behalf of respondent Nos.1 to 4, however, he
remained absent when the matter was taken up for
hearing. Perused the record.
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2. The challenge in the present appeal is by the appellant -
insurance company challenging the judgment and award
dated 23.8.2006 passed by learned Motor Accident Claims
Tribunal (Main), Valsad in M.A.C.P. No.1242 of 2002.
3. The facts in brief of the case are as under:
* On 28.4.1998, deceased Kanjibhai Bhanjibhai
Prajapati was travelling in Jeep No.GJ-15-8353 with other
passengers from Bombay to Valsad. When the jeep
reached near village Gundlav, near GIDC, opponent No.1
- driver of truck No.HR-45-1605 came in a rash and
negligent manner and while overtaking a vehicle going
ahead of it, failed to overtake successfully.
Resultantantly, dashed with the jeep in which deceased
was travelling with other passengers. Hence, deceased
sustained serious injuries and succumbed.
* Claimants being the legal heirs of the
deceased filed claim petition for a compensation of
Rs.12,00,000/- from the opponents. Opponents were
served with summons. Opponent nos.1 and 2 i.e. the
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driver and owner of the truck did not contest the claim
petition while opponent No.3 - insurance company
appeared and filed Written Statement at Exh.61. While
opponent nos.4 and 5 i.e. the driver and owner of the
jeep did not contest the claim petition while opponent
No.6 - insurance company of the Jeep appeared and filed
Written Statement at Exh.56.
* After framing of issues, claimant No.4 - son of
deceased submitted his deposition at Exh.64 and
produced FIR, Panchnama, PM report, and other
documents in support of claim petition.
* After considering the evidence, learned
Tribunal partly allowed the claim petition by directing
opponent Nos.1 to 3 to pay an amount of Rs.7,70,000/- to
the claimants with interest @ 9% p.a. from the date of
application till realisation while claim petition against
opponent Nos.4 to 6 i.e. the driver, owner and insurance
company of the jeep were exonerated.
* Being aggrieved and dissatisfied with the
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impugned judgment and award, the appellant - insurance
company has filed the present appeal.
4. Learned advocate for the appellant has submitted that
while considering the question of negligence, learned
Tribunal has only relied upon FIR and Panchnama. It is
further contended that considering the nature of accident,
the driver of the truck was not solely negligent in the
occurrence of accident. There is no independent evidence
whereby the negligence can be attributed solely on the
shoulder of driver of the truck. Submission canvassed by
Learned Advocate for the appellant is that the driver of the
jeep was equally rash and negligent in the occurrence of
accident. No other submissions are canvassed except the
above.
5. I have considered the submissions canvassed by the
learned advocates for the parties and perused the Record
and Proceedings. It appears from the Record and
Proceedings and impugned judgment that on the date of
accident, deceased was travelling with other passengers in
the jeep and in the early morning at about 3.45 am, when
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the jeep reached near village Gundlav, near GIDC,
opponent No.1 driver of the truck came in excessive speed
and in an attempt to overtake a vehicle going ahead of it,
dashed with the jeep due to unsuccessful attempt in
overtaking. FIR was lodged against the driver of the truck
by the co-passengers of the jeep. Panchnama of the place
of accident which is produced at Exhibit 48 is very clear
and unambiguous. It appears from the Panchnama that
the accident has occurred because of the negligent and
careless driving of the driver of the truck. In an attempt to
overtake a vehicle going ahead of it, the truck dashed with
the jeep. Resultantly, deceased succumbed. The driver of
the offending truck who has witnessed the happening of
the accident has chosen not to contest the claim petition
and also did not enter into the witness box to nullify the
allegation of negligence which is alleged by the claimant.
6. In absence of any contrary evidence either oral or
documentary, learned Tribunal cannot be said to have
faulted in appreciating the evidence. In absence of any
contrary material, I do not find any reason to interfere in
the finding of negligence. As the challenge is only limited
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to the question of negligence, I am not dwelling into other
aspects of the compensation.
7. In view of above, the present First Appeal requires to be
dismissed. Accordingly, it is dismissed. Interim Relief, if
any, stands vacated forthwith. No order as to costs.
8. Record and Proceedings, if any, be sent back to the
concerned Court / Tribunal, forthwith.
(D. M. DESAI,J)
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