Gujarat High Court
New vs Pushpaben on 5 September, 2008
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/2449/2008 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2449 of 2008
With
CIVIL
APPLICATION No. 6332 of 2008
In
FIRST APPEAL No. 2449 of 2008
=========================================================
NEW
INDIA ASSURANCE COMPANY LIMITED THROUGH LEGAL CELL - Appellant(s)
Versus
PUSHPABEN
AMBALAL PATEL - Defendant(s)
=========================================================
Appearance
:
(MR
PV NANAVATI) for
Appellant(s) : 1,MR VIBHUTI NANAVATI for Appellant(s) : 1,
None
for Defendant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/09/2008
ORAL
ORDER
1. Heard learned advocate Mr. Vibhuti Nanavati appearing on behalf of appellant ? New India Assurance Company Limited.
2. The appellant has challenged the award passed by Motor Accident Claims Tribunal (main) at Gandhinagar in Motor Accident Claim Petition No.132 of 2004 vide Exh.39 dated 30th October 2007.
3. The Claims Tribunal has awarded Rs.2,30,000/- with 9% interest in favour of respondent claimant.
4. Learned advocate Mr. Nanavati raised contention before this Court that Tribunal has committed error on the issue of negligence while considering Exh.26 ? police complaint of the accident and Exh.27 ? spot panchnama of the accident. He also raised contention that spot panchnama ? Exh.27 clearly suggests that scooter of the deceased got damage on the left side whereas eye-witness during the cross-examination has admitted that Qualis Car bearing registration No.GJ-1-HB-7779 dashed on the right side of the scooter bearing registration No.GJ-1-DL-4947. He also submitted that said witness Exh.35 was not an eye-witness even though his evidence was taken into account by Tribunal. He also raised contention that other independent eye-witnesses might have been available and they could have given more elaborate evidence as, from the evidence of the witness Exh.35 the witness has admitted that he did not wait or provide any medical assistance to the deceased on humanitarian approach and in spite of that he has stepped into the witness box to give evidence that he has seen the registration number of the offending vehicle from a distance of 10 feet which is also not proved as the accident took place at about 8:30 pm on 12th April 2004. Therefore, doubt has been created by learned advocate Mr. Nanavati against the evidence of Exh.35 of the independent witness. He also raised one contention that driver of the Qualis Car has been deleted before the Tribunal by the claimant, then, question of negligence in his absence cannot be examined by the Tribunal. He was very much party to the proceedings. Therefore, Tribunal has committed gross error in passing the award against the appellant ? Insurance Company.
5. On 12th April 2004 at about 8:30 pm, the deceased was driving his own scooter bearing registration No.GJ-1-DL-4947 with moderate speed and on the correct side of the road and coming from Ramnagar to Ahmedabad, on the way of Mahudi to Gandhinagar, as soon as he reached near the patia of village Pimplaj, the opponent No.1 came from oppsite direction with Qualis bearing No.GJ-1-HB-7779 with excessive speed in rash and negligent manner without following traffic rules and regulation came on wrong side and dashed the scooter in full force. Due to such dash, deceased fallen down on the road and sustained serious injuries and succumbed to the injuries during the treatment hours. The claim of Rs.8 lakhs was claimed by the claimant. Before the Tribunal, the Insurance Company has resisted the claim petition by fling written statement Exh.14 and denied the averments made in claim petition. The issues were framed by Tribunal vide Exh.17. Thereafter, before the Tribunal, applicant No.2 filed examination-in-chief of affidavit Exh.24 and examined the witness to prove the accident at Exh.35. Exh.26 ? police complaint of accident and Exh.27 spot panchnama of accident. Exh.28 ? inquest report and Exh.29 ? RC Book of Qualis at Exh.30 ? PM Report of deceased, Exh.33 ? copy of charge-sheet, at Mark-23/7 ? copy of insurance policy and at Mark-23/12 ? income certificate issued by Arpan Corporation. It is necessary to note that no oral evidence was led by Insurance Company and no documentary evidence was produced by the Insurance Company before the Tribunal. The Tribunal has examined the evidence on record and also examined the contention raised by Insurance Company. Therefore, relevant Para 10 is quoted as under :
?S10. The opponent No.3 has taken a contention that deceased was also negligent as he was going on a scooter and therefore, it is a case of contributory negligent and submitted that some apportion of contributory negligency be awarded against the deceased. It is true that witness Bharatkumar Kalidas Patel has filed affidavit on behalf of petitioners at Exh.35. This witness happens to be an eye witness, as he was pillion rider and the offending scooter was going ahead, therefore, he had seen the accident. It is further stated by him that on 12/2/2004, he was going on scooter and after returning from Mahudi, one scooterist was going ahead of im near Pimplaj village. According to him, one car coming from Gandhinagar with full speed on wrong side and it had dashed with the scooter which was going ahead. He has also seen number of Quallis Car and the number of the Car was bearing No.GJ-1-HB-7779. After the accident the driver of the said Car ran away towards Vijapur side and the scooterist fallen down on the road. He has also seen the number of scooter bearing No.GJ-1-DL-4947. Thus, it appears from the affidavit Exh.35 that witness Bharatkumar Kalidas Patel who has narrated the facts of accident on oath was eye witness and who has seen the accident. This witness has been cross-examined by learned advocate Shri A.G. Thakore for the opponent No.3, but no fruitful evidence has been made out from the cross-examination of this witness. Therefore, the contention raised by the learned advocate for the opponent No.3 that some apportion of contributory negligence be awarded against the deceased cannot be considered. In the present case, driver of the vehicle involved in the accident has not given any of the evidence before the Tribunal to explain how the accident had happened. In these circumstances, submission of other side in respect of negligent driving of cycle by deceased is not legal and tenable in eye of law. Looking to the police complaint, panchnama of place of accident, inquest report, charge-sheet, P.M. Report of deceased and affidavit and affidavit of witness Bharatkumar Kalidas Patel, it is proved by the petitioners that the deceased has died due to sole rash and negligent driving on the part of the driver of the vehicle involved in the accident. Hence, I answer issue No.1 in the affirmative.?S
6. The Tribunal has also considered the relevant facts that opponents have not led any of the evidence to controvert the statement of deposition of eye-witness Exh.35. The Tribunal has also considered the police complaint as well as charge-sheet and panchnama. It is necessary to note that such submission was not made by learned advocate of Insurance Company before the Tribunal that scooter was dashed not on right side but on left side. Not only that but also no contention was raised by the Insurance Company before the Tribunal that driver ? opponent No.1 was deleted during the pendency of claim petition after notice has been served. Therefore, in absence of driver, negligent question cannot be examined against the opponent driver. However, this contention was not raised by Insurance Company before the Claims Tribunal. But, it is relevant to note that charge-sheet at Exh.33 was filed against opponent No.1 ? driver of the offending vehicle before Pethapur Police Station, Gandhinagar vide I-CR No.23 of 2004. The relevant discussion is made in Para 9 of the award, therefore, the same is quoted as under :
?S9.
In order to prove accident, petitioner No.2 filed examination chief on affidavit at Exh.24 and retreat the contents of claim petition and deposed that on 12/2/2004 at about 8.00 pm, his father was driving his own scooter bearing No.GJ-1-DL-4947 with moderate speed and on the correct side of the road and coming from Ramnagar to Ahmedabad, on the way of Mahudi to Gandhinagar, as soon as he reached near the patia of village Pimplaj, the opponent No.1 came from opposite direction with Quallis bearing No.GJ-1-HB-7779 with excessive speed in rash and negligent manner without following traffic rules and regulation and dashed the scooter in full force. Due to such dash deceased was fallen down on the road and sustained serious injuries and succumbed to the injuries on the spot. In support of the said contention petitioner has produced police complaint of accident at Exh.26 which is lodged by brother of deceased, place of panchnama at Exh.27 and charge-sheet at Exh.33. The charge of the said offence is filed against the driver of the offending vehicle before Pethapur Police Station, Gandhinagar vide I-CR No.23/2004. In cross-examination of petitioner, it is admitted that petitioner has not seen the accident. It is also admitted that deceased was died during the treatment hours. The opponents have not lead any of the evidence to controvert the statement of deposition. The documentary evidence produced by the petitioner had not seriously challenged by the opponents. The driver of the offending vehicle has not entered into the witness box to explain how the accident had occurred. In absence of adduced evidence in support of the contention taken in the written statement, adverse inference can easily be drawn against the opponents. Looking to the evidence of police complaint and charge sheet of offence in respect of accident against which it is filed, it appears that accident had occurred due to the rash and negligent driving of the vehicle involved in the accident.?S
7. In view of these facts, the Tribunal has examined all the relevant records which are produced by respective parties including the evidence of claimant as well as evidence of independent witness Exh.35. In cross-examination, no doubt was created by Insurance Company against the said witness. Therefore, Tribunal has relied upon the oral evidence of independent eye-witness Exh.35 and looking to the panchnama, a Quallis Car coming from opposite direction on wrong side dashed to the scooter and charge-sheet was filed against opponent No.1, that enough to prove the rash and negligent driving of opponent No.1.
8. Therefore, according to my opinion, it was a duty of opponent No.1 to take more care while driving the vehicle in open road.
9. The Apex Court has considered the question of contributory negligence and also laid down the test when two vehicles are involved in accident in case of Andra Pradesh State Road Transport Corporation and Another v. K. Hemlatha and Others reported in (2008) 6 SCC 767. The relevant Para 11 is therefore quoted as under :
?S11. To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligency and rashly and in case both were so doing who was more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff's fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might himself be hit and he must take into account the possibility of others being careless.?S
10. It is necessary to consider the negligence which has been referred by the Tribunal in Para 6 which is also relevant, therefore, quoted as under :
?S6... Negligence :-
?SNegligence means failure to exercise the required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen to be likely to casual physical injury to person. The degree of care required, of course, depends upon the facts in each case.??
11. In light of the aforesaid view taken by Apex Court and applying the principles to the facts of this case, when deceased was going on the correct side with moderate speed and opponent No.1 was coming from opposite side on wrong side and dashed with scooter. Therefore, scooterist has no opportunity to save the scooter from said accident. Therefore, there was not a slightest evidence on record which suggests the contributory negligence of the scooter driver. In absence of that evidence, the finding of the Tribunal holding respondent No.1 100% liable for rash and negligent driving cannot be found faulty. Therefore, before this Court, learned advocate Mr. Nanavati has raised only aforesaid contention. Except that, no other contention was raised before this Court by learned advocate Mr. Nanavati. Therefore, contention raised by learned advocate Mr. Nanavati cannot be accepted and therefore, rejected. Accordingly, there is no substance in the present appeal. Accordingly, present appeal is dismissed.
12. Registry is directed to transmit immediately Rs.25,000/- which has been deposited by Insurance Company to this Court, if any, to the Claims Tribunal concerned.
13. As the appeal is dismissed by this Court, no order is required to be passed in Civil Application. Accordingly, Civil Application is disposed of.
[H.K. RATHOD, J.] #Dave Top