United India Insurance Co.Ltd vs Rameshchandra Manishanker Vaidya & 5 on 25 April, 2014

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Gujarat High Court

United India Insurance Co.Ltd vs Rameshchandra Manishanker Vaidya & 5 on 25 April, 2014

1. All these appeals under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") are directed against the common judgment and award dated 11 th July, 2006 passed by the Motor Accident Claims Tribunal (Main), Vadodara (hereinafter referred to as "the Claims Tribunal") in Motor Accident Claim Petitions No.779/1993, 786/1993, 889/1993, 544/1993 and 545/1993 respectively.

2. The facts of the cases stated briefly are that a vehicular accident took place on 30 th November, 1992 wherein some of the persons travelling sustained fatal injuries and others sustained grievous injuries. In connection with the said accident, several claim petitions came to be filed before the Claims Tribunal wherein it was stated that on 30th November, 1992 at 8 o'clock in the morning deceased Ashokbhai and his family members had set off from Maninagar at Ahmedabad to go to Navsari in a Jeep. Other members of the family were coming behind their Jeep in an Ambassador. They had stopped at Vasad for snacks and had proceeded towards Navsari. Deceased Ashokbhai was driving the Jeep and he was driving very carefully and in moderate speed in a safe manner. When they had crossed Karjan and were proceeding towards Palej, at that time their Jeep was passing on the National Highway No.8 at a distance of about one kilometre towards the north of Lakoda village. The said road was a four track road and the Jeep was going on the left side of the road when the original opponent No.1 - driver of truck bearing No.M.W.D.-1525, who was driving the truck in a rash and negligent manner, was coming from the direction of Bharuch. The opponent No.1 was driving the truck on the western track, however, as further down the road on the western side road repairing work was Page 2 of 10 C/FA/5625/2008 JUDGMENT going on and on the eastern side, the opponent for taking the truck on the eastern side towards their track road come between the two track road and in a rash and negligent manner took a turn in the passage due to which he lost control over the steering of the truck and the truck came towards their Jeep and before their driver could understand anything, the truck forcefully collided with the Jeep and came down about 50 to 60 feet on the gutter on the eastern side of the road and dashed against a tree and halted as a result whereof the front part of their Jeep was totally destroyed and the driver of the Jeep and other persons sustained serious injuries. It was alleged that the said accident had taken place on account of the negligence on the part of the driver of the truck and that there was no fault on the part of the driver of the Jeep. In relation to the accident, a first information report came to be registered vide Karjan Police Station I-C.R. No.377/1992 against the driver of the truck.

3. The Tribunal after appreciating the evidence on record, on the question of liability, found that the driver of the jeep was negligent to the extent of 25% and accordingly saddled the appellant - insurance company with the liability to pay 25% of the awarded amount to all the claimants including the driver of the jeep. Being aggrieved, the insurance company is in appeal to the extent the Tribunal has held the driver of the jeep to be negligent in causing the accident.

4. Mr. Maulik Shelat, learned advocate appearing on behalf of the appellant in all the appeals, invited the attention of the court to the first information report to submit that the same has been lodged against the truck driver and the same Page 3 of 10 C/FA/5625/2008 JUDGMENT suggests that the driver of the truck was solely responsible for the causation of the accident. Under the circumstances, the Tribunal was not justified in holding the driver of the jeep to be negligent to the extent of 25%. It was submitted that eye- witnesses have deposed to the effect that the accident had taken place on account of negligence on the part of the truck driver and no allegation has been made against the driver of the jeep, either in the claim petitions or in the evidence of the claimants, which makes it amply clear that the driver of the truck was solely responsible for causing the accident. Moreover, the truck driver had remained absent in the proceedings before the Tribunal and hence an adverse inference is required to be drawn against him. It was submitted that the Tribunal has failed to consider that due to repairing works of the Highway, the truck came from the wrong side and dashed against the jeep on the side of the driver.

4.1 Next, it was submitted that if the court comes to the conclusion that the finding recorded by the Tribunal is just and proper, even then, the Tribunal was not justified in holding the appellant liable for payment of 25% of compensation in respect of the driver of the jeep, inasmuch as, the insurance policy does not cover the driver of the jeep, except the paid driver. Reference was made to the deposition of Rameshchandra Manishankar Vaidya, father of deceased Ashokbhai (the driver of the jeep) to submit that even according to him, his son was working as a driver with one Nabikhan Pathan and that it was no one's case that the deceased was employed as a driver of the offending jeep. It was submitted that the insurance policy covers only the paid driver and hence, the deceased not being a paid driver, would Page 4 of 10 C/FA/5625/2008 JUDGMENT not be covered by the insurance policy and therefore, to that extent, the award is required to be set aside. It was, accordingly, urged that on an overall consideration of the evidence on record, the finding recorded by the Tribunal that the driver of the jeep is negligent to the extent of 25% is perverse and hence, the appeal deserves to be allowed. In support of his submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of T.O. Anthony v. Karvarnan and Others, 2008 ACJ 1165, and more particularly, paragraph 6 thereof, wherein it has been held that where the insured is guilty of some negligence, his claim for damages is not defeated merely by reason of negligence on his part but the damages recovered by him in respect of the injuries stand reduced in proportion to his contributory negligence.

5. On the other hand, Mr. Sunil Parikh, learned advocate for the respondent No.5 - insurance company submitted that the sole challenge in these appeals is to the extent the Tribunal has attributed 25% negligence to the driver of the jeep. It was submitted that such finding of the Tribunal is a finding of fact, arrived at, after appreciating the evidence on record and that on the evidence on record, it cannot be said that the view adopted by the Tribunal is not a reasonable view. Under the circumstances, in the absence of any perversity in the findings recorded by the Tribunal, there is no warrant for interference by this court.

6. Mr. Kishor Prajapati, learned advocate for Mr. Mehul Rathod, learned advocate for the claimants in all the appeals opposed the appeals and reiterated the submissions advanced Page 5 of 10 C/FA/5625/2008 JUDGMENT by the learned advocate for the respondent No.5 - insurance company. It was submitted that the Tribunal has rightly held the appellant - insurance company liable to pay compensation to the extent of 25% to the deceased driver also.

7. This court has considered the submissions advanced by the learned advocates for the respective parties and has perused the record and proceedings of the case. As can be seen from the impugned award, on the question of negligence, the Tribunal has taken note of the first information report as well as the panchnama of the scene of incident, which reveal that the jeep driver was driving the jeep on the proper side and the driver of the truck had crossed the road and was taking a turn. The Tribunal has taken note of the fact that the father of the deceased was travelling in an Ambassador behind the jeep. From the deposition of Akshaybhai Mehta, it appears that the deceased was driving the jeep properly. Near Lakodara, there was a four-track road and a truck came from the opposite side. Since the road was being repaired on the track on which the truck was going, the truck came towards track on which the jeep was going. The Tribunal observed that from the aforesaid, it is revealed that the work of repairing the road was going on, which the driver of the jeep was aware of. As is evident from the panchnama of the scene of accident, the driver of the truck had applied brakes. The panchnama also revealed brake marks of the truck as well as of the jeep and thereafter, both the jeep and the truck fell into a ditch and the jeep dashed against a tree and halted. From the overall evidence which has come on record, it is apparent that the driver of the jeep was driving the same on National Highway No.8 and, therefore, must be driving the Page 6 of 10 C/FA/5625/2008 JUDGMENT same with speed. It is an admitted fact that the jeep was being driven on the correct side. On behalf of the respondent No.5 - insurance company, it was contended that since the track on which the truck was being plied was under repairs, the driver was taking the truck on the other side. It was pointed out that there were eleven persons sitting on the jeep on account of which the driver had lost balance. The Tribunal observed that the panchnama reveals that both the vehicles were not at the spot where the accident took place. However, from the extent of damage, it is clear that the accident had taken place on account of negligence on the part of both the vehicles. The Tribunal took into consideration the decisions of the Gujarat High Court wherein it has been held that where there are two vehicles, it is the larger vehicle which pushes the smaller vehicle; the fact that the truck had collided with the jeep due to which the jeep had turned turtle; the Tribunal examined the panchnama of the scene of incident in detail and came to the conclusion that though the driver of the jeep was driving the same on the correct side, the truck had come from the opposite side because the road on the side of the truck was closed, which reveals that the driver of the jeep was negligent to the extent of 25% and the driver of the truck was negligent to the extent of 75%. This conclusion has been arrived at by the Tribunal mainly on the ground that the truck is the heavier vehicle. Having regard to the fact that the driver of the jeep had applied the brakes after seeing the truck, the Tribunal has assessed the liability of the jeep driver to a lesser extent.

8. On a perusal of the panchnama of the scene of incident, the first information report and the deposition of the witnesses, the court is of the view that on the evidence on Page 7 of 10 C/FA/5625/2008 JUDGMENT record, it is not possible to state that the findings recorded by the Tribunal are in any manner perverse to the evidence on record or are not reasonable. The Tribunal has duly appreciated the evidence on record and has given cogent, convincing and sufficient reasons in support of its findings. On the evidence on record, it cannot be said that the view taken by the Tribunal was not a plausible view. Under the circumstances, in absence of any perversity being pointed out in the findings recorded by the Tribunal, there is no warrant for interference.

9. However, insofar as the claimant in Claim Case No.779/1993 which is relatable to First Appeal No.5625/2008 is concerned, the deceased Ashokbhai was the driver of the offending jeep. A perusal of the insurance policy reveals that the same covers a paid driver. From the deposition of Rameshchandra Manishankar Vaidya, the father of the deceased (Exh.24), it is clear that the deceased was working as a driver with one Nabikhan Pathan at Gandevi. Nabikhan Pathan has also been examined at Exhibit 61 and he has deposed to the effect that he had employed the deceased as a driver and at the relevant time, he had an Ambassador taxi bearing No.G.Q.O.9086. In the present case, the offending vehicle is a jeep bearing No.GJ 5-A-8058 and the owner of the said vehicle is one Pestonji J. Kodia, as is apparent on a plain reading of the insurance policy. Besides, from the evidence on record, it is apparent that the deceased and his father were travelling in different vehicles namely, an Ambassador and a jeep along with other family members. Evidently, therefore, the deceased was not a paid driver in relation to the offending jeep. Under the circumstances, since the insurance policy does Page 8 of 10 C/FA/5625/2008 JUDGMENT not cover a driver other than a paid driver, the Tribunal was not justified in holding the appellant - insurance company liable to pay the compensation to the extent of 25% in Claim Case No.779/1993. The finding recorded by the Tribunal that the deceased was a driver of the vehicle and, therefore, covered by the policy is, on the face of it, contrary to the evidence on record, inasmuch as, the insurance policy clearly states that it is the paid driver who is covered by the policy and the evidence on record clearly shows that the deceased was not a paid driver. To that extent, First Appeal No.5625/2008 is required to be allowed.

10. For the foregoing reasons, First Appeals No.5626/2008 to 5629/2008 are hereby dismissed. First Appeal No.5625/2008 is hereby allowed to the extent the Tribunal has held the appellant liable to pay 25% of the awarded amount to the claimants. The impugned judgment and award dated 11 th July, 2006 passed by the Tribunal in Motor Accident Claim Petition No.779/1993 to the extent the same holds the owner and the appellant - insurance company of the jeep liable to pay 25% of the awarded amount is hereby quashed and set aside. The claimants would be entitled to only 75% of the awarded amount in the light of the fact that the Tribunal has held the deceased to be negligent to the extent of 25%. There shall be no order as to costs.

11. Mr. Maulik Shelat, learned advocate states that the appellant has deposited Rs.73,500/- with costs and interest with the Tribunal towards its liability under the impugned award. Such amount shall forthwith be refunded to the appellant together with the interest accrued thereon.

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C/FA/5625/2008 JUDGMENT

12. The Registry shall forthwith send back the record and proceedings of the case.

( Harsha Devani, J. ) hki Page 10 of 10

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Gujarat High Court