Gujarat High Court
New India Assurance Company Ltd vs Rupalben Lalbhai Sohala on 12 July, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/FA/3695/2021 ORDER DATED: 12/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3695 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 3695 of 2021
With
R/FIRST APPEAL NO. 3696 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 3696 of 2021
With
R/FIRST APPEAL NO. 3697 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 3697 of 2021
With
R/FIRST APPEAL NO. 3699 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 3699 of 2021
With
R/FIRST APPEAL NO. 3702 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 3702 of 2021
With
R/FIRST APPEAL NO. 3704 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 3704 of 2021
With
R/FIRST APPEAL NO. 3705 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 3705 of 2021
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NEW INDIA ASSURANCE COMPANY LTD
Versus
RUPALBEN LALBHAI SOHALA
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 6
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4
Page 1 of 17
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C/FA/3695/2021 ORDER DATED: 12/07/2022
NOTICE SERVED for the Defendant(s) No. 5,6,7
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/07/2022
COMMON ORAL ORDER
1. Mr. MauliK J. Shelat, learned advocate appearing for the appellant-Insurance Company submits that the insurance company arrayed as opponent No.4 in all Motor Accident Claim Petitions being M.A.C.P. Nos. 510 of 2015, 511 of 2015, 525 of 2015, 526 of 2015, 527 of 2015, 528 of 2015 and 529 of 2015 challenges the judgment and award dated 30.06.2021 passed by the Motor Accident Claims Tribunal (Special), Rajkot.
2. Mr. Maulik Shelat, learned advocate for the Insurance Company submits that the tribunal has materially erred in overlooking the pleadings and evidence by directing the appellant to pay the compensation. Learned advocate Mr. Shelat submits that the tribunal has materially erred in holding the insured driver of truck 20% negligent for causing the accident by overlooking to the fact that the truck was no where near the place of accident. Learned advocate Mr.Shelat further submits that, according to the facts of the accident, it is an admitted fact that the ECO car driver had lost control over his vehicle, jumped the divider and went on his wrong side then dashed with insured truck which itself shows that there is no negligence on the part of the driver of the truck in causing the accident.
2.1 Learned advocate Mr. Shelat further submits that the tribunal has not properly appreciated the FIR and the Page 2 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 panchnama relied upon by claimants which has not been disputed by the opponents. It is submitted that, as per the FIR and the panchnama, the truck driver had tried to avoid the accident after seeing the car coming towards to it from wrong side and the truck driver had tried to put the truck on the kachcha road, still the car dashed at driver side of truck. Mr. Shelat, learned advocate further submits that the facts has not been properly appreciated in accordance with the law laid down by the higher courts.
3. Countering the same, learned advocate Mr. Rushang Mehta, learned advocate for Mr. Dakshesh Mehta, learned advocate for the respondents has submitted that the tribunal had considered all the disputes at the relevant time; the concept of negligence has also been examined and thus states that there is no requirement of any interference of the order so passed by the tribunal.
4. The tribunal after hearing the parties has concluded the issue of negligence in para 22 which reads as under:
"This Tribunal has gone through the rival submissions advanced by Ld. Advs. for the respective parties and taken into consideration the F.I.R. and charge-sheet and other police papers and case laws relied upon by the Ld. Adv. for the respective parties. The F.I.R. (Exh.68) with regard to the accident in question has been filed by one Jalabhai Vajubhai Jograna, who is the eye witness of the accident against the driver of Eco Car No. GJ-03FK- 4690 and after due investigation the Final Report Exh.80 Page 3 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 also filed against the driver of said Eco Car. Further, the panchnama of place of accident is produced at Exh.
69. From the perusal of the said panchnama it appears that, the driver of the said car was driving his vehicle at the edge (sic) of divider in a rash and negligent manner and the driver side wheel of the said car touched the edge of divider and burst because of which, the driver had lost his control over the steering and the car jumped the divider and went on the wrong side of the road proceeds from Rajkot to Ahmedabad side and dashed with truck. It has been also mentioned in the panchnama that, with a view to save the accident with car, the driver of truck has turned his steering and took the truck down the road, even though, the car driver dashed with cabin of truck on driver side". Here, it is pertinent to note that, from the contents of panchnama it appears that; at the time of drawing the panchnama the complainant who has lodged the F.I.R. with regard to the accident in question, namely Jalabhai Vajubhai Jograna was present at the spot of panchnama/accident and in presence of two independent the panchnama was drawn. Further, it also reveals from the said panchnama that, the place of accident was also shown by the said complainant Jalabhai Vajubhai Jograna, and the facts of accident narrated in the panchnama are also mentioned as per the say of the complainant i.e. Jalabhai Vajubhai Jograna. Moreover, as the road on which accident is National Highway and therefore, with a view to avoid traffic problem the vehicles were shifted to police station. Thus, from the conjoint reading Page 4 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 of F.I.R., coupled with Final Report and Panchnama as well as P.M. Report and injury certificates, it appears that, on dtd. 07/03/2015, an accident taken place between Eco Car and Truck on Kuvadva Highway Road and in the said accident Lalbhai Jinabhai Sohala, Lalbhai Dhulabhai Sohala, Sanjaybhai Jagdishbhai Mori, Becharbhai Bijalbhai Mograna and Merambhai Hajabhai Chauhan died, while Varjangbhai Ghanabhai Chauhan and Rupabhai Popatbhai Jograna had sustained injuries. Further, this Tribunal has gone through the deposition of claimants of respective claim petition and from their deposition it appears that, none of them have said that there was any negligence on the part of Eco Car driver, but, at the same time all the witnesses in their chief-examination stated that; there was head on collision between the vehicles. Further, the eye witness of the accident namely Varjangbhai Dhanabhai Chauhan & Rupabhai Popatbhai Jograna have stated during course of their cross-examination from Opp. No.2- Ins. Co. side that, there was no negligence on the part of Eco Car driver. But, at the same time, it has come on record from the cross- examination from the Opp. No.4-Ins. Co. side that, the road on which accident taken place, there was a divider on road and the Truck was coming from Rajkot side and the Eco-Car was going towards Rajkot side. No doubt, the complaint with regard to the accident in question has been lodged by one Jalabhai Vajubhai Jograna, against the driver of Eco Car. But, considering the documentary evidence placed on record as well Page 5 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 as evidence produced by the respective claimants of respective claim petition, this Tribunal is opined view that, merely because the F.I.R. and charge sheet are filed against the driver of Eco Car No. GJ-03FK-4690, it cannot be concluded that the driver of Eco Car No. GJ- 03FK-4690 was solely rash and negligent for the occurrence of accident. Because, the Opp. No. 4 -Ins. Co. has not examined the driver of Truck to prove the sole negligence on the part of Eco Car driver. Further more, the Opp. No.4 Ins. Co. has also not examined the I.O., who has concluded the investigation with regard to the accident. As discussed earlier, there was a head on collision between the Eco Car and Truck. Of course, as per the complaint, it comes on the record that the tyre of the Eco Car was burst and resultantly, the driver lost control over the steering, and the car went on the wrong side of the road by crossing the divider and dashed with the truck. But, there was no tyre marks shown in panchnama on the road on which the truck was proceeded. Hence, this Tribunal is of the view that, it is expected from prudent drivers that they should drive their vehicle/s in a manner and speed, so that in a emergency circumstances they can control their vehicle/s by applying brakes. Had, the driver of Eco Car No. GJ-03FK-4690 and driver of Truck No. GJ-13U-9589 taken proper care and caution while driving their respective vehicle, the accident could have been avoided, but they both failed to do so. Therefore, considering over all aspect of the case, evidence produced by the respective parties, deposition of claimants and documentary evidence produced in Page 6 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 shape of F.I.R., Panchanama, charge-sheet, this Tribunal comes to the conclusion that; this is a case of contributory negligence on the part of driver of both the vehicles. Hence, looking to the facts of accident and documentary evidence produced on record this Tribunal holds that; the driver of Eco Car No. GJ-03FK-4690 was negligent to the extent of 80% and the driver of Truck No. GJ-13U-9589 was negligent to the extent of 20% for occurrence of accident. Therefore issues no.1 is decided accordingly."
5. Reference is also made to the facts of the case referred to by the Division Bench of this Court in the case of New India Assurance Co. Ltd. v. Giraben Dilipbhai Patel and others reported in 2017(1) GLR 463, to conclude that any vehicle comes from opposite direction and all of a sudden jumps/crosses the road divider and dashes the vehicle which is going on its path in the opposite direction then there could not be any contributory negligence of those driver who are on the otherside of the road.
6. Mr. Shelat, learned advocate submits that the Division Bench held that the principle of composite negligence would only get attributed when the driver of both the vehicles involved in the accident are found negligent, and submits that similar facts were noticed, where the Division Bench concluded that the truck driver was not negligent to attract the principle of composite negligence. Learned advocate Mr.Shelat submits that the said principle is required to be adopted in the present case and the insurance company - opponent No.4 i.e. present appellant be exonerated. It is contended that 20% each of the Page 7 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 liability has been wrongly fixed by the tribunal concerned on the driver of the truck bearing registration No. GJ-13U-9589 which is required to be absolved.
7. In the case of Giraben Dilipbhai Patel and others (supra), the facts of the case suggest that the vehicular accident was between the truck and the Maruti Car, and during the accident, the driver and the passengers of the Maruti Car died, and one of the passenger sustained serious injuries. The facts suggest that, about midnight, the deceased driver alongwith occupants were proceeding in a vehicle Maruti Zen Car from Vadodara on the Ahmedabad-Vadodara National Highway No.8, and when the said car reached near Nandesary cross-roads, opposite to Gopi Hotel, on the National Highway No.8, it was contended that the driver of vehicle truck came in rash and negligent manner, with an excessive speed and dashed with front portion of his vehicle with the rear side of said car. After appreciating the facts on record for the FIR, the Division Bench has observed in para 6.2 as under:
"In the FIR given by one Shri Kamleshbhai Himmatlal Thakker (Exh.52) which has been specifically stated that Maruti Car was coming from the Vadodara and proceeding towards Ahmedabad and that all of sudden it jumped / crossed the road divider and came in front of the truck. As observed herein above, the FIR has been relied upon by the claimants themselves and the same has been produced by them. As observed by the Division Bench of this Court in the case of New India Assurance Co. Ltd vs. Jaysukhlal Maganlal Doshi & Ors reported in 2013(3) GLR 2283 if the FIR is relied Page 8 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 upon by the claimants themselves, the contents of the FIR cannot be ignored."
7.1 Thereafter, on appreciation of the evidence, the Division Bench came to the conclusion in para 6.5 which reads as under:
"On appreciation of entire evidence on record, we are of the opinion that Maruti Car was coming from the Vadodara and proceeding towards Ahmedabad i.e. opposite side of the truck and that the truck was coming from Ahmedabad proceeding towards Vadodara and that the Maruti Car all of sudden jumped and crossed the road divider and all of sudden it came in front of the truck, due to which, the accident had taken place. It is required to be noted that at the time of accident it was midnight. Considering the aforesaid facts and circumstances, when all of sudden the Maruti Car which was coming from opposite side jumped and crossed the road divider and came in front of the truck and thereafter when the truck dashed with the Maruti Car, the driver of the Truck cannot be said to be responsible and / or liable for the accident at all. The driver of the truck cannot be held negligent for the accident in question and therefore, the learned Tribunal has materially erred in holding the driver of the truck contributory negligent to the extent of 85%. In the facts and circumstances of the case, driver of the Maruti Car can said to be sole negligent for the accident. Under the circumstances, the appellant Insurance Company Page 9 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 cannot be held liable to pay the compensation."
7.2 It was held by Division Bench that the concept of composite negligence would be applicable only in a case where there is negligence on the part of two or more persons and injury/death is the result of negligence on the part of two or more wrong-doers. However, in a case where a person who is not held negligent at all, he cannot be said to be wrong-doers, in that case, the principle of composite negligence would not be applicable. The Court was of the opinion that only in a case where there is negligence (whatever may be percentage) on the part of two or more persons and/or where a person is injured as a result of negligence on the part of two or more wrong-doers, in such case, each wrong-doer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them, and in such a case, the injured need not establish the extent of responsibility of each wrong-doer separately. The Division Bench held and observed that the driver of the truck cannot be said to be negligent at all, and therefore, as such he cannot be said to be wrong-doer and/or tort-feasor, and therefore, the question with respect to composite negligence shall not arise, and therefore, the claimants cannot recover any amount of compensation from the appellant being insurer/assurance company of the truck.
8. Referring to the aforesaid observations and the proposition of law as laid down by the Division Bench of this Court in the aforesaid case, the present matter is also under similar kind of facts where the truck was on the otherside of the road. The tribunal referring to the panchnama of the place Page 10 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 of accident produced at Exh.69 has observed that, as per the panchnama, the driver of the car was driving his vehicle at the edge of the divider in a rash and negligent manner and the driver side wheel of the said car touched the edge of divider and burst because of which the driver had lost his control over the steering and the car jumped the divider and went on the wrong side of the road proceeds from Rajkot to Ahmedabad side and dashed with truck. This fact itself suggest that the truck was on its own way and was going on its own side and the truck driver as such was not required to be mindful of the vehicle on the otherside of the road which is going in opposite direction when more specifically when the road is having the dividers. The Apex Court in the case of Pramodkumar Rasikbhai Jhaveri vs Karmasey Kunvargi Tak & Others reported in 2002 SC 2864 described the meaning of "negligence" and "contributory negligence". The Apex Court has made the relevant observations in paras 7, 8, 9, 10 which is reproduced hereunder:
"7. The High Court found that there was contributory negligence on the part of the appellant for two reasons. Firstly, the appellant who was driving the car did not slow down his vehicle when he saw that the truck coming at a high speed from the opposite direction was trying to overtake another car ahead of the truck and, secondly, the High Court found that there was a three feet width of the road on the left side of the car of the appellant and on seeing the oncoming truck, the appellant could have swerved his vehicle to the left side.
8. We do not think that these two reasons given by the High Court fully justify the accepted principles of Page 11 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 contributory negligence. The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence.' Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence"
it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong.
9. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of reasonable man is as relevant in the case of plaintiff's contributory negligence as in the case of defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley Vs. Austrust Ltd. (1999) 73 ALJR 403 is worthy of quoting:
"A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether Page 12 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."
10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling Vs. Cooper [1931] A.C. 1 at page 9, Lord Hailsham said:
"Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances."Page 13 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022
C/FA/3695/2021 ORDER DATED: 12/07/2022
9. Here in the present case the truck driver was not under duty to protect the car which was on the otherside of the road. However, in the FIR of the matter at Exh.68, it has been noted that the truck driver had after seeing the car approaching towards the driver side, he had tried to avoid the accident with his truck by trying to pull down the truck on the kachcha road, and in fact, he took the vehicle on the kachcha road, still, however, the car having jumped the divider and went on the wrong side of the road which proceeds from Rajkot to Ahmedabad side and dashed with truck. Thus taking into consideration the meaning of "negligence" and "contributory negligence" and legal duty to take care, the observation of the tribunal of the truck driver bearing No. GJ-13-U-9589 was required to take proper care and caution while driving his vehicle to have avoided the accident would not be in consonance to the facts of the case and to the extent of duty of care and caution to be exerted; thus attributing 20% negligence on the truck driver is required to be set aside, since the driver of the truck is not found to be wrong-doer or a tort- feasor, and therefore, the claimants cannot make any claim of compensation from against the truck driver or the owner of the truck or even the insurance company of the truck.
10. In view of the observations so made, the observation of the tribunal below issue No.1 in all the matters considering 20% negligence of truck bearing registration No. GJ-13-U-9589 stands quashed and set aside. The driver of ECO Car bearing No. GJ-03-FK-4690 is considered as 100% negligent for the accident.
11. In the result, the appellant - insurance company is Page 14 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 exonerated in the matter. It is submitted that 80% money has been deposited by the Insurance Company of the car i.e Royal Sundaram Insurance Company Limited, so now 20% amount be deposited by the insurance company before the concerned tribunal within the period of 8 weeks of this order.
12. The claim of the claimants of respective claim petitions are allowed to the below extent, against the Insurance Company Royal Sundaram.
Claim Petition Amount 1. M.A.C.P No.510/2015 Rs.17,27,106/- 2. M.A.C.P No.511/2015 Rs.17,67,106/- 3. M.A.C.P No.525/2015 Rs.14,71,740/- 4. M.A.C.P No.526/2015 Rs.14,35,000/- 5. M.A.C.P No.527/2015 Rs. 2,10,426/- 6. M.A.C.P No.528/2015 Rs.17,16,688/-
13. Mr. Shelat, learned advocate submits that, in compliance of the order of this Court, the insurance company of the truck i.e. present appellant had deposited 20% money before the tribunal concerned.
14. In view of the observations made hereinabove and since the appellant-Insurance Company has been exonerated from the matter, they become entitled to receive back 20% money deposited alongwith interest and costs if any. The tribunal thus is directed to refund back amount to the appellant- insurance company in this regard.
15. It is also made clear that on deposit of the money by the Page 15 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022 C/FA/3695/2021 ORDER DATED: 12/07/2022 insurance company - Royal Sundaram Insurance Co. Ltd., the said amount be disbursed to the claimants in accordance with the ratio laid down in the final award.
16. Mr. Rushang Mehta, learned advocate submitted that, in MACP No. 529 of 2015, the issue which would require consideration is the entitlement of the money; and thus submitted that, the insurance company of the car would not be liable to pay any compensation to the claimants since the driver was not paid driver.
17. While countering the same, learned advocate Mr. Hemal Shah has relied upon the decision in the case of Valiben Laxmanbhai Thakore (Koli) Wd/O Late Laxmanbhai Ramsingbhai Thakore (Koli) v. KANDLA DOCK LABOUR BOARD reported in 2022(1) GLR 440 and submits that the issue had already been decided by the Larger Bench under reference.
18. Considering the submissions, since the insurance company of the car has not been joined in MACP No. 529 of 2015, the claimants are permitted to join them in view of the judgment passed, exonerating the insurance company of the truck. The claimants would be permitted to join the insurance company of the car so that all the parties would get an opportunity to adduce the evidence and the issue so raised by learned advocate Mr.Mehta would resolve during the process. Let the said exercise be completed by the tribunal within the period of six months. Hence the matter stands remanded with the liberty granted.Page 16 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022
C/FA/3695/2021 ORDER DATED: 12/07/2022
19. With the aforesaid observations and directions, the captioned First Appeals as well as civil applications are accordingly disposed of with no order as to costs.
(GITA GOPI,J) A.M.A. SAIYED Page 17 of 17 Downloaded on : Mon Jul 25 00:05:02 IST 2022