Gujarat High Court
Reliance General Insurance Company Ltd vs Chandubhai Pethabhai Luhar & 4 on 26 July, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/268/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 268 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RELIANCE GENERAL INSURANCE COMPANY LTD
VADODARA....Appellant(s)
Versus
CHANDUBHAI PETHABHAI LUHAR & 4....Defendant(s)
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Appearance:
MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1
MR MOHSIN M HAKIM, ADVOCATE for the Defendant(s) No. 3.1 - 3.4 , 4 - 5
RULE SERVED for the Defendant(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 26/07/2017
ORAL JUDGMENT
1. Feeling aggrieved by and dissatisfied with the judgment and award dated 19.09.2015 passed by learned Motor Accident Claims Tribunal (Aux.), Vadodara, in Motor Accident Claim Petition No.1673/2009, the appellant -
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Insurance Company preferred present appeal under Section 173 read with Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short);
2. Heard Mr.Vibhuti Nanavati, learned counsel for the appellant and Mr.Mohsin Hakim, learned counsel for respondent Nos.3.1 to 3.4, 4 and 5. Though served, no one appears for respondent Nos.1 and 2.
3. On perusal of the record and proceedings of learned Tribunal, following facts emerge from the record of the appeal:-
3.1 That on 11.11.2009, the deceased Rameshbhai Amarsing Rathva was going on his motorcycle and at about 9:30 P.M, while the deceased was passing through Pavi crossing at Jetpur-Chhota Udepur road, he dashed with the truck bearing registration No.GJ-03-Y-8505, which was stationary due to brake down and rammed into the truck from behind and sustained fatal injuries.
3.2 Record further indicates that the original claimants filed their claim petition before learned Tribunal at Vadodara, which came to be registered as Motor Accident Claim Petition No.1673 of 2009 and claimed Rs.5,00,000/-
under Section 163A of the Motor Vehicles Act with interest at the rate of 9 % per annum.
4. Learned Tribunal vide order dated 19.09.2015 awarded total compensation to the tune of Rs.4,41,500/- with interest at the rate of 18 % per annum from the date of application and proportionate cost and being aggrieved by the same, present appeal is preferred by the Insurance Company.
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5. Learned counsel for the appellant contended as
under:-
5.1 That the learned Tribunal has erred in considering the fact that the deceased to be 100 % negligent, whereas the record clearly establishes the fact that 10 wheeler truck was stationery and the driver of the truck had taken all precautions to give signal to all vehicles and therefore, the deceased himself was negligent and the accident occurred only because of negligence on part of the deceased.
5.2 Learned counsel for the appellant relying upon the provisions of Sections 221 and 222 of the Motor Vehicles Rules, contended that the learned Tribunal has straightway decided the petition without framing any issues and without determination of issues and controversy in the petition and therefore, has submitted that the impugned judgment and award deserves to be quashed and set aside.
6. Per contra, Mr.Mohsin Hakim, learned counsel for the respondents - claimants contended that, though it is true that no issues are framed, the fact remains that accident is of 2009 and the appeal is filed in the year 2016. He further contended that now 8 years have lapsed and the claimants including the minor children are waiting for the claim. Therefore, instead of remanding the matter, this Court may consider the issues of contributory negligence and provide for 10 % contributory negligence on part of the deceased and accordingly, reduce the award by 10 %. He further submits that considering the police papers on record and other evidence on record, this Court may reduce the award by 10 % accordingly.
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7. Learned counsel for the appellant has candidly
submitted that this Court may adopt such course in the interest of justice and in the facts of the case.
No other or further submissions are made by learned counsel for the parties.
8. On perusal of the record and proceedings, it appears that the appellant Insurance Company brought on record the documentary evidence such as copy of FIR, Panchnama of place of occurrence, Inquest Panchnama, P.M.Report and has filed its written statement at Exh:10 and had also taken various contentions. The claimant Kailashben, who is the wife of deceased was examined at Exh:16 and even the police papers have been brought on record along with the death certificate of deceased Rameshbhai Jethva as well as school leaving certificate of the deceased Rameshbhai Jethva.
9. Record further indicates that the Insurance Company has also filed an affidavit below Exh:38 and both the parties have filed their written arguments, which are considered by learned Tribunal before passing the impugned judgment and award. However, the fact remains that the issues were not framed by learned Tribunal. Rule 221 of the Gujarat Motor Vehicles Rules, 1989 provides that after considering any written statement and the result of any examination of the parties, the learned Tribunal shall ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to it to depend and Rule 222 also prescribes for determination of issues.
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10. From the record and proceedings, it clearly appears that no issues are framed and therefore, there is a procedural error, however, considering the submissions made by learned counsel for the parties, it is a matter of fact that the accident has occurred on 11.11.2009 and almost after 8 years have passed and therefore, considering such technical aspect, instead of remanding the matter by quashing and setting aside the impugned judgment and award, as agreed by learned counsel for the parties and considering the manner in which the accident took place and the FIR in particular at Exh:30, panchnama of scene of accident at Exh:31, PM report at Exh:32, it appears that the deceased died on the spot and was taken to the hospital dead and it is also on record that the deceased died due to vehicular accident on receiving fatal injuries.
11. Considering such fact and circumstances arising out of the case and as per the considered submissions made by learned counsel for the parties, this Court is required to determine as to manner in which the accident has taken place, which is evident the record of the case and that to what extent the deceased was also negligent.
12. Upon considering the record and proceedings and on re-appreciation of the evidence on record and as pointed out by learned counsel for the parties, the manner in which the accident took place and also considering the fact that the truck in question was 10 wheeler truck, contributory negligence as far as deceased is concerned, can safely be determined at 10 %.
13. In light of the aforesaid, the claimants would be Page 5 of 6 HC-NIC Page 5 of 6 Created On Mon Aug 21 04:11:07 IST 2017 C/FA/268/2016 JUDGMENT entitled to compensation of Rs.3,97,350/- only. However, rest of the judgment and award would remain unaltered. Thus, the appeal is partly allowed to the aforesaid extent. The learned Tribunal is directed to refund an amount of Rs.44,150/- along with proportionate cost and interest to the Insurance Company forthwith.
14. As far as remaining amount is concerned, the same may be dealt with by the learned Tribunal as per the impugned judgment and award qua the claimants. Record and proceedings be sent back to concerned learned Tribunal forthwith. No order as to costs.
(R.M.CHHAYA, J.) Suchit Page 6 of 6 HC-NIC Page 6 of 6 Created On Mon Aug 21 04:11:07 IST 2017