Gujarat High Court
New India Assurance Co Ltd vs Lalitaben Prakashbhai Charaniya on 21 October, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya, Samir J. Dave
C/FA/2942/2019 JUDGMENT DATED: 21/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2942 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 2942 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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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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NEW INDIA ASSURANCE CO LTD
Versus
LALITABEN PRAKASHBHAI CHARANIYA
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Appearance:
MR AJAY R MEHTA(453) for the Appellant(s) No. 1
MR CHINTAN S POPAT(5004) for the Defendant(s) No. 1,2,3,4
MR VISHAL C MEHTA(6152) for the Defendant(s) No. 5
NOTICE SERVED(4) for the Defendant(s) No. 6
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 21/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) Page 1 of 5 Downloaded on : Sat Oct 23 05:22:01 IST 2021 C/FA/2942/2019 JUDGMENT DATED: 21/10/2021
1. Feeling aggrieved and dissatisfied by the judgment and award dated 08.02.2019 passed by the Motor Accident Claims Tribunal (Aux), Una, in MACP No. 782 of 2012, the appellant insurance company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").
2. The following facts emerge from the record of the present appeal -
2.1 That the accident took place on 28.11.2009 at 7.30 hrs in the evening near village Kothari when the deceased was going on his Discover motorcycle bearing No. GJ-11-HH-4635 from village Anjar towards Una in very low speed following all traffic rules. When the deceased reached at the place of the accident, at that time, a Tractor bearing registration No. GJ-11- M-6436 being driven in rash and negligent manner and in excessive speed dashed with the motorcycle of the deceased, as a result of which he sustained grievous injuries on different parts of his body and was shifted to Mehta Hospital at Una. Thereafter, the deceased was referred to Rajkot for further treatment. However, the deceased died on the way to Rajkot. An FIR came to be lodged with Una Police Station.
2.2 The original claimants preferred claim petition under Section 166 of the Act and claimed compensation of Rs. 42,00,000/- with 18% interest. It was the case of the original claimants that the deceased was Page 2 of 5 Downloaded on : Sat Oct 23 05:22:01 IST 2021 C/FA/2942/2019 JUDGMENT DATED: 21/10/2021 aged 34 years on the date of the accident and was earning Rs. 17,006/- per month by doing the job as a teacher. The parties before the Tribunal relied upon documents such as last pay certificate at exhibit 26, copy of charge-sheet at exhibit 26, complaint at exhibit 28, panchnama at exhibit 29, inquest panchnama at exhibit 30, PM note of the deceased at exhibit 31, driving license of the deceased at exhibit 46, salary certificate at exhibit 47, birth certificate of the deceased at exhibit 48, driving license certificate issued by RTO at exhibit 49, certificate of tractor issued by RTO at exhibit 50 and statement of the complainant at exhibit 51. One of the claimant had deposed vide exhibit 27.
2.3 The Tribunal after appreciating the evidence on record, held the driver of the tractor responsible for the accident and thereby, partly allowed the claim petition and by impugned judgment and award, awarded a sum of Rs. 37,43,345/- with interest at the rate of 9% p.a. from the date of the claim petition till its realisation to the original claimants. Being aggrieved by the same, the present appeal is preferred by the appellant insurance company.
3. Heard Mr. Ajay Mehta, learned advocate for the appellant insurance company, Mr. Chintan Popat, learned advocate for the original claimants and Mr. Vishal Mehta, learned advocate for respondent no.5.
4. Mr. Mehta, learned advocate appearing for the appellant submitted that when the FIR at exhibit 28 Page 3 of 5 Downloaded on : Sat Oct 23 05:22:01 IST 2021 C/FA/2942/2019 JUDGMENT DATED: 21/10/2021 was lodged by the brother of the deceased, no vehicle number or any intimation with regard to the vehicle number was given. According to Mr. Mehta, though there is no eye witness or any evidence before the Tribunal to accept that the tractor bearing registration no. GJ-11-M-6436 was involved in the accident, the appellant has been made liable. According to Mr. Mehta, the said aspect is not at all examined by the Tribunal. On this sole ground, it was contended by Mr. Mehta that the appeal requires consideration as the question of involvement is involved in the present appeal.
5. Per contra, Mr. Popat, learned advocate for the respondents-original claimants has supported the impugned judgment and award. Mr. Popat submitted that even the charge-sheet was brought on record at exhibit 26 and the FIR and panchnama at exhibit 28 and 29 clearly establishes the fact that it was the vehicle bearing registration no. GJ-11-M-6436, the tractor, which was involved in the accident.
6. No other or further submissions have been made.
7. Having perused the original record and proceedings and upon re-appreciation of the evidence in form of panchnama at exhibit 29 and FIR at exhibit 28, in FIR, the number is not mentioned. The same would not be fatal as contended by Mr. Mehta. The very factum that a charge-sheet has been filed before the competent jurisdictional magistrate, the same proves that this is the vehicle which was involved in Page 4 of 5 Downloaded on : Sat Oct 23 05:22:01 IST 2021 C/FA/2942/2019 JUDGMENT DATED: 21/10/2021 the accident. Even upon perusal of the evidence of one of the claimant and more particularly even re- appreciating the cross-examination of one of the claimant, we do not find that the appellant has even remotely tried to prove and convey that the vehicle, i.e., the tractor, is planted. Only because it was orally contended and taken as a defence in the written statement, cannot take place of proof. As stated earlier, the charge-sheet is already filed against the driver of the tractor and therefore, we do not find that the Tribunal has committed any error in coming to the conclusion that the very vehicle was involved in the accident and that the driver of the tractor was solely negligent. As far as the quantum and awarding of compensation under different conventional heads are concerned, the same does not require any modification.
8. Resultantly, the appeal fails and is hereby dismissed. However there shall be no order as to costs.
Civil Application, if any, stands disposed of.
Registry shall transmit the record and proceedings back to the Tribunal forthwith.
(R.M.CHHAYA,J) (SAMIR J. DAVE,J) BIJOY B. PILLAI Page 5 of 5 Downloaded on : Sat Oct 23 05:22:01 IST 2021