Gujarat High Court
Oriental Insruance Company Ltd vs Legal Heirs Of Decd. Karshanbhai ... on 1 August, 2024
NEUTRAL CITATION
C/FA/4698/2018 ORDER DATED: 01/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4698 of 2018
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
NO. 1 of 2019
In R/FIRST APPEAL NO. 4698 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2017
In R/FIRST APPEAL NO. 4698 of 2018
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ORIENTAL INSRUANCE COMPANY LTD
Versus
LEGAL HEIRS OF DECD. KARSHANBHAI JESANBHAI PATEL (BHATOL) &
ORS.
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Appearance:
MR HARDIK P MEHTA(6943) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR VILAV K BHATIA(5338) for the Defendant(s) No. 1.1,1.2,1.3
MR VISHAL C MEHTA(6152) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/08/2024
ORAL ORDER
1. The present appeal is filed by the appellant - Insurance Company under Section 173 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the judgment and award dated 21.3.2017 passed by the Motor Accident Claims Tribunal, Banaskantha in Motor Accident Claim Petition No.712 of 1990, by which, the Tribunal has partly allowed the claim petition by awarding Rs.5,70,000/- with 9% p.a. interest to be paid to claimant/s, by holding opponent nos.1 and 2 liable, jointly and severally.
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2. The facts of the present appeal are as under :
2.1 The injured himself filed the claim petition at the first instance, however, as he died during the pendency of the petition, his heirs have been ordered to be brought on record.
It is stated that on 22.6.1990 at about 5.00 p.m., the deceased, after completion of his work from Diamond Factory was going to Malana by sitting on a motorcycle no.GAE.5718 of the ownership of opponent no.3; when the said motorcycle was passing from Nansarovar road, Delhi Darwaja area of Palanpur at the relevant point of time, one rickshaw no.GJ.8T.225 being driven by its driver in rash and negligent manner dashed with the motorcycle from back side and because of the said collusion, the deceased fell down due to which he sustained grievous injuries and he died during the treatment. Therefore, the claim petition is filed for compensation.
2.2 The notices were served to the opponents. All the opponents filed the written statement. The opponent nos.1 and 2 are the driver/owner of the rickshaw and insurance company of the rickshaw and opponent no.3 is the owner of the motorcycle on which the deceased was riding as pillion rider. The issues were framed by the Tribunal. Oral as well Page 2 of 7 Downloaded on : Fri Aug 02 23:57:53 IST 2024 NEUTRAL CITATION C/FA/4698/2018 ORDER DATED: 01/08/2024 undefined as documentary evidence were led before the Tribunal. After hearing the submissions made by the rival parties, the Tribunal has partly allowed the claim petition(s) and awarded compensation as noted above by holding the opponent nos.1 and 2 liable and dismissed the claim petition qua opponent no.3.
2.3 Hence, the insurance company of the rickshaw has filed the present appeal before this Court.
3. Learned advocate for the appellant - Insurance Company has mainly assailed the impugned judgment and award on two grounds; one that the driver of the motorcycle- opponent no.3 was negligent for the accident and therefore the deceased who was riding as a pillion rider on the said motorcycle is not entitled for any claim due to the unlawful act of the driver and owner of the motorcycle; and secondly that the deceased was discharged from hospital in September, 1990 and he died subsequently in August 1991 and therefore, there was no proximity between the injuries sustained due to the accident dated 22.6.1990 and the death of the deceased. He, therefore, submitted that on these two grounds, the impugned judgment and award is required to be modified and the appellant-insurance company is not liable to pay the compensation. He, therefore, prayed to allow this appeal. Page 3 of 7 Downloaded on : Fri Aug 02 23:57:53 IST 2024
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4. Per Contra, learned advocate for the claimants have submitted that the deceased was riding as a pillion rider on the motorcycle and the rickshaw came and dashed from behind and the deceased fell down and suffered serious injuries due to which he died for no fault. He submitted that the learned Tribunal has rightly considered the evidence led before it and passed the impugned judgment and award which is just and proper. He, therefore, prayed to dismiss this appeal.
5. Learned advocate for respondent no.3-owner of the motorcycle has submitted that he was examined before the learned Tribunal wherein he has categorically stated that he was riding the motorcycle and the deceased was sitting on the motorcycle as pillion rider and one rickshaw came from back side in fast speed and dashed with the motorcycle and therefore, the learned Tribunal has rightly held the driver of the rickshaw driver negligent for the accident and rightly dismissed the claim petition qua the owner of the motorcycle as he was not at all negligent for the accident. He, therefore, submitted that there is no need to interfere with the impugned judgment and award and therefore, prayed to dismiss this appeal.
6. I have considered the submissions made by the Page 4 of 7 Downloaded on : Fri Aug 02 23:57:53 IST 2024 NEUTRAL CITATION C/FA/4698/2018 ORDER DATED: 01/08/2024 undefined respective parties. I have perused the record and proceedings. I have gone through the impugned judgment and award passed by the Tribunal. I have also considered the pleadings of the parties before the Tribunal.
7. From the complaint and panchanama and other evidence produced on the record and in absence of examination of the driver of the rickshaw to support the say that the accident occurred due to the negligence on the part of the motorcyclist, there is no reason to disbelieve that the driver of the rickshaw was not negligent for the accident, more particularly, when the owner and driver of the motorcycle deposed and submitted that he was riding the motorcycle and the rickshaw came from behind and dashed with the motorcycle. Further, the chargesheet is filed against the driver of the rickshaw and the criminal case is also initiated against him and therefore it is proved that the driver of the rickshaw was rash and negligent in driving the rickshaw and liable for the accident. The finding of the learned Tribunal is just and proper on this point.
8. On the second point of the nexus between the accident and the death of the deceased, the judgment of the criminal case shows that in the vehicular accident, the deceased sustained grievous injuries and the deceased got Page 5 of 7 Downloaded on : Fri Aug 02 23:57:53 IST 2024 NEUTRAL CITATION C/FA/4698/2018 ORDER DATED: 01/08/2024 undefined treatment in civil hospital, Ahmedabad and the death certificate, MLC certificate, discharge card, prescriptions and medical bills, medical reports describe the injuries sustained by the deceased from which it is revealed that he got paralysis because of the injuries. The medical officer of the civil hospital, Ahmedabad was examined wherein it is stated that the deceased had sustained injuries on his neck and because of that, he got paralysis in both the legs and hands and he was bed-ridden and that because of the said injuries, death can be happened. This shows that the deceased suffered paralysis due to the injuries occurred in the accident which was not cured till his death and ultimately he died. Therefore, though there is a gap between the date of accident and date of death, the deceased was under continuous treatment for the time and unfortunately, he succumbed to the said injuries. Therefore, it cannot be said that there is no proximity between the accident and death. The finding of the learned Tribunal on this point is just and proper. The appeal therefore deserves to be dismissed.
9. In view of above ,the following order is passed. 9.1 The present appeal is dismissed with no order as to costs. The civil applications also stand disposed of in view of the dismissal of the appeal.
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NEUTRAL CITATION C/FA/4698/2018 ORDER DATED: 01/08/2024 undefined 9.2 The amount lying with the Tribunal and/or in the FDR, pursuant to the order of this Court if any, shall be disbursed to the claimant, along with accrued interest thereon if any, by account payee cheque, after proper verification and after following due procedure, within a period of six weeks from today.
9.3 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SRILATHA Page 7 of 7 Downloaded on : Fri Aug 02 23:57:53 IST 2024