Gujarat High Court
National Insurance Company Ltd vs Rasiklal Panachand Modi & on 22 August, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/1569/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1569 of 2015
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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NATIONAL INSURANCE COMPANY LTD.....Appellant(s)
Versus
RASIKLAL PANACHAND MODI & 1....Defendant(s)
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Appearance:
MR DAKSHESH MEHTA, ADVOCATE for the Appellant(s) No. 1
MS ASHLESHA M PATEL, ADVOCATE for the Defendant(s) No.
1.1 1.3
RULE SERVED for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/08/2017
ORAL JUDGMENT
1. Heard Mr.Dakshesh Mehta, learned advocate for the appellant and Ms. Ashlesha Patel, learned advocate for the respondent.
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C/FA/1569/2015 JUDGMENT
2. By this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act"), the appellant insurance company has challenged the judgment and award dated 30.04.2015 passed by the learned Motor Accident Claims Tribunal (Main), Patan in an application under section 163A of the Act.
3. The followings facts emerge from the record 3.1 As can be culled out from the record of the appeal as well as the Record and Proceedings, the claimants herein, respondents no.1/1 to 1/3 preferred the present Motor Accident Claims Petition under section 163A of the Act on the factual premises that Rasiklal Panachand Modi was driving the motorcycle bearing registration no.GJ24E4485 on 20.04.2008 and while he was going from Bahucharaji to Patan and was passing through village Mithivadi, an unidentified jeep came from behind and dashed with the motorcycle which resulted into the accident, wherein late Mr. Rasiklal Panachand Modi received serious injuries and succumbed to death. The respondents claimants relied upon the FIR, panchnama and other documentary evidence being Exhibits 16 and 17 respectively. The claimants also adduced oral evidence at Exhibit 11. The insurance company also filed its written statement at Exhibit 14. The learned Tribunal, relying upon the judgment of the Apex Court in Page 2 of 8 HC-NIC Page 2 of 8 Created On Wed Aug 23 01:02:20 IST 2017 C/FA/1569/2015 JUDGMENT the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121 believed the case of the respondent claimants and passed the impugned award and awarded a sum of Rs.3,02,837/. Being aggrieved by the same, the present appeal is filed.
4. Mr. Mehta, learned counsel appearing for the appellant has contended that the learned Tribunal has failed to appreciate the submissions made by the appellant insurance company and has totally ignored the fact that the deceased was driving the motorcycle belonging to his friend and it was a borrowed vehicle and therefore, he has stepped into the shoes of the owner. Such vital facts have been totally disregarded by the learned Tribunal.
5. It was further contended that there is no evidence on record to show that the jeep dashed with the motorcycle which resulted into the death of Rasiklal Panachand Modi.
6. It was also contended that even from the police papers and FIR at Exhibit 16, it can be culled out that the bike driven by the deceased slipped because of which he received injuries. Mr. Mehta also contended that there was no damage on the backside of the motorcycle which establishes the fact that the motorcycle must have slipped rather than any unknown jeep coming from rear side of the motorcycle having dashed with it. Relying Page 3 of 8 HC-NIC Page 3 of 8 Created On Wed Aug 23 01:02:20 IST 2017 C/FA/1569/2015 JUDGMENT upon the judgment of this Court in the case of National Insurance Co. Ltd. Vs. Heirs and Legal representatives of Hiteshbhai Sureshbhai Patel reported in 2011(2) GLR 1003, it was contended that as the motorcycle driven by the deceased was a borrowed motorcycle, and thus the deceased had stepped into the shoes of the owner and as no other vehicle was involved, the claimants would not be entitled to any compensation under section 16A of the Act.
7. Mr. Mehta also relied upon the Division Bench judgment of this Court in the case of National Insurance Co. Ltd. Vs. Rasilaben Shantilal Yadav and Ors. passed in First Appeal No.3354/00 and submitted that at the most, the claimants may be entitled to compensation from the Collector of the District under section 163 of the Act as a hit and run case.
8. Per contra, Ms. Aslesha Patel, learned advocate has supported the impugned award and has submitted that it is not a fit case for interference by this Court in its appellate jurisdiction under section 173 of the Act and the appeal deserves to be dismissed.
9. Upon perusal of the contentions raised in the memo of the appeal and on perusal of the paper book, and on reappreciation of the evidence in form of FIR at Exhibit 16, it appears that the same was filed by one Navinchanda Panachand who Page 4 of 8 HC-NIC Page 4 of 8 Created On Wed Aug 23 01:02:20 IST 2017 C/FA/1569/2015 JUDGMENT happens to be the brother of the deceased Rasiklal Panachand Modi, which is recorded on 20.04.2008, wherein it is stated that the accident has occurred because of the reason that the motorcycle slipped. In other police papers such as panchnama at exhibit 17, the same does not reveal that any unknown jeep came from behind and dashed with the motorcycle driven by the deceased Rasiklal Panachand Modi. Though the factum of accident is proved and so also injuries received by the deceased, there is no evidence on record which establishes the fact that the jeep dashed with the motorcycle except in examination inchief at Exhibit 11. It further deserves to be noted that in crossexamination, the respondent Hasumatiben, one of the claimant, has stick to her version that the jeep came from behind and dashed with the motorcycle driven by the deceased. On reappreciation of the panchnama at Exhibit 17, it does transpire that the motorcycle driven by the deceased was Splendor motorcycle. It is also mentioned that there was no registration no. in the front or in the rear. It also reveals that the front portion of the motorcycle was broken and there was damage of the tank (petrol tank). The registration book at exhibit 19 shows that the motorcycle was in name of Rajeshkumar Raval and the learned Tribunal has come to the conclusion that the insurance company has not led any evidence to establish the relation between the deceased or Page 5 of 8 HC-NIC Page 5 of 8 Created On Wed Aug 23 01:02:20 IST 2017 C/FA/1569/2015 JUDGMENT the owner of the vehicle or rather proved that the deceased was the owner and he was not a third party. In the deposition of the claimant, it has come on record that the deceased was into transport business and was running a matador on rent. It also deserves to be noted that in the claim petition it is mentioned by the claimants that the deceased had gone for darshan at Bahucheraji temple. Even in the affidavit at exhibit 5, the same version is made by the claimants. It appears that all these vital aspects with respect is not considered by the learned Tribunal. It is no doubt true that in an application under section 163A, the structured formula has to be followed and the compensation is to be determined. However, the manner in which the accident has occurred and whether the deceased was owner of the vehicle or not or whether he was a third party is required to be examined by the Tribunal before concluding the issues which were framed for determination. At this stage, it would be appropriate to refer to the judgment of this Court in the case of National Insurance Co. (supra), wherein it is observed thus in para 19 "19. We have already extracted Section 163A of the Motor Vehicles Act hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where Page 6 of 8 HC-NIC Page 6 of 8 Created On Wed Aug 23 01:02:20 IST 2017 C/FA/1569/2015 JUDGMENT he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that even the liability to make payment of compensation is on the insurance company or the owner, as the case may be as provided under Section 163A. But if it is proved that driver is the owner of the motor vehicle, in that case, the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163A of the Motor Vehicles Act. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163A of the Motor Vehicles Act."
10. It is not the case of the claimant that the motorcycle was hired by the deceased. As mentioned hereinabove, Exhibit 19 shows that the motorcycle involved in the accident belonged to one Rajeshkumar Raval and therefore, such aspect should have been considered by the learned Tribunal. In light of the aforesaid therefore, this Court is left with no alternative but to quash and set aside the impugned judgment and award and remand back the proceedings. In light of the aforesaid, while allowing the appeal, the proceedings of Motor Accident Claims Petition No.200/08 are restored back to the file of the Tribunal. The Tribunal shall hear the parties again and pass appropriate fresh order on the basis of the evidence which is already led by the parties. The appeal is thus allowed as Page 7 of 8 HC-NIC Page 7 of 8 Created On Wed Aug 23 01:02:20 IST 2017 C/FA/1569/2015 JUDGMENT aforesaid. The Tribunal shall undertake this exercise preferably within a period of six months. The Registry is directed to send copy of this order to the Tribunal forthwith.
(R.M.CHHAYA, J.) bjoy Page 8 of 8 HC-NIC Page 8 of 8 Created On Wed Aug 23 01:02:20 IST 2017