Gujarat High Court
National Insurance Company Limited ... vs Indian Roadlines Prop. P.V. Manek on 15 June, 2022
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/FA/4837/2010 JUDGMENT DATED: 15/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4837 of 2010
With
R/FIRST APPEAL NO. 4838 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
==========================================================
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 ?
==========================================================
NATIONAL INSURANCE COMPANY LIMITED THROUGH REGIONAL
OFFICE
Versus
INDIAN ROADLINES PROP. P.V. MANEK & 2 other(s)
==========================================================
Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR PREMAL S RACHH(3297) for the Defendant(s) No. 3.1
MR VIJAY H NANGESH(3981) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2,3.2,3.3,3.4,3.5,3.6
==========================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 15/06/2022
COMMON ORAL JUDGMENT
1. Both these appeals are arising out of common judgment and award passed by Motor Accident Claim Tribunal (Main), Jamnagar District. In view of the request made by learned advocates, both these appeals are taken up for hearing conjointly.
2. So far as First Appeal No.4837 of 2010 is concerned, it is Page 1 of 9 Downloaded on : Sat Dec 24 18:51:19 IST 2022 C/FA/4837/2010 JUDGMENT DATED: 15/06/2022 filed under Section 173 of the Motor Vehicles Act, 1988 arising out of Motor Accident Claim Petition No.384 of 2006, whereas First Appeal No.4838 of 2010 is arising out of common order dated 30.3.2010 in connection with M.A.C.P. No.385 of 2006. Since both these claim petitions are arising out of the very same accident and out of the common judgment and award, for sake of convenience, facts are taken from First Appeal No.4837 of 2010 by treating the same as a lead matter.
3. The case in brief is that on 31.5.2006, in early morning at about 3 O'clock, claimant Ayubbhai Ishakbhai, Sumbhaniya were walking on 'Netar Na Bridge' along with wife Rahimaben, son Asaraf and mother Jiluben, and at that point of time, a dumper bearing registration No.GJ-10 V 6722 came in a rash and negligent manner, driven by driver, and dashed the wife Rahimaben and son Asaraf, on account of which, Rahimaben died due to such accident, whereas son Asaraf sustained serious injuries in legs and head. On account of this, mother Jiluben who was on the spot reached Mithapur Outpost and lodged FIR, bearing No.33 of 2006 at Okha Police Station, in which ASI of Okha Police Station has recorded statement of mother and additional statement on 31.5.2006 and 7.6.2006 respectively. On coming to know in additional statement, it was recorded that the dumper GJ-10 V 6722 was driven by driver Deepsinh @ Dipu Samaiyabha and the accident took place in the middle of the road Netar Na Bridge at Okha- Dwarka Highway road.
4. It is the say of the claimant that on account of such accident, wife Rahimaben sustained injuries on head and as such, was rushed down to Tata Hospital at 3.40 a.m. on 31.5.2006, but at 3.50 a.m., on account of serious head injuries, she succumbed to death. Applicant Ayubbhai has stated that Page 2 of 9 Downloaded on : Sat Dec 24 18:51:19 IST 2022 C/FA/4837/2010 JUDGMENT DATED: 15/06/2022 death has taken place in his presence. On account of injuries sustained by son Asaraf, there was fracture in Tibia Fibula in left leg and there was an injury in right eye and on head. Initially, he was taken to Tata Chemicals Hospital on 31.5.2006 at about 5.00 a.m., where he was treated preliminarily and then for head injury, was referred to a higher center from Tata Hospital. It has been stated that on account of this dumper, injuries have taken place and hence, a claim petition came to be submitted under Section 166 of the Motor Vehicles Act, which was registered as M.A.C.P. No.384 of 2006, which relates to claim petition for seeking compensation on account of death of Rahimaben. In the said MACP No.384 of 2006, a claim of Rs.7,50,000/- was prayed for as deceased was of 32 years at relevant point of time and was earning Rs.4000/- per month. This claim petition is filed by husband of deceased Rahimaben along with five minor children.
5. So far as claim with respect to injuries sustained by minor Asaraf was concerned, he was aged about 13 years at the time of accident. It was prayed for a compensation of Rs.50,000/-, which was reduced to the extent of Rs.25,000/-, and since both these claim petitions i.e. MACP Nos.384 of 2006 and 385 of 2006 were with respect to very same accident, were clubbed together, and vide common order, Motor Accident Claim Tribunal tried the same, which has resulted into passing of a common order dated 30.3.2010, which is made the subject matter of both these first appeals.
6. Learned advocate Mr. Vibhuti Nanavati appearing on behalf of the appellant- Insurance Company has contended that learned Tribunal ought to have appreciated that alleged incident occurred at about 3.00 a.m. (early morning of 31.5.2006), in which deceased Rahimaben was collecting coal on the middle of Page 3 of 9 Downloaded on : Sat Dec 24 18:51:19 IST 2022 C/FA/4837/2010 JUDGMENT DATED: 15/06/2022 the bridge along with her minor son Asaraf and at that point of time, some unknown vehicle dashed. In the panchama which was drawn at about 8.00 a.m., vehicle number was not available and in addition thereto, in the testimony of ASI Mr. Gajendrasinh Vibhanji Sodha at Exh.33, he has asserted that he has no personal knowledge and as such, when that be so, very involvement of the vehicle in question, being GJ-10 V-6722, allegedly dashed with deceased is in controversy and seriously in question and as such, in a mechanical exercise of jurisdiction, without analyzing, the Tribunal could not have passed the order.
7. It has further been contended that there is no relevance of statement of driver whose statement was recorded by police authority on 4.6.2006 and since he had not stepped into the witness box, nor said driver was examined by complainant, there is hardly any justification for fastening the liability and as such, the order suffers from vice of non-application of mind.
8. It has further been submitted that all the statements which are recorded are hearsay version, could not have been so aptly relied upon more particularly when there were no stretch marks or bloodstains on the dumper and as such, when claimant has failed to establish the very involvement of the vehicle in question, there is hardly any justification in passing the impugned order. On the contrary, according to Mr. Nanavati, entire negligence was that of deceased and son who at the early morning hours on the date of accident were picking up coals from middle of the road. All these issues have not been examined properly by the Tribunal. The order is not justified in the eye of law and requires to be corrected.
9. Learned advocate Mr. Nanavati has then submitted that no Page 4 of 9 Downloaded on : Sat Dec 24 18:51:19 IST 2022 C/FA/4837/2010 JUDGMENT DATED: 15/06/2022 negligence of dumper driver can be established to justify the liability and as such, the order is not sustainable in the eye of law. For this purpose, Mr. Nanavati has fairly submitted that the view taken by the Division Bench of this Court in a decision in the case of Hiraben Mangabhai v. Maganbhai Somabhai reported in 1997(2) GLR 1704 cannot be confronted by him and after raising this brief contention, has left to the discretion of the Court. No other submissions were made.
10. As against this, learned advocates Mr. Vijay Nangesh and Mr. Premal Rachh have vehemently opposed this stand of the Insurance Company and have submitted that a clear finding is recorded by learned Tribunal to justify the conclusion and as such, it cannot be said in anyway that there appears to be any material error nor can be said to be a non-application of mind. It has been submitted that on the contrary from the assertion of the driver, whose statement was recorded by police, it is clearly projected that his dumper was in dim light, was in speed and could not see on account of dim light nearby persons on the road and as such, his clear version reflecting from the record, on hyper technicality, it cannot be said that any error is committed by the Tribunal. Learned advocates have further submitted that involvement of the vehicle was clearly justifiable from the analysis undertaken by learned Tribunal of the material. In fact, it may be that at the relevant point of time, in the morning hours, number could not be realized but on the basis of the statement of Ketan Raghavbhai Kansara, who was Cleaner of vehicle bearing registration No.GJ-10 W-6178 has deposed at Exh.43 that after the incident, his dumper was first in point of time and from his version, it is revealed that from inter-se talks amongst dumper pliers, it was noticed that when deceased Rahimaben, son Asaraf and mother Jiluben were picking up Page 5 of 9 Downloaded on : Sat Dec 24 18:51:19 IST 2022 C/FA/4837/2010 JUDGMENT DATED: 15/06/2022 coals from road, one green colour dumper at about 3.00 O' clock coming from Mithapur has dashed with this and on account of that, driver Ibrahimbhai shifted both injured to nearby Tata Hospital, in which wife Rahimaben was having serious injuries, whereas son Asaraf was having injuries not of very serious in nature. Further, from the statement recorded on 3.6.2006 of Jiluben Muljibhai Jadeja, wherein also, it was noticed that one green coloured empty tempo was going at high speed and dashed with persons on 'Netar Na Pul' and as such, it is this truck in question, which is said to have been involved in the accident, and as such, it may be that there is a clear evidence of eye witness but surrounding circumstances have clearly led the Tribunal to come to a definite conclusion which is substantially supported by charge-sheet as well statement of Dipsinh Manek. Further, Dipsinh @ Dipu Somaiyabha Manek whose statement was recorded at Exh.37 has also clearly established that it is because of dim light of dumper, visibility was very short and dumper was in a speed which has resulted into an accident, in which deceased Rahimaben succumbed to injuries, whereas son Asaraf sustained few injuries. Therefore, conclusion which has been arrived at by learned Tribunal cannot be found inaccurate.
11. It has been submitted that on the contrary, when son Asaraf and deceased Rahimaben were picking up coal on right side of the road, this dumper has dashed and as such, from overall material, it was clearly concluded by learned Tribunal that testimony of Inquiry Officer, if to be compared with statement of Dipsinh, there appears to be a clear co-relation and further when it has been clearly set out on record that no other vehicle was passing on account of which deceased sustained injuries, hence view taken by learned Tribunal does not call for any interference.
Page 6 of 9 Downloaded on : Sat Dec 24 18:51:19 IST 2022C/FA/4837/2010 JUDGMENT DATED: 15/06/2022
12. In another appeal also, i.e. First Appeal No.4838 of 2010, learned advocate appearing on behalf of the claimants have adopted the stand taken in the lead matter, i.e. First Appeal No.4837 of 2010, and has submitted that overall material has justified the Court to take a proper view which cannot be said to be perverse in any form or suffering from vice of any material irregularity. When this be so, the appeal may not be entertained just to substitute the view when there is no distinguishable material. Accordingly, a request is made to allow the appeals.
13. Having heard learned advocates appearing for the parties and having gone through the material on record, it appears that the involvement of the vehicle, i.e. dumper No.GJ-10V-6722 is concerned, there is a clear evidence found and as such, in view of this, learned advocate Mr. Nanavati for the Insurance Company has submitted that main controversy is with regard to negligence being agitated and no other issues seriously and as such, Issue No.1 was rightly analyzed and answered by learned Tribunal. There appears to be no infirmity. In fact, from that discussion, it is revealed that dumper in question was being plied at a very high speed, was not having proper light, on the contrary dumper was running with dim light and on account of such dim light, there was no distant vision and in that situation, dumper appears to have dashed. The only consideration which is agitated seriously is with regard to negligence of deceased and to what extent. From the material on record, learned Judge found that at the time of accident, deceased wife, son and other family members were picking up coals from right side of the road and at that juncture, dumper has dashed the deceased. Even this version is well supported by the material on record and learned Tribunal found that driver's version and testimony of Inquiry Page 7 of 9 Downloaded on : Sat Dec 24 18:51:19 IST 2022 C/FA/4837/2010 JUDGMENT DATED: 15/06/2022 Officer are running almost on similar line and as such, when critical analysis of the material has led to such a conclusion by the Tribunal, there is hardly any justifiable reason to substitute the finding in absence of distinguishable material. Hence, the Court is clearly of the opinion that on account of negligence on the part of driver of dumper, injuries have taken place. Panchnama and other materials have also been analyzed by learned Tribunal while coming to the conclusion. Hence, Court see no reason to dislodge such conclusion when same is well supported by material on record.
14. Additionally, the Court has found that on the contrary, such kind of contention has never been raised before learned Tribunal nor any cross-examination has taken place with respect to such circumstance and as such, when that be so, it is not possible for this Court to dislodge the conclusion which has been arrived at by the Tribunal, which is based upon the critical analysis of the material on record.
15. On the contrary, Division Bench of this Court in the case of Hiraben Mangabhai (supra) has propounded that statement of driver recorded by police is admissible in evidence and besides such statement admission in the written statement by a person stating that the vehicle was under his control, said circumstance cannot be ignored. Relevant observations contained in para 11 of said judgment, Court would deem it proper to quote hereunder:-
11. In Gujarat, it is an admitted position of law that a statement given by a person, who knows about the vehicular accident as also that of the driver involved in the incident, is a statutory report because law casts the responsibility on the driver and the person who knows about the incident to report the same.
This is to be found in Section 89 of the Motor Vehicles Act, 1939. Amthiben Maganlal v. Superintending Geophysicist, O.N.G.C. 1976 (XVII) GLR 910, a judgment of Division Bench of this Court, clearly holds that a statement made by driver of the Page 8 of 9 Downloaded on : Sat Dec 24 18:51:19 IST 2022 C/FA/4837/2010 JUDGMENT DATED: 15/06/2022 vehicle involved in the incident is admissible in evidence."
16. As such, in respect of the aforesaid proposition, statement of Dipsinh @ Dipu Somaiyabha Manek at Exh.37 has rightly been appreciated by learned Tribunal and assertion of the complaint at Exh.34, if to be viewed in connection with the testimony of Gajendrasinh, it appears that there is no error committed by learned Tribunal in respect of an issue related to negligence. Further, injury certificates at Exhs.40, 41, 42 and statement of Ketan Raghavbhai Kansara at Exh.43, if conjointly to be considered, there is hardly any case made out by the appellants. Additionally, when an objection was raised for exhibiting statement of Mandipsinh @ Dipsinh dated 4.6.2006, said objection was turned down vide Exh.37, which has not been challenged any further and that statement has gone in evidence, which has revealed negligence of the vehicle in question driven by driver. Hence, on overall consideration of the material on record and in view of the discussion, it appears that no case is made out to call for any interference. As a result of it, the appeal being devoid of merits, stands dismissed.
17. Since the cognate appeal, being First Appeal No.4838 of 2010, is arising out of the common judgment and very same discussion, no separate discussions need be. Accordingly, said appeal is also dismissed on the discussion and reasons which are recorded herein-before. In view of this, both the First Appeals stand DISMISSED.
(ASHUTOSH J. SHASTRI, J) OMKAR Page 9 of 9 Downloaded on : Sat Dec 24 18:51:19 IST 2022