Gujarat High Court
Oriental Insurance Company vs Arpankumar Vijaybhai Purohit on 22 June, 2022
C/FA/279/2014 JUDGMENT DATED: 22/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 279 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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ORIENTAL INSURANCE COMPANY
Versus
ARPANKUMAR VIJAYBHAI PUROHIT & 1 other(s)
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 1.1,1.2
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 22/06/2022
ORAL JUDGMENT
[1] The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Page 1 of 9 Downloaded on : Tue Jun 28 20:29:34 IST 2022 C/FA/279/2014 JUDGMENT DATED: 22/06/2022 Company, being aggrieved and dissatisfied with the judgment and award dated 07.10.2013 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara on Motor Accident Claim Petition No. 1904 of 2006, by which the Tribunal has awarded compensation of Rs.4,20,000/- along with interest at the rate of 9% per annum till the date of realization to the claimants.
[2] Brief facts of the case are as under:-
[2.1] It is the case of the claimants before the Tribunal that on 04.08.2004 at about 6.45 a.m., when the deceased and his brother were returning from school on the Motorcycle bearing registration No. GJ-6-AR-5766, being driven by the deceased, the opponent No.1 while driving his Motorcycle bearing registration No. GJ-6-PP-3496 had dashed them from back side, due to which the deceased received grievous injuries on head, causing his death during treatment. It is the case of the claimants that at the time of accident the deceased was serving as Assistant Computer Instructor, earning Rs.2,500/- per month and in part-time, he was also taking tuition, earning Rs.1,500/- per month and therefore, he was earning total Rs.4,000/- per Page 2 of 9 Downloaded on : Tue Jun 28 20:29:34 IST 2022 C/FA/279/2014 JUDGMENT DATED: 22/06/2022 month. Therefore, the claim petition is filed to get the compensation under Section 166 of the Motor Vehicles Act, 1988 to the tune of Rs.6,50,000/-.
[2.2] The claim Tribunal has issued notices to the respondents in the claim petition and respondent No.2 - Insurance Company of the Motorcycle bearing No. GJ-6-PP-3496 had filed its written statement by disputing its liability and negligence aspect etc. Thereafter, the Tribunal has framed the issues vide Exh.13 for determination of the claim petition and thereafter the claimant has given oral deposition at Exh.23 who was also cross examined by the Insurance Company and claimant has also produced documentary evidence like, complaint at Exh.24, panchnama of place of incidence at Exh.25, death certificate at Exh.26, P.M. Report of deceased at Exh.27, R.C. Book of Motorcycle of opponent No.1 at Exh.28, Insurance Policy of Motorcycle at Exh.29, Driving Licence of deceased at Exh.16, R.C. Book of Motorcycle of deceased at Exh.17, Driving Licence of Opponent No.1 at Exh.18, Reports, Injury certificate etc. at Exh.19, S.Y.B.Com. Mark-sheet of deceased at Exh.20, skill certificate of deceased at Exh.21 and salary certificate at Exh.22 Page 3 of 9 Downloaded on : Tue Jun 28 20:29:34 IST 2022 C/FA/279/2014 JUDGMENT DATED: 22/06/2022 and opponent Nos.3 and 5 have produced the Insurance Policies of the involved vehicles at Exh.34 and 35. Thereafter, the Tribunal has considered the arguments of the parties and decided by awarding the compensation under the various heads to the tune of Rs.4,20,000/- with 9% interest per annum till the date of realization to the claimants, holding all the opponents liable, jointly and severally to pay the amount of compensation. Therefore, the present appeal under Section 173 of Motor Vehicles Act is preferred by the appellant - Insurance Company. [3] Dr. Rushang Mehta, learned advocate appearing on behalf of Mr. Dakshesh Mehta, learned advocate for the appellant has contended that the Tribunal has erred in awarding amount of compensation by ignoring the material contention raised by the Insurance Company that the involvement of vehicle that means the Motorcycle is doubtful as initially the deceased went to the Sangham Hospital where the medical legal form was issued by that hospital is indicating that the accident has occurred near Subhash Char Rasta between one cow and bike as deceased dashed with the cow and as a result of this, serious injuries were sustained by him and he was admitted to the Sangham Page 4 of 9 Downloaded on : Tue Jun 28 20:29:34 IST 2022 C/FA/279/2014 JUDGMENT DATED: 22/06/2022 hospital. He has further submitted that there is a negligence on behalf of both the vehicles as deceased himself was driving the vehicle and that material aspect has not considered by the Tribunal in proper manner and therefore, on this ground, the appeal is required to be allowed as involvement of vehicle is doubtful and therefore, Insurance Company cannot be held liable to pay the amount compensation.
[4] Per contra, Mr. M.T.M. Hakim, learned advocate appearing for the original claimants - opponents No.1 and 2 has submitted that the Tribunal has rightly considered all the submissions and more particularly in paragraph No.14.2 of the impugned judgment. He has drawn the attention of this Court towards finding of the Tribunal where the Tribunal has categorically observed in paragraph No. 14.2, which reads as under:
"(14.2) xxx. It is mentioned in the FIR, which is given by the eye witness, who was going as pillion rider upon the motorcycle of the deceased, that at the time of accident, there was heavy rain, they were returning back to home and at that time, the opponent No.1 dashed his motorcycle from the back side of their motorcycle, due to which the motorcycle of the deceased was dragged and collided with a cow also. Thus the fact of the whole incidence goes to Page 5 of 9 Downloaded on : Tue Jun 28 20:29:34 IST 2022 C/FA/279/2014 JUDGMENT DATED: 22/06/2022 proves that the opponent no.1 was coming in much speed, in spite of having much rain and clogged water on the road and thereby was negligent causing the accident. Thus, in view of the above discussion, it is clearly proved that the vehicle of opponent was well involved in the accident, the deceased died in the same accident and the opp. no.1 was solely negligent, causing the accident. xxx."
[4.1] He has further submitted that the Tribunal has considered specifically the deposition of the eye witness who has given the FIR before the police and the other documentary evidence is also supporting the case of the claimants and more particularly when the insurance company has not examined any witness in support of contentions and therefore, the Tribunal has rightly considered the dispute about the issue of involvement of vehicle as well as the negligence part on the vehicle of opponent No.1 and therefore, he has contended that the Tribunal has not committed any error in awarding the amount of compensation and by holding opponent No.1 liable and in turn the Insurance Company of the vehicle are also found liable to indemnify the amount of claim.
[5] I have perused the Record and Proceedings of the Tribunal. I have also considered the averments made in the Page 6 of 9 Downloaded on : Tue Jun 28 20:29:34 IST 2022 C/FA/279/2014 JUDGMENT DATED: 22/06/2022
memo of appeal. I have also perused the impugned judgment and award passed by the Tribunal. I have also considered the submissions made at bar by the rival advocates and on consideration of the submissions made at the bar, it is found that the Tribunal has given cogent and convincing reasons more particularly paragraph 14.2 about involvement of vehicle. If we peruse the FIR filed by the eye witness as well as panchnama of the scene of offence which also clearly established that the vehicle of the opponent No.1 is involved in the accident and from the version of the FIR which is given by the eye witness, who is pillion rider of the vehicle which is driven by the deceased, the same is not controverted in any manner by the respondents. In the Tribunal Insurance Company has failed to lead any evidence to establish that the vehicle of the opponent No.1 is not involved in the accident nor Insurance Company has examined any witness to prove that there is a negligence on the part of deceased also and therefore from the FIR, panchnama and version of pillion rider about the occurrence of accident, I found that the Tribunal has not committed any error in holding that both the vehicles are involved in the accident and though there was heavy rain, the opponent No.1 has driven his Page 7 of 9 Downloaded on : Tue Jun 28 20:29:34 IST 2022 C/FA/279/2014 JUDGMENT DATED: 22/06/2022 motorcycle in a rash and negligent manner and has caused the accident and therefore he is solely negligent for causing the accident and therefore, there is no error committed by the Tribunal in giving finding on that aspect about involvement. On the contrary, the Tribunal has discussed all the aspects of the vehicle in detail and more particularly by giving cogent and convincing finding in paragraph 14.2 of the impugned judgment. I found there is no error committed by the Tribunal looking to the amount of compensation also, though it is not challenged in any manner by the appellant and therefore, I find that no interference is called for under Section 173 of Motor Vehicles Act. Hence, no case is made out for interference and appeal is meritless and deserves to be dismissed. Hence, the present First Appeal is dismissed with no order as to costs. [6] The Tribunal is directed to disburse the amount, which is lying in the FDR and / or with the Tribunal pursuant to the earlier order passed in the First Appeal to the claimants within four weeks from the date of receipt of the copy of this order by account payee cheque, after proper verification and after following due procedure.
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C/FA/279/2014 JUDGMENT DATED: 22/06/2022
[7] Record and proceedings be sent back to the concerned
Tribunal, forthwith.
Sd/-
(SANDEEP N. BHATT, J.)
DHARMENDRA KUMAR
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