Gujarat High Court
National Insurance Company Limited vs Kalubhai Bhikhabhai Mir ... on 15 June, 2022
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/FA/1459/2010 JUDGMENT DATED: 15/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1459 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or NO
any order made thereunder ?
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NATIONAL INSURANCE COMPANY LIMITED
Versus
KALUBHAI BHIKHABHAI MIR THRO'AABEDABEN WD/O.KALUBHAI M &
7 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
for the Defendant(s) No. 6
MR MTM HAKIM(1190) for the Defendant(s) No. 2,3,4
MR RAJESH K SHAH(784) for the Defendant(s) No. 8
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 7
RULE SERVED for the Defendant(s) No. 5
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 15/06/2022
ORAL JUDGMENT
1. The present First Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed against the judgment and Page 1 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 award dated 15.06.2009 passed by the Motor Accident Claims Tribunal (Auxiliary) Fast Tract Court No. 2 at Vadodara (for short the "Tribunal") in M.A.C.P. No. 1104 of 1998 awarding compensation of Rs.2,88,000/- to the claimants.
2. The brief facts which have given rise to filing of this appeal are that the claimants are the legal heirs of deceased Kalubhai Bhikabhai Mir, who died in a motor vehicular accident which took place on 04.07.1994 at about 12:00 noon on National Highway No. 8, near Nandesari Village. On account of such accident which took place, Kalubhai succumbed to injuries and died. As a result of this, to recover the amount of compensation, claim petition was submitted under Section 166 of the Motor Vehicles Act for claiming compensation of Rs.5 lakhs. 2.1. It is further reflecting from the record that during the pendency of the claim petition, original claimant namely, Kalubhai who had suffered injuries expired in month of February, 2005. As a result of this, the applicants being legal heirs submitted an application at Exhibit-11 for being joined as legal heirs and representatives and accordingly, they were Page 2 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 joined by carrying out necessary amendment at Exhibit-1. 2.2. On 04.07.1994, at about 12:00 noon, deceased Kalubhai was driving Matador Tempo bearing registration no. GJ-7U-9281 and was proceeding towards Kheda from Bharuch. At that point of time, on account of heavy rain, one truck bearing registration no. GJ-3-T-1871 was standing on the edge of the road on account of puncture and there was heavy rain, one labourer was crossing the road and to save the said labourer, deceased Kalubhai applied brakes and at that time, left portion of the Matador collided with truck which resulted into serious accident. On account of said accident which took place, deceased Kalubhai succumbed to injuries as stated above and an offence was registered regarding such incident before Chhani Police Station, Vadodara being C.R. No. I-117 of 1994. 2.3. Ultimately, after completion of pleadings, Issues have been framed and after analysis of oral as well as documentary evidence on record, learned Tribunal was pleased to partly allow the claim petition by directing the amount of compensation to be paid and to be processed. The operative Page 3 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 part of the said award dated 15.06.2009 is reproduced hereunder :-
: ORDER :
- The claim petition is PARTLY ALLOWED.
- The opponent nos. 1 to 3 are ordered to pay 20% & opponent nos. 4 and 5 also ordered to pay 80% of Rs.2,88,000/- (Rupees Two Lacs Eighty Eight Thousand only) as compensation, jointly & severally, to the applicants together with proportionate cost and interest @9% p.a., from the date of filing of delay and condone application i.e. 30.06.1995 till realization.
- The interim amount of compensation if any, paid or deposited under the principle of NO FAULT LIABILITY, will be adjusted from the aforesaid amount of compensation awarded in this final adjudication.
- Amount of COURT FEES if recoverable be recovered from the awarded amount of compensation and the same to be taxed as costs of the petition.
- The opponent/Insurance Company is directed to follow the instructions given by the Hon'ble High Court in First Appeal No. 1392 of 2006 in the case of Hansaguri Prafulchandra Ladhani & Ors., v. The Oriental Insurance Co. Ltd.
- The disbursement order will be made after depositing the amount of compensation.
- Opponents to bear their own cost.
- Award be drawn accordingly."
3. It is against this judgment and award passed by the learned Tribunal, Vadodara, present First Appeal has been filed Page 4 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 which has come up for consideration before this Court finally.
4. Learned advocate Mr. Vibhuti Nanavati appearing on behalf of the appellant - Insurance Company has raised main and substantial contention that there is no nexus between the accident and the resultant injuries with the death of Kalubhai in the year 2005. It has been vehemently contended that the accident took place on 04.07.1994, whereas the claim petition was submitted in the year 1998 and during the pendency of this petition, said original claimant expired in the month of February, 2005 and as such, on account of no nexus between the accident and the death after a long period of time, the appellant - Insurance Company cannot be held responsible. According to learned advocate Mr. Nanavati, it has been submitted that death has occasioned on account of attack of paralysis which has nothing to do with the original injuries which were sustained by the deceased in a vehicular accident and as such, in absence of any material being produced to establish the nexus between the injuries and the death, there is hardly any reason for the learned Tribunal to arrive at a conclusion and as such, on that ground alone, the order Page 5 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 deserves to be quashed and set aside. Learned advocate Mr. Nanavati has declared before the Court that the accident had taken place partially on account of negligence shown by the deceased in driving the Matador and as such, no liability can be fastened upon the owner of the Truck and resultantly upon the present appellant - Insurance Company and hence, the view taken by the learned Tribunal is suffers from the vice of non application of mind and that being so, the same be quashed and set aside in the interest of justice.
4.1. Learned advocate Mr. Nanavati fairly has not agitated about the quantum part of the award, but has emphasized contention with regard to the nexus of death and the injuries. Hence, by ascertaining such contention, learned advocate Mr. Nanavati has reiterated his request to set aside the impugned award. For this purpose, learned advocate Mr. Nanavati has relied upon a decision in the case of Madhuben Maheshbhai Patel since Decd. Through heir v. Joseph Francis Mewan & Ors., rendered in First Appeal No. 1528 of 2009 and by referring to this decision, has submitted that the appeal may be allowed by setting aside the impugned order. No other Page 6 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 submissions have been made.
5. As against this, learned advocate appearing for the respondents - claimants has submitted that a well reasoned order is passed by the learned Tribunal which does not call for any interference and further, on the basis of critical analysis of the material on record, a clear conclusion is arrived at with respect to negligence and decided Issue No. 1 by holding that opponent no. 1 - Truck driver is negligent to the extent of 20% whereas Matador driver is held to be responsible to the extent of 80% for causing such accident and as such, there is hardly any reason pointed out by the appellant to call for any interference. On the contrary, the appellant - Insurance Company has miserably failed to prove that there is no nexus between the injuries and the death. It has been submitted that the cause of death has also clear nexus about the treatment related to the injuries which took place in a vehicular accident and the appellant - Insurance Company has neither raised such contention nor has established the same by leading any evidence or by cross-examining the witness and accordingly, has requested that this contention has no legs to stand, hence, Page 7 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 requested to dismiss the appeal.
6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it appears that while arriving at a conclusion with respect to issue of negligence, the learned Tribunal has at length considered the panchnama to see the position of the vehicles and has also considered the surrounding circumstances which were prevailing at the time of accident and having clearly found from the panchnama at Exhibit-41 and the complaint at Exhibit-40 that both the drivers of the vehicles have contributed more or less in causing the accident. On the basis of oral evidence of applicant - Abadeben K. Mir and witness Yusufbhai whose evidence were Exhibited at Exhibit-32 and Exhibit-47 respectively, the learned Tribunal came to the conclusion that both the drivers are responsible to the extent of ratio narrated in deciding Issue no. 1. As said earlier, the truck driver was held responsible to the extent of 20% whereas, the Matador driver was held responsible to the extent of 80% and as such, this Issue has been decided with cogent reasons and there appears to be no infirmity or perversity in the conclusion and to Page 8 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 that extent, even learned advocate Mr. Nanavati for the appellant - Insurance Company has not much agitated.
6. Further learned advocate Mr. Nanavati has not raised serious contention on the contributory negligence as decided by the learned Tribunal in respect of Issue No. 1, and as such, the Court need not to discuss the same. However, so far as the issue raised by learned advocate Nanavati about the nexus of injuries with death occurred, the Court has to examine the said conclusion and its correctness. It is revealed from the record that deceased Kalubhai sustained serious injuries as CLW abrasion over Right frontal region 5x2 cm., fracture on right knee and pelvis, fracture Rt. Femur of mid shaft etc., and after having discharged from the hospital, had to take frequent follow up of treatment right upto 30.12.1994 and this prolonged treatment is in connection with very same injuries which were sustained and suffered by deceased Kalubhai. On account of such injuries, time and again, complaints were made about pain in head, right leg and wrist and movements were terminally painful and restricted and he was not in a position to walk without clutches and, therefore, due to such head injury, he Page 9 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 suffered problem of paralysis and consequently shock and suffering was persisting, which ultimately resulted into the death in the month of February, 2005 and as such, prolonged treatment has a clear connection with the injuries sustained in the accident and had direct nexus with the death since follow up treatment remained upto 30.12.1994 which was rightly analyzed by the learned Tribunal.
7. To this Issue hardly any confrontation appears to have been made by the appellant before the learned Tribunal. On the contrary, there was no cross-examination there was no contrary evidence led in respect of such and it appears that such Issue has not been even seriously canvassed by the Insurance Company. Hence, when the appellant - company has not disproved such nexus in the evidence nor in cross-examination even after the death has occurred after some period of time, it cannot be assumed that there is no nexus with the injuries with the death of the deceased. The detail evidence in the form of affidavits, in the form of uncontroverted injuries discussed by the learned Tribunal, and on the basis of the complaints as well as panchnama, it appears to this Court that the issue about nexus which is tried to be raised is not cogently well supported Page 10 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 by the evidence in favour of appellant. As a result of this, the appellant has miserably failed to establish the said point. 7.1. The decision which has been tried to be relied upon after the facts to be examined at length, the same is not of any assistance to the appellant company, more particularly, here undisputedly follow-up treatment continued upto 30.12.1994 which resulted into ultimate death in February, 2005 and these consequences were regenerated from the injuries which took place in a vehicular accident. Hence, in the absence of any contrary proof or distinguishable material, there is hardly any reason for this court to dislodge the finding which has been arrived at. The said order being balanced order, the Court on the basis of the material on record is not inclined to disturb or substitute the finding which has been arrived at.
8. At this stage, even the appellant company has not projected clearly that paralysis has no connection with the injuries and the treatment which was going on. Hence, in the absence of any such material on record to that effect, the contention raised by the appellant company is not acceptable to this Court. Accordingly, no case is made out by the appellant. Page 11 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022 C/FA/1459/2010 JUDGMENT DATED: 15/06/2022 Hence, appeal stands dismissed.
(ASHUTOSH J. SHASTRI, J) phalguni Page 12 of 12 Downloaded on : Sat Dec 24 18:51:18 IST 2022