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2016 DIGILAW 362 (GUJ)

Oriental Insurance Co. Ltd. v. Shardaben

2016-02-15

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. This appeal has been preferred by the Oriental Insurance Company Limited as well as Driver and Owner of the Truck bearing Registration No. GTY-6075, being aggrieved by the judgment and award dated 29.11.1991 passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad in Motor Accident Claim Petition No. 578 of 1985, wherein the learned Tribunal has been pleased to award the compensation of Rs. 4,44,000/-. 2. The appellants have inter-alia contended that the Tribunal has not properly appreciated the oral as well as documentary evidence and has wrongly recorded the finding of negligence against the driver of offending Truck bearing Registration No. GTY-6075. The learned Tribunal has placed unnecessary reliance upon the panchnama of scene of accident and has erred thereon. The learned Tribunal has failed to appreciate that deceased-Narsinhbhai Devakaranbhai Patel was a passenger in Truck bearing Registration No. GTY-6075 and his risk is not covered in the Insurance Policy and therefore, no liability could have been fastened upon the Insurance Company. It is further contended that the learned Tribunal has wrongly recorded the finding regarding the income and also wrongly adopted the multiplier for computing the future loss of income. 3. The brief facts of the case are that the deceased-Narsinhbhai Devkaranbhai was travelling in Truck No. GTY-6075 while going from Rakhial to Modasa on 13.3.1985, at that time, Truck No. GRN-4026 was coming from the opposite side. A motor Truck No. GRN-3393 was following the Truck of the deceased Narsinhbhai Devkaranbhai. The opponent No. 1 was driving the Truck No. GTY-6075 wherein deceased was travelling and the Truck was owned by the opponent No. 3. The opponent No. 6 was the driver of the Truck No. GRN-4026 which was coming from the opposite side and it was owned by opponent No. 4. One motor Truck No. GRN-3393 was coming at the relevant time from the back side of the Truck No. GTY-6075. The Truck bearing No. GTY-6075 wherein the deceased was travelling got sandwiched from both the sides, i.e. Truck No. GRN-4026 from the front side and Truck No. GRN-3393 from the back side. Truck No. GRN-3393 was being driven by opponent No. 2 and was owned by opponent No. 5. Opponent No. 8 is the insurer of Truck No. GTY-6075. The Truck bearing No. GTY-6075 wherein the deceased was travelling got sandwiched from both the sides, i.e. Truck No. GRN-4026 from the front side and Truck No. GRN-3393 from the back side. Truck No. GRN-3393 was being driven by opponent No. 2 and was owned by opponent No. 5. Opponent No. 8 is the insurer of Truck No. GTY-6075. Opponent No. 7 is the insurer of Truck No. GRN-3393 and opponent No. 9 is the insurer of Truck No. GRN-4026. 4. Mr. R.G. Dwivedi, learned advocate appearing for appellant No. 1 has drawn attention of this Court to the record and proceeding of learned trial Court as well as impugned judgment and award passed by the learned Tribunal and he has also argued that the learned Tribunal has fallen in error in recording sole negligence on the part of the driver of Truck No. GTY-6075 even though three vehicles were involved in the accident and prima facie, it appears that head-on-collusion had taken place between Truck No. GTY-6075 and Truck No. GRN-4026. 5. Mr. R.G. Dwivedi, learned advocate appearing for the appellant has also raised second contention as regard to fastening the liability upon the Insurance Company and he has argued that the deceased was travelling in the aforesaid Truck No. GTY-6075 as unauthorized passenger even though the vehicle in question was a goods vehicle and therefore the Tribunal ought not to have fastened the liability upon the Insurance company. Mr. Dwivedi has also raised third contention as regard to the question of quantum of compensation awarded to the claimants. 6. Against the aforesaid argument Ms. Lilu Bhaya, learned advocate appearing for opponent No. 10 has contended that the learned Tribunal has elaborately dealt with all the contentions raised as regard to the facts as well as law points in the impugned judgment and has recorded detailed findings, assigning appropriate reasons, which calls for no interference by this Court. She has supported the judgment and award passed by the learned Tribunal and has prayed that the appeal may be dismissed. 7. In order to appreciate the contention raised by the Mr. She has supported the judgment and award passed by the learned Tribunal and has prayed that the appeal may be dismissed. 7. In order to appreciate the contention raised by the Mr. R.G. Dwivedi, learned advocate appearing for appellant No. 1 as regard to the findings recorded by the learned Tribunal on the point of negligence, it may be fruitful to reproduce para-9 of the judgment and award of the learned Tribunal here-in-below, which deals with the oral as well as documentary evidence adduced before the learned Tribunal: "It is pertinent to note that in this case no witness has been examined on the point of negligence. That point therefore requires to be decided with the help of the documentary evidence produced in this case. On going through the copy of the complaint Exhibit-63 it transpires that the complainant Dinesh Pratapsingh Thakor who was serving at Rakhial Station, was going to start the water supply of water tank at 5.30 in the morning at that time he heard great sound he therefore went at that place on his bicycle. He saw the accident between two Trucks bearing No. GTY-6075 and GRN-4026. He saw deceased Narsinhbhai in the Truck No. GTY-6075 on the front side near the conductor seat. He was dead. He categorically states that thereafter, another Truck bearing No. GRN-3393 came and dashed with Truck No. GTY-6075 wherein the dead body of Narsihbhai was lying. It is abundantly clear therefore, that the Truck No. GRN-3393 is not at all responsible for the death of deceased Narsihbhai because before it collided with the Truck No. GTY-6075 wherein deceased Narsibhai was travelling, Narsibhai was already dead due to the collision between Truck No. GTY-6075 and GRN-4026 and therefore the driver, owner and insurance co. of Truck No. GRN-3393 have no liability whatsoever to pay the compensation to the applicants. With the result that opponent Nos. 2, 5 and 7 go out of the picture. It is therefore now necessary to decide as to which driver and of the Truck No. GTY-6075 and GRN-4026 is responsible or whether it is a case of contributory negligence. As I have stated earlier we are deprived of oral evidence pertaining the accident. But the certified copy of the panchnama of scene of offence is produced at mark 62/2. It has not been exhibited. As it is a certified copy, it can very well be exhibited. As I have stated earlier we are deprived of oral evidence pertaining the accident. But the certified copy of the panchnama of scene of offence is produced at mark 62/2. It has not been exhibited. As it is a certified copy, it can very well be exhibited. I therefore, give it at Exh.-A, if we go through the contents of the panchanama, it transpires that Truck No. GRN-4026 was on the road with its two front wheels on the Katcha road whereas the right rear wheel was on the tar road and left near wheel was on the katcha road. It shows therefore, that the major portion of the Truck No. GRN-4026 was on the katcha road whereas the Truck No. GTY-6075 was on the road touching the Truck No. GRN-4026. The Truck No. GRN-4026 is on the correct side of the road whereas the other Truck is on the wrong side of the road. The panchnama therefore speaks volumes about the way in which the accident must have occurred. A careful reading of the entire panchnama gives us a picture that a Truck No. GRN-4026 was going on its left side i.e. correct side of the road while Truck No. GTY-6075 came on the wrong side and dashed with the right hand front side of the Truck No. GRN-4026 and therefore, in my opinion the driver of Truck No. GTY-6075 is solely responsible for the accident. The opponent No. 8 the original insurance Co. Ltd. have produced a copy of policy at Ex.104 to show that the Truck No. GTY-06075 was insured with them at the relevant time. As a matter of fact, there is no documentary evidence on record to show that Truck No. GRN-4026 is insured by New India Assurance Co. Ltd. Although there is no necessity of the said document because we have exonerated that insurance co. from the liability as the driver of the Truck No. GRN-4026 is not found negligent. However, I may mention that Ex.55 the written statement also shows that the Truck No. GRN-4026 is not insured by them. I therefore, hold that the driver of the Truck No. GTY-6075 is solely responsible for the accident being negligent. I therefore, decide the issue No. 1 accordingly. 8. However, I may mention that Ex.55 the written statement also shows that the Truck No. GRN-4026 is not insured by them. I therefore, hold that the driver of the Truck No. GTY-6075 is solely responsible for the accident being negligent. I therefore, decide the issue No. 1 accordingly. 8. Thus, the fact, as seen from the record and proceeding of the present case as well as from the judgment and award of the learned Tribunal, reveals that neither the driver nor the owner of the offending Truck No. GTY-6075 who were opponent Nos. 1 and 3 respectively, care to file written statement and have not stepped into the witness box to rebut the allegations made against them on the point of negligence, though they were served with the notice 9. In view of the aforesaid factual scenario, the panchanama of scene of offence reveals that Truck No. GRN-4026 was going on the left side of the road while Truck No. GTY-6075 came on the wrong side and dashed with the right hand front side of the Truck No. GRN-4026. Therefore, the learned Tribunal has rightly attributed negligence on the part of the driver of Truck No. GTY-6075. 10. On the overall appreciation of evidence on record, it appears that after the delivery of impugned judgment and award, while filing this appeal, the aforesaid dispute appears to have been raised. However, the fact remains that neither the driver nor the Insurance Company has taken any care to lead any evidence in support of such contentions raised before the learned Tribunal. In absence of any evidence on record or written statement of the driver and owner of the offending vehicle, this issue cannot be appreciated in the manner in which it has been argued before this Court. Therefore, the findings recorded by the learned Tribunal appears to be just and proper and is based upon the factual scenario which emerged before the learned Tribunal while adducing evidence. 11. Therefore, the findings recorded by the learned Tribunal appears to be just and proper and is based upon the factual scenario which emerged before the learned Tribunal while adducing evidence. 11. In order to appreciate the second contention raised by the learned advocate for the appellant that the deceased was travelling as an unauthorized passenger and there is no coverage of risk so far as the unauthorized passenger travelling in the goods vehicle No. GTY-6075, it may be noted that the appellants have clearly mentioned in para-13 of the claim petition that the deceased-Narsihbhai was travelling in the Truck No. GTY-6075 and he was seated nearby the cabin of the driver and he was proceeding from Rakhial to Modasa on 13.03.1985 at about 5.30 a.m. Against the aforesaid version which came to be pleaded in the petition, the Insurance Company has filed written statement at Exhibit-46, wherein the Insurance Company has raised the contention more particularly, in para 5, which reads as under: "Opponent No. 8 - Oriental Insurance Company Ltd. have filed written statement at Ex.46 wherein they have restored to the defence accorded under Section 96 of the Motor Vehicles Act. They have denied the negligence of the opponent No. 1 in driving the vehicle. They have challenged the income of deceased, the right of the applicants to get the compensation and have prayed that the application be dismissed. At Ex.51 the opponent No. 7 United India Ins. Co. Ltd. have filed the written statement wherein they have challenged the income of the deceased, the negligence of the driver-opponent No. 2 in driving Truck No. GRN-3393, the right of the applicants to get the compensation. However, they have admitted that the Truck bearing No. GRN-3393 was duly insured by them. It is also admitted that the said Truck was transferred to Jasvantlal Chandulal the opponent No. 5. They have prayed that the application be dismissed. 12. On going through the written statement which clearly transpires that the Insurance Company has not taken any clear contention that the deceased was travelling as an unauthorized passenger and consequently therefore, his risk is not covered. The said contention appears to have been raised in a very clumsy manner as if any condition of policy appears to have been breached. However, the Insurance Company has not raised such contention before the learned Tribunal. The said contention appears to have been raised in a very clumsy manner as if any condition of policy appears to have been breached. However, the Insurance Company has not raised such contention before the learned Tribunal. In this view of the matter, the appellant cannot be permitted to raise the above contention at the appellate stage for the first time. Therefore, the above contention raised by the learned counsel for the appellant is required to be rejected and is accordingly rejected. 13. Learned advocate Mr. R.G. Dwivedi, appearing for appellant No. 1 has also raised the contention that the learned Tribunal has wrongly recorded the finding regarding the income of the deceased and has also wrongly adopted the multiplier for computing the future loss of income. This Court has gone through the impugned judgment passed by the learned Tribunal and more particularly, finding recorded at Para-10 wherein the learned Tribunal has appreciated the oral evidence of widow of the deceased Narsinhbhai and Kirtikumar Babulal Shah who was writing the books of account of deceased. It was pleaded before the learned Tribunal that the deceased was dealing in the business of spare part of machinery and was earning Rs. 40,000/- per annum and he was also earning Rs. 10,000/- per annum from the agricultural income. Kirtikumar Babulal Shah was also examined at length on behalf of the opponent. After appreciating the evidence adduced on record, the learned Tribunal came to the conclusion that the deceased was earning between Rs. 40,000/- to 50,000/- per year, which appears to be just and proper as the said figure has been arrived keeping in view all relevant factors. The learned Tribunal has taken Rs. 4,000/- as datum figure for computing loss of dependency out of which Rs. 1,000/- was deducted as the amount which deceased would have spend himself per month. Thus, the amount for loss of dependency would come to Rs. 36,000/- per annum. The learned Tribunal has also considered his age to be of 40 years after considering the post mortem report at Exh:66 and on applying multiplier of 12, the total loss of dependency would come to Rs. 4,32,000/-. The learned Tribunal has also awarded Rs. 10,000/- towards loss of expectancy of life and Rs. 2,000/- towards funeral expenses. The learned Tribunal has therefore, awarded total compensation of Rs. 4,44,000/-. 14. 4,32,000/-. The learned Tribunal has also awarded Rs. 10,000/- towards loss of expectancy of life and Rs. 2,000/- towards funeral expenses. The learned Tribunal has therefore, awarded total compensation of Rs. 4,44,000/-. 14. In this view of the matter, on going through the impugned judgment and award passed by the learned Tribunal, though it appears that the income considered by the learned Tribunal to be inflated to some extent, however, the learned Tribunal has not extended any benefit of prospective rise. Therefore, in that view of the matter, this Court is not inclined to enter into the details of quantum of compensation. The finding as regard to the award of compensation recorded by the learned Tribunal appears to be inconsonance with the law and calls for no interference by this Court. 15. For the reasons recorded above, this appeal being devoid of any merits deserves dismissal and accordingly the appeal stands dismissed. No order as to costs. The Registry is directed to return the R & P, if any, forthwith to the learned Tribunal.