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Gujarat High Court · body

2018 DIGILAW 113 (GUJ)

Oriental Insurance Company Ltd. v. Natvarbhai Lallubhai Patel

2018-01-12

AKIL KURESHI

body2018
JUDGMENT : AKIL KURESHI, J. 1. This appeal is filed by the insurance company challenging the judgment and award of the Motor Accident Claims Tribunal passed in MACP No. 337 of 1991. The insurance company had mainly contested the award on the ground of the negligence. This issue was concluded by a separate order passed on 08.12.2017, which reads as under: “These three First Appeals are filed by the insurance company, the insurer of the tanker which got involved into an accident on 26.2.1991. The record would show that the tanker dashed violently with the two motorcycles coming from opposite direction causing instantaneous death of the four travellers of these two motorcycles. Four claim petitions came to be filed by the claimants before the Motor Accident Claims Tribunal, Vyara. By a common judgment and award 26.7.2007, the Claims Tribunal disposed of three of the claim petitions, awarding different compensations to the claimants holding that it was the driver of the tanker who was solely negligent in causing the accident. The insurance company has challenged the award on the ground of negligence as well as quantum. Learned advocate for the insurance company was not present though the matters were called out twice. Having heard the learned advocate Shri Hakim for the claimants and having perused the documents on record, I have no hesitation in holding that the Claims Tribunal was perfectly justified in coming to such a conclusion. All the four persons travelling on two separate motorcycles having died, the claimants were not in a position to produce any eyewitness to the incident. The Tribunal correctly recorded that the tanker of the driver would have been the best witness who was not examined. Immediately there was a possibility of drawing an adverse inference against him. The Tribunal in fact, in addition to these factors also minutely perused the panchnama of the scene of the incident which was produced at Exh.97. A perusal of the panchnama would show that the road was east-west road. The motorcyclists were apparently going from west to east. Both the motorcycles were extensively damaged. One of them was completely crushed and found in the ditch by the road side. A perusal of the panchnama would show that the road was east-west road. The motorcyclists were apparently going from west to east. Both the motorcycles were extensively damaged. One of them was completely crushed and found in the ditch by the road side. More significantly, the tanker which was travelling from east to west, was found from the ditch on the northern side of the road clearly indicating that it was the tanker driver who had taken his vehicle to the completely wrong side of the road and caused the accident. The recklessness of the driver is further manifest from the fact when we consider that the vehicle would have been moving at such an excessive speed that after first violently colliding with the motorcycles, the tanker still went to the completely wrong side of the road and fell in the ditch at a far distance away from the place where the two motorcycles were found. Both the motorcycles were on the correct side of the road. I therefore, have no hesitation in confirming the view of the Tribunal that the accident occurred due to the sole negligence of the driver of the tanker. On the question of quantum, I would like to hear the advocate for the insurance company. S.O. to 15.12.2017. If on such date, advocate for the insurance company still does not appear, I may hear the counsel for the claimant and dispose of the appeals.” 2. The insurance company has also raised a question of compensation. However, the same is more than reasonable. In fact, the record would suggest that the deceased was aged about 40 years and was engaged in the business of animal husbandry. The Tribunal believed his income to Rs. 1,500/- per month and adopted a multiplier of 13, which was on the lower side. No interference is called for. 3. First Appeal is dismissed along with Civil Application. R & P to be transmitted back to the trial Court.