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2019 DIGILAW 878 (GUJ)

Reliance General Insurance Co. Ltd. v. Niranjaben

2019-10-10

PARESH UPADHYAY, R.M.CHHAYA

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JUDGMENT : R.M. Chhaya, J. 1. Feeling aggrieved by and dissatisfied with the judgment and award dated 24.01.2019 passed by Motor Accident Claims Tribunal (Aux.) and Addl. District Court, Mahisagar at Lunavada, (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No. 1791/2017, the appellant - Insurance Company has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short). 2. Heard Mr. Rathin P. Raval, learned counsel for the appellant - Insurance Company and Mr. Chetankumar Shah, learned counsel for the respondents - original claimants. Learned counsel for the appellant as well as the original claimants submitted that the short issue arises in this appeal only on the ground of negligence and therefore, as the liability is not denied by the appellant, presence of respondent Nos. 5 and 6 being driver and owner of the truck respectively is not essential for deciding this appeal. It was, therefore, submitted that the appeal be heard for final disposal. 3. In light of the aforesaid facts and at the request of learned counsel for the parties, the appeal is taken up for its final disposal. 4. The following noteworthy facts emerge from the record of the appeal:- 4.1 That on 10.06.2010, the deceased Hemantbhai Pandya was returning in his Maruti Car bearing Registration No. GJ-17-C-653 from Vadodara along with his wife and younger child Aditya. When they reached at Viraniya Cross roads, his Maruti Car was stopped, due to which, the deceased was checking the car. At that time, one Truck bearing registration No. GJ-12-W-6688 came in rash and negligent manner and dashed with the deceased, due to which, the deceased died on the spot. 4.1 Pursuant to the said accident, FIR being C.R. No. I-42/2010 came to be lodged with Lunavada Police Station. 4.2 The claimants preferred a claim petition before the Tribunal under Section 166 of the Act and claimed Rs. 50,00,000/-, wherein the Tribunal awarded a sum of Rs. 42,33,328/- alongwith proportionate costs and interest at the rate 9% from the date of filing of claim petition till its realization. 4.3 Being aggrieved by the same, the appellant - Insurance Company has filed present appeal. 5. 50,00,000/-, wherein the Tribunal awarded a sum of Rs. 42,33,328/- alongwith proportionate costs and interest at the rate 9% from the date of filing of claim petition till its realization. 4.3 Being aggrieved by the same, the appellant - Insurance Company has filed present appeal. 5. Learned counsel for the appellant has raised following contentions:- (i) That the Tribunal has not properly appreciated the evidence in form of FIR at Exh:27 and Panchnama at Exh:28; (ii) That the Tribunal as such has not properly considered the manner in which the accident has occurred and that, without assigning any reason, has come to the conclusion that the driver of the truck was solely negligent; (iii) That, as such upon reading the Panchnama at Exh:28, driver of the truck as well as deceased (driver of Maruti Car) both were equally negligent; On the abovementioned contentions, learned counsel for the appellant submitted that the appeal be allowed and driver of Maruti car should be held negligent to the extent of 50% and the judgment and award may kindly be modified accordingly. 6. Per contra, Mr. Chetankumar Shah, learned counsel for the claimants has opposed this appeal vehemently. He contended that, the Tribunal has committed no error in coming to the conclusion that the driver of the Truck was solely negligent. He contended that, even in the panchnama itself, it is recorded that the truck (dumper) involved in the accident dashed with the Maruti car from behind, while it was stationary. Therefore, the appeal being meritless, deserves to be dismissed. No other or further submissions have been made by learned counsel for the parties. 7. Upon considering the submissions made and on perusal of the FIR at Exh:27 and the Panchnama at Exh:28, it appears that the accident took place on 18 feet wide road, which was a highway. Considering the manner in which the accident has taken place as per the panchnama, the Maruti car is damaged from both the sides. Panchnama also recites that doors of both the sides were damaged because of dashing of the truck i.e. dumper. It is not the case of the claimants that the truck was being driven in wrong side. Considering the manner in which the accident has taken place as per the panchnama, the Maruti car is damaged from both the sides. Panchnama also recites that doors of both the sides were damaged because of dashing of the truck i.e. dumper. It is not the case of the claimants that the truck was being driven in wrong side. Upon reappreciating the evidence in form of Panchnama at Exh:28, it clearly appears that the car was also being driven in the middle of 18 feet wide road, which was damaged on both the doors, which establishes the said fact. 8. Upon reappreciating the evidence of Panchnama, it can be said that the accident occurred because of negligence on part of the drivers of both the vehicles. However, the truck is admittedly a bigger vehicle and driver of the truck should have been more careful and therefore, the contentions raised by learned counsel for the appellant that the driver of both the vehicles were equally negligent cannot be accepted. 9. Upon re-appreciating the contents of the Panchnama at Exh:28 and also looking to the effect and impact of the accident, this Court is of the opinion that driver of the truck was more negligent than the driver of the car and therefore, this Court is of the opinion that driver of truck being registration No. GJ-12-W-6688 was negligent to the extent of 90%, whereas the deceased himself was negligent to the extent of 10%. 10. Having come to the aforesaid conclusion, the respondents claimants would be entitled to compensation as under:- Rs.42,33,328/- Awarded by the Tribunal Rs.4,23,332/- 10% deduction as the deceased is negligent to the extent of 10% --------------- Rs. 38,09,996/- Final amount 11. In view of the above, the claimants would be entitled to obtain total compensation of Rs. 38,09,996/- with proportionate costs and interest at the rate 9% from the date of filing of claim petition till its realization. Accordingly, the Tribunal shall refund a sum of Rs. 4,23,332/- along with proportionate costs and interest at the rate 9% from the date of filing of claim petition till its realization to the appellant - Insurance Company within a period of 8 weeks from today. 12. For the foregoing, the appeal is partly allowed. Impugned judgment and award stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. 12. For the foregoing, the appeal is partly allowed. Impugned judgment and award stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. Record and proceedings be transmitted back to the learned Tribunal forthwith. No order as to costs.