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2021 DIGILAW 1221 (GUJ)

ORIENTAL INSURANCE COMPANYLTD. v. TAYAB KASAM

2021-12-17

NIRAL R.MEHTA

body2021
JUDGMENT : NIRAL R. MEHTA 1. Being aggrieved and dissatisfied by the judgment and award dated 31.12.2005, passed by the learned MAC Tribunal (Aux.), Fast Track Court No.4, Jamnagar in MAC Petition No.982 of 2000, the appellant original opponent No.2 – Oriental Insurance Co. Ltd. has preferred this Appeal under Section 173 of the Motor Vehicles Act, 1988 challenging, inter-alia, the 50% negligence attributed on the part of the driver of the vehicle insured by the appellant . 2. The original claim petition was filed seeking, inter-alia, the compensation of Rs.2 lakhs by the claimant for the injuries received in the vehicular accident between Truck bearing registration No.GJ-7-X- 4253 and the Truck bearing registration No.GTY-4866. The truck bearing No.GTY-4866 was insured by the appellant herein i.e. Oriental Insurance Co. Ltd. Another vehicle involved in the accident bearing No.GJ-7-X- 4253 was insured by the respondent No.5 herein – United India Assurance Co. Ltd. It is to be noted that the driver of the Truck No.GTY- 4866 was not joined as a party respondent in the original claim petition. The respondent No.1 – original claimant was driving the Truck GJ-7-X- 4253. 3. Upon service of notice, the Appeal herein – Oriental Insurance Co. Ltd. appeared before the learned Tribunal and filed its written objections at Exh.13. Similarly, the respondent No.5 herein – New India Assurance Co. Ltd. had also appeared and filed its written statement below Exh.26. Rest of the opponents, though served, did not appear before the learned Tribunal. 4. The learned Tribunal, after having considered the evidence on record, held the drivers of both the vehicles as negligent to the extent of 50% each and thereby, considering the income and other factors, came to the conclusion that the claimant is entitled for an amount of Rs.2,32,000/- towards the compensation with 6% interest from the date of application till realization. Resultantly, the claimant was permitted to recover Rs.1,31,000/- with 6% interest from the present appellant and the owner of the Truck No.GTY-4866, jointly and severally. The learned Tribunal has further permitted the claimant to recover rest of the awarded amount of Rs.1,31,000/- from the original opponent Nos.3, 4 and 5 with interest @ 6%. 5. It is to be noted that neither the claimant has filed any Appeal nor the respondent No.5 – United India Assurance Co. Ltd. has preferred any appeal against the said judgment and award. 5. It is to be noted that neither the claimant has filed any Appeal nor the respondent No.5 – United India Assurance Co. Ltd. has preferred any appeal against the said judgment and award. Meaning thereby, the respondent No.5 – United India Assurance Co. Ltd. has accepted its liability to the extent of 50%. However, the appellant herein – Oriental Insurance Co. Ltd. has approached this Court challenging, inter-alia, the legality and validity of the impugned judgment and award to the extent of holding it liable to pay by holding negligent driver of the vehicle as negligent. 6. Mr.M.J.Shelat, learned advocate for the appellant – Oriental Insurance Co. Ltd., submitted that the learned Tribunal has committed serious error in holding the driver of the truck No.GTY-4866 has negligent, that too to the extent of 50%. Learned advocate also contended that the learned Tribunal has completely overlooked the evidence produced on record which would suggest that the driver of the truck No.GJ-7-X-4253 is solely liable for the accident in question. Mr.Shelat, learned advocate, also submitted that the driver of the truck No.GTY- 4866 was not joined in the proceedings and that the driver of the offending vehicle i.e. Truck No.GJ-7-X-4253, though joined and served, did not appear before the learned Tribunal and not given any evidence so as to deny his negligence. Learned advocate further submitted that the learned Tribunal should not have adopted head-on collision is always a matter of equal fault of the driver of both the offending vehicles. He further submitted that while considering the aspect of contributory negligence, the learned Tribunal should have considered Panchnama of the place and/or topography, if any, produced on record. Learned advocate further submitted that as such, when the driver of the offending vehicle was not examined by the respondent No.5 herein, in that circumstances the learned Tribunal should have drawn adverse inference, rather straightway, in mechanical manner, holding both the drivers of the offending vehicles as contributory negligent to the extent of 50%. However, ultimately, Mr.Shelat, learned advocate, fairly submitted that the negligency of the driver of the truck No.GTY-4866 may be reduced to the extent of 25% from 50%. 7. Per contra, Ms.Hina Desai, learned advocate for the respondent No.5 – United India Assurance Co. Ltd., opposed this Appeal and requested this Court not to disturb the judgment and award passed by the learned Tribunal. 7. Per contra, Ms.Hina Desai, learned advocate for the respondent No.5 – United India Assurance Co. Ltd., opposed this Appeal and requested this Court not to disturb the judgment and award passed by the learned Tribunal. Ms.Hina Desai, learned advocate, further submitted that the accident in question is result of head-on collision of both the trucks involved and, therefore, the learned Tribunal has rightly held both the drivers of the trucks equally responsible for the accident. She further submitted that since two vehicles are involved in the accident, each tort feasor has to compensate the victim and, therefore, the learned Tribunal is justified in attributing 50% negligence to the driver of each truck. She, therefore, ultimately prays for dismissal of appeal being bereft of any merit. 8. I have heard the learned advocates appearing for the respective parties and have gone through the records and proceedings of the learned Tribunal. No other submissions and contentions have been made by learned advocates, except stated herein-above. 9. Having considered the submissions of both the sides and having perused the evidence produced on record, undisputed facts emerging from the record are as under : (1) The driver of the truck bearing No.GTY-4866 insured by the appellant herein – Oriental Insurance Co. Ltd. was not joined in the original proceedings. (2) The driver of the truck bearing No.GJ-7-X-4253 insured by the respondent No.5 – New India Assurance Co. Ltd., though joined, did not appear before the learned Tribunal. (3) The respondent No.5 – New India Assurance Co. Ltd. has not examined the driver of both the vehicles involved in the accident, more particularly the driver of the truck bearing GJ-7-X-4253, so as to deny the negligency on the part of driver of the vehicle insured by it. 10. In view of the aforesaid facts, in my considered opinion, the learned Tribunal has committed serious mistake in attributing contributory negligence to each of the drivers of the offending vehicles. The learned Tribunal ought to have appreciated that the driver of the truck bearing No.GTY-4866 has not come forward and/or the respondent No.5 herein – insurer of that truck, has also not made any effort to examine the driver so as to deny the negligency on his part. As per the settled law, in case of non-rebuttal and/or denial, an adverse inference requires to be drawn. As per the settled law, in case of non-rebuttal and/or denial, an adverse inference requires to be drawn. Thus, merely there was a collision of two vehicles, that ipso facto would not make the drivers of both the vehicles liable equally. In the instant case, when there is no rebuttal and/or denial or any contrary evidence, the learned Tribunal should have drawn adverse inference against the respondent No.5 – New India Assurance Co. Ltd., more particularly when the driver of the truck bearing No.GTY-4866 was not at all made party respondent in the proceedings. It is a matter of first principle that while holding negligent in driving, the parties are supposed to be joined in the present proceedings. However, in the instant case, as noted herein-above, the driver of the truck bearing No.GTY-4866 was admittedly not joined. Therefore, in my view, the learned Tribunal could not have held responsible and/or attributed any contributory negligency to the person, who was not party to the proceedings. 11. As such, as discussed herein-above, the driver of the truck bearing No.GTY-4866 insured by the appellant herein – Oriental Insurance Co. Ltd. could not have been held negligent without joining him as a party to the proceedings. However, considering the statement made by Mr.M.J.Shelat, learned advocate, that he will be satisfied if the negligency on the part of driver of the vehicle – truck bearing No.GTY- 4866 is reduced to 25% from 50%. Considering the fact that ultimately the contesting parties are the Insurance Companies being Government undertaking, balance is required to be struck and thereby, adopting the statement of Mr.Shelat, learned advocate for the appellant, the judgment and award passed by the learned Tribunal is hereby modified to the extent holding the appellant – Oriental Insurance Co. Ltd. as negligent to the extent of 25% and the respondent No.5 herein – New India Assurance Co. Ltd. shall be negligent to the extent of 75%. Thus, the claimant is allowed to recover 25% amount from the appellant – Oriental Insurance Co. Ltd. and 75% of amount from the respondent No.5 herein – New India Assurance Co. Ltd. 12. In the result, the present First Appeal is partly allowed. The judgment and award of the learned Tribunal is hereby modified in terms stated herein-above. Thus, the claimant is allowed to recover 25% amount from the appellant – Oriental Insurance Co. Ltd. and 75% of amount from the respondent No.5 herein – New India Assurance Co. Ltd. 12. In the result, the present First Appeal is partly allowed. The judgment and award of the learned Tribunal is hereby modified in terms stated herein-above. The learned Tribunal is directed to refund 50% amount, from the amount so deposited pursuant to the award to the appellant – Oriental Insurance Co. Ltd. and rest of the amount shall be paid to the claimant by way of account payee cheque. Similarly, the respondent No.5 herein is hereby directed to pay additional amount of 25% within a period of 8 weeks from the date of receipt of writ of this order and in turn, the same shall be paid to the claimant by way of account payee cheque, after due verification. R & P be sent back forthwith to the concerned Tribunal.