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2025 DIGILAW 72 (GUJ)

Anil Manubhai Mehta v. Abdulbhai Jusabbhai

2025-02-06

BIREN VAISHNAV, DEVAN M.DESAI

body2025
JUDGMENT : DEVAN M. DESAI, J. 1. These captioned First Appeals are filed challenging the common judgment and award dated 31.07.2009 passed by the learned Motor Accident Claims Tribunal-Main, Surendranagar in Motor Accident Claim Petition Nos. 67 to 69 of 1998. The First Appeal No.4540 of 2010 is filed by the appellants- original claimants of MACP No.67 of 1998 and First Appeal Nos.1180 of 2010 is filed by the appellant-Insurance Company and First Appeal 4541 of 2010 is filed by the appellants-original claimants of MACP No.68 of 1998. 2. Heard learned advocate Mr. Kiran C. Mehta for the appellant/s and learned advocate Mr. G.C. Mazmudar for respondent/s. 3. Since the issue involved in the captioned First Appeals are on the identical facts, upon the request of learned advocates for the respective parties, all appeals are decided together. 4. The brief facts of the case are as under:- 4.1. On 17.12.1997, claimant No.1 with his wife and two children started his journey from Ahmedabad to Surendranagar in Maruti fronty Car bearing Registration No.GJ-13-A-0280. When the said car reached near Lakhtar, a truck bearing Registration No.GRP-4712 was coming on wrong side of the road in a very high speed and also in a rash and negligent manner. When the driver of the Maruti fronty car namely claimant No.1-Anil Manubhai Mehta saw the truck coming from opposite direction on wrong side, he took his car on extreme left side i.e. on the Kachcha road. However, there was headon collusion between the two vehicles and because of the high speed of the truck, the Maruti fronty car got turtled in a ten feet ditch on the left hand side of the road, resultantly, the claimant No.1-Anil Manubhai Mehta and his two minor children sustained serious injuries and wife of the claimant No.1-Nimishaben succumbed because of injuries. Three claim petitions were filed by claimants namely MACP No.67 of 1998 by the heirs of deceased-Nimishaben claiming compensation of Rs.30,00,000/- from the opponents. MACP No.68 of 1998 was filed by Anil Manubhai Mehta claiming compensation of Rs.9,70,000/- for sustaining injuries out of the accident and MACP No.69 is filed by the Minor Upasi through her guardian for claiming compensation of Rs.35,000/- Insurance Company appeared and filed Written Statement at Exhibit-10. Driver-cum- owner of the truck did not contest the application. Issues were framed at Exhibit-17. Claimants produced FIR at Exhibit-83 and Panchnama at Exhibit-84. Driver-cum- owner of the truck did not contest the application. Issues were framed at Exhibit-17. Claimants produced FIR at Exhibit-83 and Panchnama at Exhibit-84. Since all claim petitions were arising out of the same accident, by common judgment and award dated 31.07.2009, learned Tribunal-Main-Surendranagar partly allowed claim applications. Learned Tribunal awarded Rs.7,60,000/- as compensation in MACP No.67 of 1998 and after holding the driver of the Maruti fronty car negligent at 30% awarded compensation Rs.5,32,000/- with 9% from the date of the application till realization. In MACP No.68 of 1998, learned Tribunal awarded Rs.8,49,400/- as compensation which includes damage to the Maruti fronty car to the tune of Rs.1,00,000/- and after holding the driver of the Maruti fronty car negligent at 30% awarded compensation Rs.5,94,580/- with 9% from the date of the application till realization. 4.2. In Motor Accident Claim Petition No.69 of 1998, learned Tribunal awarded Rs.15,000/-/- as compensation and after holding the driver of the Maruti fronty car negligent at 30% awarded compensation Rs.10,500/- with 9% from the date of the application till realization. No appeal is preferred against the judgment and award passed in MACP No.69 of 1998 by either of the parties. 4.3. Being aggrieved and dissatisfied with the findings of holding driver of the Maruti car 30% negligent, appeals are filed by the claimants being First Appeal No.4540 of 2010 and First Appeal No.4541 of 2010. Insurance Company challenged the award of granting damage to the Maruti fronty car by filing First Appeal No.1180 of 2010. 5. Learned advocate for the appellant-original claimants submitted that learned Tribunal has committed an error by holding driver of Maruti fronty car negligent to the extent of 30%. To substantiate his submissions, learned advocates has placed reliance upon the panchnama at Exhibit-51 and the oral deposition of claimant No.1 who also happens to be an eye-witness. It is the case of the claimants that on seeing the truck coming in rash and negligent manner and that to on the wrong side of the road, he slowed down his car and went on the extreme left edge of the road to avoid the collusion. However, the truck was coming in such a speed that Maruti fronty car was thrown in ten feet deep ditch. As per the panchnama, the car was found 80 feet away from the point of impact. However, the truck was coming in such a speed that Maruti fronty car was thrown in ten feet deep ditch. As per the panchnama, the car was found 80 feet away from the point of impact. The driver of the offending truck has not come forward and deposed on oath on the count of negligence. In absence of any contrary evidence, learned Tribunal has erred in deciding the question of negligence. It is further submitted that if the finding of negligence at 30% is set aside, claimants would not claim any compensation except future loss of income, actual loss of income, special diet food, pain shock and suffering and damage to the car. 6. Learned advocate for the Insurance Company submitted that findings which have been arrived at by the learned Tribunal on the issue of negligence may not be disturbed in the background of the evidence available on record. It is further pointed out that learned Tribunal has rightly considered the negligence of the driver of the Maruti fronty car at 30%. By way of appeal, the Insurance Company has challenged the award of Rs.1,00,000/- which is passed by the learned Tribunal under the head of damage to the car. It is submitted that Insurance Company of the Maruti Car has settled the claim of damage to the car and has awarded Rs.1,50,000/- to the claimants under the own damage policy. It is submitted that when the claimant is already compensated by another Insurance Company for the same cause of action consequent to the same accident, the respondent’s claimants are not entitled to double payment of compensation and relied upon a decision in the case of National Insurance Company Limited Vs. Sebastian K. Jacob, (2009) 4 Supreme Court Cases 778. 7. We have considered the submissions canvassed by the learned advocates for the parties and perused the record and proceedings. While determining compensation, one of the aspects which is required to be taken into consideration is the question of negligence. The amount of compensation, other than other factors, is dependent upon the issue of negligence.When the offending vehicle is found negligent in the occurrence of accident, which has resulted into a death or bodily injury of any person, the Insurer of the offending vehicle is required to compensate the affected parties by paying compensation. The amount of compensation, other than other factors, is dependent upon the issue of negligence.When the offending vehicle is found negligent in the occurrence of accident, which has resulted into a death or bodily injury of any person, the Insurer of the offending vehicle is required to compensate the affected parties by paying compensation. In the present case, while assessing the papers and more particularly, the oral deposition of Anil Manubhai Mehta and the panchnama of the scene of accident, it can be culled out that truck was not only coming at an excessive speed but also coming on the wrong side of the road. The impact of dashing of truck with the car was such that the car was thrown away at the distance of 80 feet and also got turtled in a ten feet deep ditch on the left side of the road. The oral deposition of the claimant, who happens to be an eye witness of the accident, on the fact that when he saw the truck coming on the wrong side of the road at an excessive speed, he not only slowed the car but also took his car on the left side of the road which was a Kachcha road to avoid the mishap. To controvert the above aspect, there is no fruitful cross-examination by the insurer of the truck and more particularly, the driver of the truck has not been examined. The panchnama also reflects the condition of both the vehicles. As per panchnama, the driver side of the car from front to rear seat was torn. The discussion on this important evidence, in our opinion, is missing in the judgment. Looking to the facts of the case and considering the evidence on record, we are of the view that the driver of the Maruti fronty car was not negligent in the occurrence of accident and it was the sole negligence of the driver of the truck in causing the accident and therefore, we are inclined to interfere in the finding of negligence. We hold that the driver of the truck is the sole negligent and the judgment and award holding driver of the Maruti fronty car to the extent of 30% is hereby quashed and set aside. 8. The submission of learned advocates Mr. We hold that the driver of the truck is the sole negligent and the judgment and award holding driver of the Maruti fronty car to the extent of 30% is hereby quashed and set aside. 8. The submission of learned advocates Mr. H.G. Majmudar for the Insurance Company regarding double payment of compensation under the head of loss to the car being erroneous, has a force and in the case of National Insurance Company Limited (supra) , in paragraph Nos.3 and 6, the Apex Court has observed as under:- “3. According to the appellant, the insurer is not liable to make the payment since the claimant is already compensated by another insurance company by paying Rs. 21,700 for the same cause of action consequent to the same accident. Therefore, it was submitted that the respondent was not entitled to double payment of compensation. The High Court did not accept the plea and upheld the award of MACT. 6. It conceded that if there is difference of amount the appellant has to pay the same, but that is not the case in the present scenario. The claimant claims the whole amount. The earlier payment is not disputed. In fact, Oriental Insurance Company Ltd. has clearly accepted that the vehicle collided with a stage carriage on 13-7-1995 and the damage claim was settled for Rs. 21,700 on 6-12-1995. The High Court does not appear to have considered this aspect in the proper perspective. Therefore, we set aside the impugned order of the High Court and remit the matter to it for fresh consideration.” The Apex Court has observed that when in respect of very same claim, matter is settled by another Insurance Company and when the claimant has accepted the claim amount from another Insurance Company, there was no scope for granting further relief. In the present case, the claimants have undisputedly received an amount of Rs.1,50,000/- under the head of damage to the car from another Insurance Company, and there is no conflict raised by the learned advocate for the claimant with regard to the aforesaid settled position of law, we are of the opinion that award to the extent of Rs.1,00,000/- under the head of damage to the car is required to be quashed and set aside. 9. 9. Since learned advocates for the appellant/s has fairly conceded that claimant would not claim any further and more compensation, except, the heads under which compensation has been allowed by learned Tribunal, we are not delving into the exercise of calculation of compensation on other heads. 10. Claimants of First Appeal No.4540 of 2010 are entitled to following amount of compensation: Particulars Amount in Rs. Calculated Compensation Rs. 7,60,000/- Less Awarded Compensation Rs. 5,32,000/- The difference amount of compensation Rs. 2,28,000/- The Insurance Company shall pay an amount of Rs.2,28,000/- to the claimant/s @ 9% per annum from the date of filing of the claim petition till realization within a period of four weeks from the date of receipt of the copy of this order. 11. Claimants of First Appeal No.4541 of 2010 are entitled to following amount of compensation: Particulars Amount in Rs. Calculated Compensation Rs.8,49,400/- Less Awarded Compensation Rs.5,94,580/- Less Compensation towards damage to the Car Rs.1,00,000/- The difference amount of compensation Rs.1,54,820/- The Insurance Company shall pay an amount of Rs.1,54,820/- to the claimant/s @ 9% per annum from the date of filing of the claim petition till realization within a period of four weeks from the date of receipt of the copy of this order. 12. In view of the above facts, all captioned three First Appeals are allowed. No order as to costs. Record and proceedings to be sent back to the concerned Court/Tribunal concerned.