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C/FA/199/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 199 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== NEW INDIA ASSURANCE CO.LTD. Versus GIRIRAJSINH UDAYSINH JADEJA DECED. THROUGH LEGAL HAIRS & 5 other(s) ========================================================== Appearance: MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1 DECEASED LITIGANT(100) for the Defendant(s) No. 1 DELETED(20) for the Defendant(s) No. 2 MR ANAL S SHAH(3988) for the Defendant(s) No. 4 MR Y J PATEL(3985) for the Defendant(s) No. 1.1 MS MEGHA JANI(1028) for the Defendant(s) No. 4 RULE SERVED(64) for the Defendant(s) No. 5,6 RULE UNSERVED(68) for the Defendant(s) No. 3 ========================================================== CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 27/09/2019 ORAL JUDGMENT 1. The appellant—insurance company has assailed judgement and award dated 14.09.2005 passed by the Motor Accident Page 1 of 7
C/FA/199/2006 JUDGMENT Claims Tribunal, Gandhidham-Kutch in MACP No. 232 of 2002 whereunder, the claim petition preferred by the respondent No.1 herein is partly allowed and the appellant and respondents No.2 to 6 are directed to pay a sum of Rs. 3,51,000/- with 9% interest to respondent No.1 jointly and severally. 2. Facts, as could be gathered from the impugned judgement are that, on 21.03.2002, respondent No.1 along with respondent No. 4 and others were going towards Rajkot in car bearing registration no. GJ 12 E 9291. Respondent No.4 was driving the car. When the car reached near village Kataria on National Highway No. 8A, respondent No.2 herein came with truck bearing registration No. GR0 4633 from the opposite direction on a very high and excessive speed and dashed with the car. Respondent No.1 suffered serious bodily injuries in the accident. At the time of the accident, the car, in which, respondent No.1 was travelling, was of the ownership of respondent No.6 which was insured with the appellant- insurance company while the offending truck was of the ownership of respondent No.3 herein which was insured with respondent No.4-insurance company herein. Respondent No.1 therefore, filed a claim petition being MACP No. 332 of 2002 in the Motor Accident Claims Tribunal, Gandhidham, to recover a sum of Rs. 8 lacs with interest from respondents No.2 to 5 and the appellant. The Tribunal, by the impugned judgement and award, partly allowed the claim petition as Page 2 of 7
C/FA/199/2006 JUDGMENT aforesaid, and directed the appellant and other respondents to pay compensation to respondent No.1 jointly and severally. 3. The appellant-insurance company has assailed the impugned judgement of the Tribunal essentially on the issue of contributory negligence and the quantum of compensation. 4. I have heard Mr. Palak Thakkar, learned advocate for the appellant insurance company, Mr. Y.J.Patel, learned advocate for respondent No.1-original claimant and Mr. Aanal Shah learned advocate for respondent No.4-insurance company. There is no representation on behalf of other respondents despite service of notice of appeal. 5. Mr. Palak Thakkar, learned advocate for the appellant vehemently submitted that the Tribunal has committed serious error in attributing negligence on equal proportion on the part of respondent No.3 and respondent No.5. He submitted that the Tribunal ought to have attributed greater negligence on the part of the respondent No.2 as he was the driver of truck which was a bigger vehicle. It is his submission that in fact, the accident had happened because of sole negligence on part of respondent No.1 as is emerging from the panchnama of place of incident. It is his submission that the accident had taken place at tri section while the car, in which, respondent No.1 travelling tried to take a turn and therefore, the driver of the truck i.e. respondent No.2 was solely responsible for the Page 3 of 7
C/FA/199/2006 JUDGMENT accident. He further submitted that the Tribunal has considered income tax returns in respect of Financial Years 2002-03 and 2003-04 which are after the date of the accident. He therefore, urged that the appellant-insurance company be exonerated or in the alternative, lesser negligence be considered on the part of respondent No.5 herein. 6. Mr. Y J Patel, learned advocate for respondent No.1 original claimant and Mr. Shah learned advocate for respondent No.4- insurance company supported the impugned judgement and award. They submitted that the impugned judgement and award does not warrant any interference in this appeal. 7. I have given thoughtful consideration to the submissions made at the bar. 8. The main contention on part of the Mr. Thakkar learned advocate for the appellant is that it was respondent No.2-driver of the truck who was solely responsible for the accident. He has tried to buttress his submission by submitting that on the basis of panchanama of the place of accident, the left side of the Truck was damaged which indicates that while the Truck left, it is clear that car was not trying to take a turn, and the truck collided with it. He also tried to submit that as respondent No.2 had not stepped into witness box and that the FIR was filed against respondent No.2, it was he who was solely responsible for the accident. Page 4 of 7
C/FA/199/2006 JUDGMENT 9. The submission of Mr. Thakkar does not merit acceptance. It emerges from the panchnama of place of accident that respondent no.2 had moved the offending truck on a side of the road before fleeing from the place of accident. It is thus very clear from the panchnama of the place of accident that when the panchnama was prepared, the Truck was not lying at the very spot where the accident had happened. Merely because the damage was caused on the left side of the truck and that the truck driver had not stepped into the witness box, it cannot be assumed that it was a truck driver who was solely responsible for the occurrence of the accident. It is a trite law that in civil matters, the Court has to consider the evidence adduced by the parties on the touchstone of preponderance of probabilities as against the strict proof beyond reasonable doubt in criminal case. The Tribunal has independently assessed and analyzed the ocular and documentary evidence available on the record to conclude that the accident had happened because of negligence on the part of both the drivers of the offending vehicles involved in the accident and the drivers were negligent in equal proportion. Merely because the driver of the truck was prosecuted for the accident would not deter the Tribunal from independently assessing the extent of negligence on the drivers of the respective vehicles. The Tribunal has assigned cogent reasons and coupled with the fact that in the panchnama Exh 47 itself it is recorded that respondent No.1, after the accident, had parked the offending truck on the side of the road . I am of the view that the Page 5 of 7
C/FA/199/2006 JUDGMENT Tribunal has not committed any error in attributing negligence in equal proportion on the part of respondent No.2-driver of the truck and respondent No.5 herein driver of the car which was insured with the appellant insurance company in which, respondent No.1 victim was travelling. 10. So far as the income of respondent No.1 is concerned, in my view, the Tribunal has rightly considered the two income tax returns Exh 49 and 50. Exhibit 49-income tax return is in respect of FY 2002-03 while Exh 50 is the income tax return in respect of FY 2003-04. The accident had occurred on 21.03.2002. Therefore, the income tax return in respect of FY 2002-03 in which, Rs. 1,83,239/- is disclosed while in income tax return Exh 50 in respect of FY 2003-04 the income is of Rs. 1,57,734/- is disclosed. As per the evidence available on the record, respondent No.2-claimant was running security service and was also doing work of transportation. Therefore, the business of the original claimant was a running business. Moreover, the Tribunal has considered Rs. 1,50,000/- as the average income on the basis of Exhs 49 and 50 income tax returns. Even if the income tax return for financial year 2003- 04 is ignored, the income which was disclosed in income tax return for FY 2002-03 was Rs. 1,83,000/- which was well within Rs. 1,50,000/- assessed by the Tribunal. Therefore, in my view, the income assessed by the Tribunal also does not warrant any interference. Page 6 of 7
C/FA/199/2006 JUDGMENT 11. Tribunal has assigned cogent reasons for attributing negligence in equal proportion on the part of the respondent No.1 and respondent No.5 herein and, in my view, the Tribunal has rightly relied upon the income tax returns in respect of FYs 2002-03 and 2003-04 i.e. Exh 49 and 50 respectively to asses the income of the deceased-original claimant. The impugned judgement and award therefore does not warrant any interference in this appeal. 12. For the foregoing reasons, the appeal lacs merit and is hereby dismissed. However without cost. R & P be transmitted to the Tribunal forthwith. (A.G.URAIZEE, J) JYOTI V. JANI Page 7 of 7