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FA/1725/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1725 of 2011
With
CIVIL
APPLICATION No. 6468 of 2011
In
FIRST
APPEAL No. 1725 of 2011
=======================================================
ORIENTAL
INSURANCE COMPANY LIMITED - Appellant(s)
Versus
MUKESHBHAI
BUDHABHAI GURJAR & 2 - Defendant(s)
=======================================================
Appearance :
MR FOJDAR for MR
SHALIN N MEHTA for Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 22/07/2011
ORAL
ORDER
The
present First Appeal has been filed by the appellant-Insurance
Company challenging the impugned Judgment & Award passed in
M.A.C.P. No.907 of 2001 by the Presiding Officer, Fast Track Court
No.2, Ahmedabad (Rural) at Mirzapur, Ahmedabad awarding compensation
of Rs.4,78,336.00 along with interest on the grounds set out in the
memo of appeal.
Heard
learned counsel, Ms.Fojdar for learned counsel, Mr.Shalin Mehta for
the appellant-Insurance Company.
Learned
counsel, Ms.Fojdar has stated that the impugned award has been
assailed mainly on the ground of aspect of negligence. She referred
to the papers and pointed out that while fixing 80% of the liability
of the driver of Metador, the learned Judge has fixed only on the
basis that Metador is big vehicle. She pointedly therefore referred
to these observations and submitted that there is no eyewitness and
other evidence and considering the facts and circumstances, the
Appeal has been filed restricting the claimant for Rs.1,79,000/-.
She has also submitted that as per the discussion in the panchnama
of the place of incident, Exh.49, there was hit and collusion, which
is admitted fact. Therefore, the negligence or the liability of the
driver of the Metador could not have been fixed at 80% and normally,
it is depending upon the exact nature and manner in which the
accident has occurred. She, therefore, submitted that the present
Appeal may be admitted.
Though
these submissions have been made, there is no doubt that while
giving reason, the learned Judge has stated that the liability of
the driver of the Metador should be taken to the extent of 80% as he
was having big vehicle comparing to the scooter, however, it has to
be read in context in the discussion about the other evidence and
referring to the evidence of the applicant as well as panchnama
about the place of incident. It is evident that whole front side of
the scooter was damaged and at the time of panchnama, the offending
vehicle was not found at the place, meaning thereby, the driver of
the offending vehicle ran away with the vehicle. It is also observed
that therefore the damage to the vehicle has not been assessed. Had
the driver of the Metador remained present with Metador at the place
of incident, it would have revealed about the exact position of the
Metador as well as the damage, from which, it could also be
ascertained for his liability. Therefore, as the driver of the
vehicle fled away with vehicle (Metador), the present appeal, who is
insurer of the said vehicle in question, cannot be heard to say on
the aspect of negligence. Admittedly, the driver of the Metador has
also not stepped into the witness box.
It
is in these circumstances, these contentions, which have been
raised, are devoid of any merits and do not call for any
interference in the First Appeal when considering the award as a
whole, over all assessment of the evidence is just and proper.
In
the circumstances, the present First Appeal deserves to be dismissed
in limine and accordingly stands dismissed in limine.
In
view of the dismissal of First Appeal, Civil Application for stay
does not survive and stands disposal of accordingly.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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