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FA/61920/2009 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 619 of 2009
With
CIVIL
APPLICATION No. 1572 of 2009
In
FIRST APPEAL No. 619 of 2009
=========================================================
BHURABHAI
GANGABHAI MER - Appellant(s)
Versus
STATE
OF GUJART & 2 - Defendant(s)
=========================================================
Appearance
:
MR
RAJESH O GIDIYA for
Appellant(s) : 1,
GOVERNMENT PLEADER for Defendant(s) : 1,
None
for Defendant(s) : 2,
MR RITURAJ M MEENA for Defendant(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/05/2009
ORAL
ORDER
Heard
learned Advocate Mr. Gidiya for appellant, learned AGP Ms. Manisha
Narsinghani for respondent NO.1 State authority as well as Mr.
Rituraj M. Meena for respondent no.2.
By
filing this appeal, appellant is challenging award made by claims
tribunal, Rajkot in claim petition no.305 of 1995 dated 10th
November, 2006 wherein claims tribunal has awarded total
compensation of Rs.79,670.00, out of which Rs.6000.00 were to be
paid jointly and severally by opponents no.1 and 2 and rest of the
amount of Rs.73670.00 is payable by opponent NO.1 to claimant with
proportionate costs of the application.
Learned
Advocate Mr. Gidiya for appellant submitted that the insurance
company is liable to pay the compensation for damages caused to
Ambassador Car by the truck. He submited that the claims tribunal
has committed gross error in not appreciating evidence Exh. 26
wherein evidence of the driver Mangilal Bhuralal was recorded on
behalf of the applicants. He submitted that the reasoning given by
the claims tribunal is contrary to the evidence on record.
On
the other hand, Ms. Narsinghani, learned AGP for the respondent
State Authority has made submissions while supporting impugned
award.
I
have considered submissions made by learned advocate Mr. Gidia for
appellant as well as learned AGP Ms. Narsinghani for respondent
State Authority. I have also perused impugned award made by claims
tribunal.
Before
claims tribunal, present appellant has appeared in person and no
advocate was engaged by appellant. Facts of claim petition filed by
claimant were to the effect that the Government Ambassador Car
bearing Registration No. GJ.1527.89 dashed with truck no.
GJ.11.T.8694 on 5.10.1994 near Patiya of village Ratanpur within the
limits of Rajkot Taluka Police Station. Therefore, on 6.10.94,
before Rajkot Taluka Police Station, offence was registered at CR
NO.494 of 1994. In connection with said accident, claim petition was
filed by claimant contending inter alia that the aforesaid truck of
opponent was coming towards Rajkot from Ratanpar Patiya and the
vehicle of the claimant was behind said truck and opponent no.1 had,
all of a sudden, without giving any type of signal, stopped said
truck on road by making lights off and therefore, said vehicle of
claimant had dashed with said truck and thus it was alleged that the
accident has taken place because of the negligence on the part of
the opponent no.1.
Before
claims tribunal, reply was filed by present appellant at Exh. 15 and
at exh. 17, reply was filed by insurance company wherein it was
denied that the accident had taken place as alleged. It was
contended by insurance company that there has been breach of the
terms and rules of insurance policy and in this matter, if it is
believed that there has been any negligence of the truck operator,
then, policy of the truck being Act Policy, their responsibility
cannot exceed the statutory liability to pay compensation.
Issues
were framed by the claims tribunal at Exh. 18 wherein issue no.1 was
relating to negligence. For deciding issue no.1, claims tribunal
considered documents namely FIR Exh. 46, Panchanama Exh. 47, RC Book
of truck Exh. 49, driving licence of truck operator Exh. 49,
insurance policy of truck Exh.33 and 43, extract of tariff of
insurance policy Exh. 43, policy of ambassator Exh.55, letter of
estimate of damage to ambassator Exh. 50, letter cancelling
registration Exh. 51, statement of pool vehicles Exh. 52, letter
regarding repairing of vehicle Exh.54, letter of auction of damaged
vehicle Exh.56 and driving licence of driver of ambassador Exh. 27.
For deciding negligence amongst two vehicles, claims tribunal
considered panchanama Exh. 47 and observed that the accident has
taken place on 24 ft. road and both the vehicles are on the edge of
the road and truck was at the distance of one and half ft. from road
whereas ambassador car was at the distance of two and half ft. away
from road and truck was ahead by eight and half ft. from ambassador
and there is Nala 12 ft. away from there and as per panchanama,
indicator of truck were not on nor any boundary wall was made around
it and considering panchanama, it was also observed by the claims
tribunal that operator of ambassador car applied brake upto
seventeen and half ft. and made attempt to avoid accident and on
that basis, observed that at the time of accident, ambassador car
must be in speed and, therefore, looking to the time of accident,
nature of vehicles and position on the site as per panchanama and
non examination of the driver of truck on behalf of the opponent in
particular, claims tribunal held that the driver of the truck was
negligent to the extent of 70 per cent and driver of ambassador car
was negligent to the extent of 30 per cent and claims tribunal
decided issue of negligence accordingly.
While
considering issue no.2 and 3, claims tribunal considered deposition
of Mangilal Bhuralal Exh. 26 wherein it was deposed by him that
because of the accident, too much damage has been caused to the
Ambassador car and the damages were assessed through Police MT
Section Workshop at Gandhinagar and as per the said assessment,
damage worth Rs.1,38,815.00 was caused to the said car which was
challenged during the course of his cross examination. Claims
tribunal also considered deposition recorded on behalf of the
applicant at Exh. 30 given by employee of Ahmedabad ATS Shri
Hasmukhbhai Keshavbhai who deposed that the assessment of damages
caused to the car in accident was done through Police MT Section at
Gandhinagar and car had suffered damages worth Rs.1,38,815.00 and
from his cross examination, it was disclosed that the said
Ambassador car was of the year 1991 but he is not having the
evidence about purchase price thereof and from the Government
vehicle, depreciation is being deducted every year and prior to
accident, what was the value thereof on the books of the Government,
he is not having idea. Thereafter, after considering the FIR Exh. 46
and panchanam Exh. 47 as well as leter of the Police Commissioner
Exh. 50 dated 17.2.1995, claims tribunal observed that the
Government vehicle of the claimant had suffered more damages than
what was shown in the panchanama and then after considering the
letter of the Police Commissioner Exh. 56, after accident, said
ambassador was not repaired and it was opined by concerned authority
to cancel the same and after it was placed in public auction, it was
not sold at the price less than 20 per cent and therefore, by making
lot of total five vehicles, with 75% less, they were sold in public
auction on 11.7.2001 at Rs.1,08,672.00 and estimated scrap price of
the said vehicle of Rs.25000.00 and then held that deducting the
said amount of salvage of Rs.25,000.00 from Rs.1,38,815.00, claimant
has suffered loss of Rs.1,13,815.00 and then deducted 30 per cent
amount therefrom towards contributory negligence of the driver of
claimant and held that the claimant is entitled for Rs.79670.00 from
opponents. Then, considering the submissions made on behalf of the
insurance company of the truck and policy of the truck Exh. 42 which
was an Act Policy wherein additional premium was not paid in respect
of third party damage and then claims tribunal considered extract of
insurance premium tariff Exh. 43 and held that therefore, as per
section 147(2)(B) of the MV Act, statutory liability of the
insurance company to pay compensation cannot exceed than Rs.6000.00
and, therefore, held that out of total amount of compensation
available to claimant of Rs.79670.00, opponents no. 1 and 2 are
liable to pay Rs.6000.00 jointly and severally and remaining amount
is payable by opponent NO.1 alone i.e. Present appellant with
interest thereon at the rate of 9 per cent per annum and answered
issue no.2 accordingly.
Considering
the award, appellant was not remaining present before the claims
tribunal at the time of making submissions and claims tribunal has
rightly examined matter and has rightly decided negligence between
ambassador car driver and truck driver after considering panchanama
Exh. 47 and claims tribunal has rightly came to the conclusion that
the truck driver is liable to the extent of 70 per cent and driver
of ambassador car is liable to the extent of 30 per cent and in
doing so, no error has been committed by the claims tribunal. Claims
Tribunal has also rightly considered insurance policy in respect of
the truck as well as extract of insurance premium tariff and has
rightly held that the insurance company of the truck is liable
only for Rs.6000.00 and appellant opponent no.1 is liable for
payment of remaining amount with interest as awarded by claims
tribunal. Such findings recorded by the claims tribunal are based on
appreciation of oral and documentary evidence on record and same are
not contrary to evidence on record and learned Advocate Mr. Gidiya
for appellant has not been able to point out that such findings are
perverse and contrary to evidence on record. Therefore, there is no
substance in this appeal and same is required to be dismissed.
In
result, this petition is dismissed.
Today,
this Court has dismissed appeal and, therefore, civil application
for stay is disposed of accordingly. Amount, if any, deposited by
appellant be transmitted to claims tribunal immediately.
(H.K.
Rathod,J.)
Vyas
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