IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL No 1605 of 1983
with
FIRST APPEAL No 1634 of 1983
to
FIRST APPEAL No 1636 of 1983
For Approval and Signature:
Hon'ble MR.JUSTICE B.J.SHETHNA
and
Hon'ble MR.JUSTICE N.G.NANDI
============================================================
1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
————————————————————–
ORIENTAL FIRE AND GENERAL INSURANCE CO.LTD.
Versus
VISHNUPRASAD C SONI
————————————————————–
Appearance:
1. First Appeal No. 1605 of 1983
MR ASPI KAPADIA for MR SB VAKIL for Petitioner No. 1
MR KIRIT I PATEL for Respondents No. 1-2
MR SN SHELAT for Respondent No. 3
NOTICE SERVED for Respondents No. 4-5
2. First Appeal No. 1634 of 1983 to 1636 of 1983
MR HARDIK C RAWAL for Petitioner No. 1
NOTICE SERVED for Respondent No. 1
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CORAM : MR.JUSTICE B.J.SHETHNA
and
MR.JUSTICE N.G.NANDIDate of decision: 10/01/2002
ORAL JUDGEMENT
(Per : MR.JUSTICE B.J.SHETHNA)#. All these appeals are disposed of by this common
order as the same are arising out of the common judgment
and award dated 20.1.1983 passed by the learned Motor
Accident Claims Tribunal (Main), Banaskantha, District
Palanpur, whereby the learned Tribunal decided Motor
Accident Claim Petitions No.79 and 90 of 1981.
#. First Appeal No.1605/93 has been filed by the
appellant-The Oriental Fire & General Insurance Company
Limited only against the award passed by the learned
Tribunal in Motor Accident Claims Petition No.90/81
whereby the original claimant No.1-Vishnuprasad Chandulal
Soni was ordered to recover Rs.90,000/= with
proportionate costs of the application and interest @6%
p.a. from the date of application till the date of
realisation from the original opponent Nos. 1, 2, 3 and
4 and the liability of the opponent Nos.1 and 2 i.e.
State Road Transport Corporation and its driver Rajput
Nathuji was fixed at 40% and the liability of opponent
Nos.3 and 4 i.e. Gulzarkhan, driver of auto-rickshaw and
appellant insurance company was fixed at 60%.
#. The First Appeal No.1634/83 is filed by the
appellant-Gujarat State Road Transport Corporation
against the award passed by the learned Tribunal in MACP
No.90/81. First Appeal No.1635/83 was filed against the
judgment and award passed by the learned Tribunal in MACP
No.88/81 whereby the respondent-Claimant Smt.Manjulaben
Bhailalbhai Soni was awarded only Rs.6,800/= with
proportionate costs of the application and interest @6%
p.a. and the claimant No.2 was paid Rs.1,200/=.
#. The First Appeal No.1636/83 is filed by the
appellant-Gujarat State Road Transport Corporation
against the impugned judgment and award passed by learned
Tribunal in MACP No.79/91 whereby the respondent-claimant
was awarded Rs.11,700/= with proportionate costs of the
application and interest @6% p.a. from the date of the
application till the date of realization.
#. The First Appeal Nos.1635 and 1636 of 1983 are
straightway required to be dismissed because petty amount
is involved in these matters. However, common question
involved in all these appeals, therefore, we are required
to decide two other first appeals i.e. First Appeal
No.1634/93 filed by the appellant-Corporation against the
award passed in MACP No.90/81 and First Appeal No.1605/83
filed by the appellant insurance company in the claim
petition.
#. Learned counsel Shri Hardik Raval for the
appellant-Corporation in First Appeal No.1634 to 1636 of
1983 initially tried to challenge the quantum part of the
learned Tribunal whereby the learned Tribunal awarded
Rs.90,000/= in MACP No.90/83 but having regard to the
evidence led by the parties in the case and the reasons
assigned by the learned Tribunal for awarding the amount
he was not in a position to assail the quantum part.
However, he vehemently tried to submit that the learned
Tribunal was wrong in attributing 60% negligence to
auto-rickshaw driver. He submitted that in the instant
case 40% negligence could not have been attributed to the
driver of the State Transport bus because from the
finding recorded by the Tribunal itself it is clear that
by and large auto-rickshaw driver was solely responsible
for the accident.
#. From the evidence and the judgment of the learned
Tribunal it is clear that the accident took place when
S.T. bus came out all of a sudden from the side road on
the main highway and when it was entering the highway at
that point of time the auto-rickshaw collided with it and
thereby the accident took place. From the scene of
offence, it is clear that the highway between Palanpur
and Balaram was 30 ft. in breadth and also it has got 5
ft. kutcha road on each side and on the corner of
Malana-Palanpur highway road, there were blood stains and
the pieces of the glass were there. That shows that the
collision took place in the midst of the highway and at
the place where there was crossing from Malana side
towards the highway. Under the circumstances, it cannot
be said that the learned Tribunal was in error in
attributing 40% negligence to S.T. Driver. In our
considered opinion the learned Tribunal has rightly
awarded the compensation, which does not call for any
interference of this court in these appeals. Except the
aforesaid two contentions, no other contention was raised
by learned counsel Mr.Raval for the appellant-Corporation
in all these three appeals and, therefore, all these
three appeals are required to be dismissed.
#. This brings us to the First Appeal No.1605/83 filed
by the appellant-insurance company. Shri Kapadia for
Mr.S.B.Vakil for the appellant-insurance company
vehemently submitted that the learned Tribunal erred in
not holding that the limit of the liability of the
insurance company was only Rs.10,000/=. He submitted
that the learned Tribunal has wrongly relied upon the
judgment of this court reported in the case of Bomanji
Rustomji Ginwala Vs. Ibrahim Vali Master reported in 22
GLR 1169. According to his submission, the matter is
squarely covered in his favour by the judgment of the
Hon’ble Supreme Court in the case of M/s.Sheikhpura
Transport Co. Ltd. Vs. Northern India Transporters
Insurance Co. Ltd. reported in AIR 1971 SC 1624.
#. In the instant case, the policy is blank, as per
I.M.T. 13(a) clause, it concern legal liability of the
passenger. It has come on the record that insurance
company has awarded the premium for covering risk of
passengers and in regard to that it has not mentioned in
the policy that it was limited to the extent of
requirement of Motor Vehicles Act, 1939. If that is so
then in our considered opinion the liability of the
company would be unlimited. Similar view was taken by
the learned Single Judge of this court in Bomanji’s case
(supra). Under the circumstances, it cannot be said that
the learned Tribunal has committed any error in passing
of the award, which calls interference of this court.
##. We have refrained ourselves from dealing with the
aforesaid Hon’ble Supreme Court judgment cited by learned
counsel Shri Kapadia because in our considered opinion
the judgment of the Hon’ble Supreme Court will have no
application to the facts of the present case case and the
same is squarely covered by the judgment of this court in
Bomanji’s case (supra).
##. In view of the above discussion, we do not find any
substance in any of the appeal. All these appeals fail
and are dismissed with costs.
(B.J.Shethna, J.)
(N.G.Nandi, J.)
*Pvv