Gujarat High Court Case Information System
Print
FA/88/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 88 of 2010
With
CIVIL
APPLICATION No. 677 of 2010
=========================================================
NATIONAL
INSURANCE COMPANY - Appellant(s)
Versus
JAYASHREEBEN
WD/O MANHARBHAI GORDHANBHAI PATEL & 5 - Defendant(s)
=========================================================
Appearance
:
MR
DAKSHESH MEHTA
for
Appellant
None for
Defendants
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE K.M.THAKER 28th January 2010
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
This Appeal preferred under Section 173 of the Motor Vehicles Act
arises from the judgment and order dated 9th October 2009
passed by the Motor Accident Claims Tribunal, Panchmahals, Godhara in
Motor Accident Claim Petition No. 180 of 1998.
The
appellant before this Court is the Insurance Company, insurer of the
offending vehicle-Truck bearing registration No. GJ-17-X-3738. On 5th
January 1998, at around 2.30pm., the offending truck had an head-on
collusion with the oncoming scooter No. GCF 9965 on Anand Sarasa
road. In the said accident, scooter driver-one Manharlal, aged about
42 years, lost his life. His widow and children lodged above referred
claim petition no. 180 of 1998 for compensation in the sum of Rs.
33,00,000/=.
The
claim petition was contested by the appellant-Insurance Company. The
Tribunal below has awarded compensation in the sum of Rs. 4,15,000/=
and interest @ 8% per annum and the cost.
Feeling
aggrieved, the opponent-Insurer of the offending truck has preferred
the present Appeal. Learned advocate Mr. Daxesh Mehta has appeared
for the appellant. He has challenged the impugned award on the sole
ground that the Tribunal below has not considered the factum of
contributory negligence. Mr. Mehta has submitted that considering
that the accident occurred in a broad day light, in the middle of 22′
wide road, fifty per cent of the negligence ought to have been
attributed to the scooter driver-the deceased-Manharlal. Mr. Mehta
has relied upon the evidence of the eye-witness one Kalpesh Ambalal
Patel.
We
have perused the record. The panchnama Exh.34 of the scene of
accident reveals that the accident occurred in the middle of the
road, slightly on the right side i.e., the wrong side of the truck.
Considering the position of the vehicles after the accident, the 10′
long brake marks of the truck, we do not agree that 50% of the
negligence ought to be attributed to the scooter driver the
deceased. May be, the scooter driver was marginally negligent but
such negligence is too insignificant to be considered in the Appeal
before us.
For
the aforesaid reasons, the Appeal is dismissed in limine.
Civil
Application stands disposed of.
{Ms.
R.M Doshit, J.}
{K.M
Thaker, J.}
Prakash*
Top