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FA/3153/2010 1/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3153 of 2010
=========================================================
NATIONAL
INSURANCE CO LTD - Appellant
Versus
SAVITABEN
BHUPATBHAI CHAUHAN & 5 Respondents
=========================================================
Appearance :
MR
MEHUL SHARAD SHAH for
Appellant
None for Respondents : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,
1.2.5,1.2.6
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 14/10/2010
ORAL
ORDER
The
appellant- original opponent no. 2 in M.A.C.P No. 98 of 2009 has
approached this Court by way of this First Appeal challenging the
Award and Judgment dated 30th June, 2010 on the ground
that the Tribunal did not appreciate the contention raised by the
Insurance Company opponent no. 2 in original proceedings and
appellant hereinabove with regard to the involvement of the said
vehicle, which was insured with the appellant.
The
claimant in M.A.C.P. No. 98 of 2009 were constrained to prefer
application under Section 163-A of the M.V. Act claiming
Rs.4,08,500/- on account of the death of deceased, who died on
account of vehicular accident occurred on 31st October,
2008, when he was going on Motorcycle bearing registration No.
GJ-23-K-7575 as a pillion rider. The deceased was going with one
Bhagwanbhai, who was riding the Motorcycle. On account of said
accident, the deceased was unconscious and he was moved to the
hospital wherefrom, in the same condition, he was taken to home.
After being shifted at his residence, within 6 days he died. On
account of ignorance, no P.M. was performed nor was it requested to
be performed. The dependent-claimants preferred MACP No. 98 of 2009
under Section 163A of the M.V. Act. The Insurance Policy is of the
composite policy and that fact was not disputed. The Tribunal after
appreciating the facts and evidence and law on the point, partly
allowed the claim petition and awarded sum of Rs.3,06,911/- together
with proportionate costs and interest at the rate of 9% p.a from the
date of the application till realization. Being aggrieved and
dissatisfied with the award and judgment dated 30th June,
2010, the appellant preferred this appeal for the reasons stated
therein.
Learned
advocate Shri M.S. Shah appearing for the appellant contended that
the First Information Report is not filed, meaning thereby, no
offence is registered in respect of the occurrence of the incident
in question. The Insurance Company in its written statement raised a
specific plea with regard to the serious doubt of the insured
vehicle being involved in the accident and therefore, it was the
duty cast upon the Tribunal to appreciate the said contention in its
true perspective. He further submitted that the deceased had been
taken home and he died at his residence. Deceased’s widow
Savitaben, had deposed through affidavit, wherein, it has come out
clearly that vehicle was not driven properly and on account of
vehicular accident, her husband died and he was taken home from the
hospital and within short period thereafter, he died. The PM was
also not requested to be performed so as to make out a cause for
death. Thus, there being no evidence with regard to the deceased’s
death occurring on account of vehicular accident and therefore, the
Tribunal ought not to have allowed the claim petition. The certified
copy of the affidavit and cross-examination of Savitaben is taken on
record.
The
Court is unable to accept the submission of learned advocate for the
appellant for the following reasons.
The
narration of the entire incident, as it emerged from the claim
petition as well as the testimony of the widow, which has came by
way of affidavit and her cross-examination, conclusively go to show
that the appellant did not seriously dispute the accident nor did
they dispute the involvement of the insured vehicle, had this being
the case, then, the cross-examination would not have ended with only
two questions, which have been in respect of the widow has not seen
the accident in question from her own eye. The widow has narrated
the entire incident in detail and fact that deceased had been
unconscious and he was in that state, taken to the hospital,
therefrom, as he was not recovering, he had to be shifted to home on
account of poor condition and without recovering consciousness, the
deceased died within 6 days from the date of he being shifted to
home. These all facts clearly go to show that the involvement of the
insured vehicle in the accident cannot be said to be doubtful as
sought to be canvassed by learned advocate for the appellant. The
non-filing of the FIR in itself cannot be said to be so grave lapse
on the part of the claimants and/or the concerned so as to defeat
the just and proper compensation on account of death of the deceased
in vehicular accident. The decision relied upon by the Tribunal in
case of Gujarat State Road Transport Corporation Vs.
Mariambai A. Adamji (since deceased) through his heirs and Lrs.
Zubeda Abdulhabib & Anr., reported in 2003(1) GLR
574 is applicable to the facts and situation of the case. This Court
is of the view that the question with regard to witness not being an
eye-witness, in itself is not sufficient to discard her involvement
with regard to insured vehicle in question. The reasoning and
findings of the Tribunal, therefore, deserves to be appreciated. The
appeal, in my view, does not require any interference and it fails.
The First Appeal is rejected.
(S.R.BRAHMBHATT,
J.)
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