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FA/712/1989 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 712 of 1989
With
FIRST
APPEAL No. 1303 of 1989
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
1
Yes, 2 to 5 No
=========================================================
NEW
INDIA ASSURANCE CO. LTD - Appellant(s)
Versus
PATEL
BHAGVANJI PREMJI & 4 - Defendant(s)
=========================================================
Appearance :
MR
RAJNI H MEHTA for
Appellant(s) : 1,
None for Defendant(s) : 1 - 3.
MR SN SHELAT
for Defendant(s) : 4 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 01/12/2010
ORAL
JUDGMENT
By
way of this appeal, both The New India Assurance Co. Ltd. as
well as the Gujarat State Transport Corporation have preferred an
appeal against the judgment and award of the Motor Accident Claims
Tribunal (Main), Rajkot in two Motor Accident Claim Petitions, i.e.
M.A.C.P. No.44/1985 and M.A.C.P. No.69/1985 respectively, whereby
the Tribunal has held that both the drivers of both the vehicles to
contributory negligence.
The
facts in brief giving rise to this appeal arise out of a common
accident involving a Truck No.GTX-5599 and a State Transport Bus
No.GRP-8793 which took place on 18.08.1984 at 6.30 pm on Kuvadava
road.
Learned
Counsel for the State Transport Corporation has contended that the
Tribunal has committed an error in holding the S.T. Driver 40%
negligent and 60% negligent to the Truck Driver. Learned Counsel for
the Insurance Company has submitted that the claimants were
travelling in Truck No.GTX-5599. The truck was a commercial goods
vehicles and the claimants were travelling in a goods vehicle.
Therefore, the Insurance Company is not liable to deposit the amount
as awarded by the Tribunal. Further, the accident happened on
18.08.1984. Therefore, it was prior to the Amendment Act. Therefore,
the learned Counsel is not liable to pay the amount of compensation.
I
have heard the learned Advocates at length. On the factum of
contributory negligence while considering the issue of negligence,
the Tribunal has discussed in Paragraphs 18, 19 and 20. Paragraph
18 is quoted as under :-
18.
The complaint before the police was lodged by S.T. Driver which is
at Ex.35. He says that he started his bus from Ambaji for Rajkot
and at about 6-30 p.m. they were near Kuvadava and one truck was
coming from opposite side driven rashly and negligently and he took
his bus on the left side on extreme left, while truck came from the
wrong side and that is on the right side and dashed and collided
with the bus and the bus went off the road and truck also became
turtle and on this basis, complaint was lodged and offence was
registered against the driver of the offending truck.
Looking
to the facts and circumstances of the case and looking to the
judgment of the Tribunal, I am in complete agreement with the
findings and reasons given by the Tribunal. The contributory
negligence of 40% attributed to S.T. Driver is just and proper since
it is a head on collusion. Regarding contention of the Insurance
Company, the same is required to be considered.
In
view of the aforesaid, I am of the opinion that the Insurance
Company is not liable to pay the amount of compensation. The owner
of the Truck is liable to deposit the compensation amount. The order
of the Tribunal is modified to the extent that the claim petition is
allowed. However, it will be qua original respondent Nos.1,2,4 and
5. If any amount towards compensation has been deposited by the
Insurance Company, the same will be refunded back to the Insurance
Company. It will be open for the Insurance Company to recover the
amount from the owner. In the premise, the appeal preferred by the
State Road Transport Corporation is dismissed and the appeal
preferred by the Insurance Company is allowed to the aforesaid
extent.
Sd/-
(K.S.
Jhaveri, J.)
Caroline
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