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FA/3365/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3365 of 2008
With
CIVIL
APPLICATION No. 8992 of 2008
In
FIRST
APPEAL No. 3365 of 2008
======================================
THE
ORIENTAL INSURANCE CO LTD
Versus
MEERABEN
RANABHAI VANSFODA (TADVI) AND OTHERS
======================================
Appearance
:
MR KK NAIR for Appellant.
MS
SHAILI A KAPADIA for Respondent Nos.1 - 2.
None for Respondent
No.3.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 22/08/2008
ORAL
ORDER
1. By
way of this appeal, the appellant insurance company has challenged
judgment and award dated 29-12-2007 passed by MAC Tribunal (Aux.),
Fast Track Court No.2 at Vadodara in Motor Accident Claims Petition
No.44 of 2001, whereby said petition is partly allowed and the
claimants are held entitled to get Rs.3,62,000/- with running
interest at 7.5% per annum from the date of application till
realization.
2. The
facts in brief, as emerging from record, are as under:
3. That
one Ranabhai Vansphoda (Tadvi) was driver of opponent no.1 –
respondent no.3 herein, who was the owner of three wheeler tempo
bearing no. GJ-6 v-4112. Said tempo was used for transportation. It
is also the case of the claimants that on 18-3-2000 when Ranabhai
Vansphoda (Tadvi) was on duty, he had gone to village Dabhoi from
Vadodara and while he was returning from Dabhoi, near bypass road at
Thuvavi one S.T. Bus dashed with the tempo and as a result of that
Ranabhai Vansphoda (Tadvi) received multiple injuries and after long
treatment, he died on 2-5-2000. Since the deceased was on duty at
the time of accident, claim petition is preferred by legal heirs of
the deceased. It is also the case of the claimants that at the time
of death deceased was 44 years old and he was having sound health.
It is also stated that the deceased was earning Rs.100/- per day. It
is also the case of the claimants that since the date of accident,
deceased was admitted in SSG Hospital and they had occurred
approximately Rs.20,000/- towards medicines and also spent
Rs.10,000/- towards funeral expenses. Therefore, the claimants have
claimed Rs.4,00,000/- as amount of compensation from the opponents.
4. Though
served with summons owner of the vehicle has not appeared before the
trial Court, whereas appellant herein had appeared and filed written
statement at Exh.15, wherein it is averred that the accident has
occurred on account of negligence of the deceased and therefore, the
person cannot claim any amount for his own wrong. It is also averred
that there is no nexus between the accidental injuries sustained by
the deceased and his death.
5. After
considering the evidence on record, trial Court partly allowed the
claim petition and held that the claimants are entitled to get
Rs.3,62,000/- with running interest at 7.5% per annum from the date
of application till realization. Being aggrieved by it, the appellant
has filed this appeal.
6. I
have heard learned advocates, Mr.Nair and Ms.Kapadia for the parties.
7. Learned
advocate, Mr.Nair for the appellant mainly raised two contentions.
Firstly, it is contended that the appellant herein has not joined
other tort-feasor though a specific contention was raised in that
behalf in written statement. Second contention is that if the owner
is not liable insurance company is not held liable when the deceased
himself was wrong doer, appellant insurance company cannot be held
liable for payment of compensation. It is also submitted that in
above view of the matter, order of the Motor Accident Claims Tribunal
is required to be quashed and appeal is required to be allowed.
8. On
the other hand, Ms.Kapadia has supported the judgment of the lower
Court and submitted that since the driver of ST bus was negligent in
driving, it met with an accident from the back side of the tempo.
Therefore, she submitted the accident has occurred because of
negligence on the part of driver of ST bus and tribunal has rightly
awarded the amount of compensation to the claimants. Therefore, the
order impugned herein is not required to be interfered with.
9. In
my view, first contention raised on behalf of the appellant is
misconceived, as the issues were framed by the tribunal and inspite
of that no application was made by the appellant herein to modify the
issues. Therefore, it will not be appropriate to allow the appellant
? original respondent no.2 to raise this contention at this stage.
Since counterpart of learned advocate for the appellant has not moved
appropriate application for modification of the issues, such issue
cannot be allowed to be raised at this stage because if such issue
is allowed to be raised at this stage, the original claimants will be
deprived of their legitimate right. In that view of the matter, it
will not be appropriate for this Court to entertain first contention
raised on behalf of the appellant. So far as second contention
contending that the deceased himself was the wrong doer and he cannot
get benefit of his own wrong is concerned, it is clear from the
cross-examination of the claimant, which is on record, that the tempo
which was driven by the deceased was hit from the back side and,
therefore, in my view, it cannot be said that the deceased was
negligent in driving. In view of above discussion, this appeal is
devoid of merits and deserves to be dismissed. Therefore, this
appeal is dismissed.
10. In
view of dismissal of First Appeal, Civil Application also does not
survive and the same is disposed of accordingly.
(K.S.Jhaveri,
J.)
*malek
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