AI Structured Summary
Not yet generated for this judgment
Judgment
Feeling aggrieved by and dissatisfied with the judgment and award dated 18.12.2012 passed by learned Motor Accident Claims Tribunal (Aux.),
Amreli, in Motor Accident Claim Petition No.344/2008, the appellant â€" Executive Engineer, R & B Department, has preferred present appeal under
Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as ""the Code"" for short).
Heard Mr.Rakesh Patel, learned Assistant Government Pleader for the appellant, Mr. Hiren Modi, learned counsel for respondent Nos.1.1 to 1.3Â‐
original claimants and Mr. Vibhuti Nanavati, learned counsel for respondent No.2. Though served, no one appears for respondent No.3.
The following noteworthy facts emerge from the record of the appeal:Â
3.1 As per the case of the original claimants, the husband of original claimant No.1 was serving as an Asst. Engineer in the office of Executive
Engineer, Amreli. That the accident occurred on 06.08.2008 at about 11:30 hours in the night between the government jeep bearing registration
No.GJÂ1ÂGÂ1900 owned by the appellant and mini truck Tata make 608 bearing registration No.GJÂ23ÂTÂ 5408. It is the case of the claimants
that, the said mini truck was parked on the road, which was 25 feet wide road, gone through Dhandhuka to Barvala and the same is a State Highway.
That the driver of jeep could not see the parked mini truck as many vehicles were coming from opposite side with full lights and therefore, the jeep
dashed with the said mini truck. In the said accident, the deceased received fatal injuries and he died during the treatment.
3.2 In connection with the said accident, F.I.R came to be lodged with Barvala Police Station, being C.R.No.IÂ 70/2008.
3.3 It is the case of the original claimants that the deceased was aged about 52 years and he was in government service and had salary of
Rs.29,355/Â p.m. with other allowances.
3.4 Therefore, the original claimants filed a claim petition before the Tribunal claiming compensation of Rs.50,00,000/Â (Rupees Fifty Lakhs), wherein
the Tribunal after considering the oral as well as documentary evidence adduced by the original claimants, awarded compensation of Rs.28,08,948/Â‐
with interest at the rate of 9 % p.a from the date of filing of claim petition till its realization and has come to the conclusion that the driver of
government jeep was solely negligent for the said accident.
3.5 Being aggrieved by the impugned judgment and award, present appeal is filed. At the outset, it may be noted that, as there is no dispute as regards
the quantum and only the question which is to be considered by this Court is as regards the negligence. Record further indicates that the appellant
appeared before the Tribunal, however, did not file any written submissions or has not examined any witnesses. However, as the point of negligence is
raised in the memo of appeal, the appeal came to be admitted and the same is finally heard. We have perused the original record and proceedings.
Learned AGP for the appellant has contended as under:
(i) That, the Tribunal has wrongly come to the conclusion that there is no case of composite negligence;
(ii) Referring to the FIR at Exh:39 and Panchnama at Exh:40, he contended that though the mini truck was parked on the left side of the road, it was
parked without any reflector, parking light or any signal of it being stationary;
(iii) That due to full lights of other coming vehicles from the opposite direction, driver of jeep could not mark or see the stationery truck and because of
which, the accident has occurred. He, therefore, contended that the Tribunal has wrongly appreciated the evidence in form of FIR at Exh:39 and
Panchnama at Exh:40 and has wrongly come to the conclusion that the driver of jeep alone is solely negligent for the accident;
(iv) Relying upon the judgment of the Apex Court in the case of Archit Saini & Anr. Vs. Oriental Insurance Company Ltd. and Anr. [(2018) 3 SCC
365] and the judgments of Division Bench of this Court rendered in the cases of (1) Oriental Insurance Company Ltd. Vs. Nishit Kiritkumar Raval
[2015 (2) GLH 715] (2) Premlata Navinchandra Sharma & Ors. Vs. Hirabhai Ranchhodbhai Patel & Ors. [1982 GLH 582], (3) Saudagarsing
Chhajusing Vs. Jashodaben [1986 ACJ 1070], and (4) State of Gujarat through Executive Engineer Vs. Valjibhai Bhavanbhai Ramani since through
heirs & Ors. (First Appeal No.36/2010], it was contended that mini truck 608 being heavy vehicle parked on 25 feet road without any signal, reflector
or parking light, that too at night hours, as is only case of the accident and therefore, the driver of mini truck should have been held to be solely
negligent;
(v) Alternatively, it was contended that considering the manner in which the accident has occurred, driver of mini truck was more negligent and
according to Mr. Patel, even if the negligence is considered to be contributory negligence, driver of mini truck should be held to be 80 % negligent and
driver of jeep should have been held only 20 %negligent;
(vi) Though it is not raised in the memo of appeal, Mr. Patel also contended that the Tribunal has wrongly examined the question of liability and
considering the insurance policy at Exh:44, there was an act only policy and additional premium was paid by the appellant and therefore, risk of the
deceased, who was travelling in the jeep as an employee of the Government was covered.
On the above mentioned contentions, Mr. Patel, learned AGP submitted that, present appeal be allowed and the impugned judgment and award be
modified, as prayed for and this Court should hold that the driver of mini truck was solely negligent for the accident.
Per contra, Mr.Vibhuti Nanavati, learned counsel for the Insurance Company has also relied upon the FIR and Panchnama at Exhs:39 and 40
respectively and contended that, no written submissions have filed, neither any of the contentions which are raised in the appeal were taken by the
appellant before the Tribunal and it is only for the first time before this Court, this contention is raised. The driver of jeep was also not examined by the
original claimants and therefore, the Tribunal has rightly come to the conclusion that the driver of jeep was solely negligent. He also submitted that the
Tribunal has rightly come to the conclusion that it is not a case of contributory negligence and the appellant has been rightly held liable for the
accident. Liability aspect was not even questioned by the appellant before the Tribunal. Referring to the policy at Exh:44, he contended that it was an
act only policy and extra premium for risk of the driver was paid by the appellant and therefore, the risk of the deceased (government officer in the
present case), who was travelling in a government jeep was not even covered under the special policy at Exh:44 and therefore, the contention of
liability raised by the appellant deserves to be negatived. He also submitted that the Tribunal has rightly appreciated the evidence on record and has
rightly come to the conclusion that the driver of government jeep is solely negligent, which does not require any alteration or modification by this Court
and therefore, present appeal being meritless, deserves to be dismissed.
Mr.Hiren Modi, learned counsel for the original claimants has submitted that in case if this Court comes to the conclusion that the drivers of both
impeding vehicles involved in the accident are contributory negligence, amount of compensation as awarded by the Tribunal, which is deposited by the
appellant pursuant to the order dated 03.09.2013 passed by this Court in Civil Application No.9163/2013, be disbursed in favour of the original
claimants giving liberty to the appellant to recover the same from the Insurance Company of the mini truck. To buttress the arguments, Mr. Modi, has
relied upon the judgment of the Apex Court in the case of Khenyei Vs. New India Assurance Co. Ltd.& Ors. [(2015) 9 SCC 273], Mr. Modi candidly
submitted that as far as the quantum is concerned, the same is not challenged by the original claimants.
No other or further submissions have been made by learned counsel for the respective parties.
Before reverting to the submissions made by learned counsel for the parties, it would be appropriate to refer to the contents of the FIR and the
Panchnama. In nutshell, the version in the FIR and the Panchnama can be summed up as under :
(a) That the accident occurred on 06.08.2008 at 11:30 P.M and mini truck 608 was involved in the accident, found to have been parked on the left side
of the road and that too, some part of it was on kachha road i.e. road boundary of the State Highway, however, it had no reflector, back light or
parking light, which would enable the drivers of other passing vehicles that the stationary mini truck is standing;
(b) Further, it also deserves to be mentioned that, the FIR was lodged by the driver of Jeep, wherein he has stated that the mini truck was stationary
without any reflector, back light or parking light and because of flash lights, mini truck could not notice and jeep dashed with the stationary mini truck.
The said mini truck no doubt is a bigger vehicle, whereas the jeep is a little small vehicle, however, from the panchnama, no brake marks are found
and the manner in which both the vehicles are damaged, it cannot be presumed that the jeep was driven at a moderate speed. However, the fact
remains that the mini truck was in a stationary position in correct side of the road i.e. left side though without any reflector or parking light;
(c) Further, the panchnama indicates that it was parked on the correct side i.e. left side and it is nobody's case that, the mini truck was parked on
wrong side;
(d) That the accident has taken place on 25 feet wide road and over and above, there is road boundary on both the sides.
Upon considering the reasonings given by the Tribunal for holding the driver of jeep only negligent, we find that the Tribunal has considered that the
claimants have failed to prove the negligent part of the mini truck driver. The Tribunal has also recorded the fact that the mini truck 608 was found on
eastern side of the road. Panchnama further indicates that the mini truck was parked in correct side of the road i.e. on left side. Even considering the
version of the driver of jeep by way of FIR at Exh:39, the Tribunal has wrongly come to the conclusion that if the driver was not able to see the road
further, he could have moved forward after taking care and without taking such care, driver of jeep continued his speed and that is why, the accident
has occurred. He was not able to see the mini truck 608 lying parked on the road in a stationary position. The Tribunal has also wrongly come to the
conclusion that the truck parked on the road and there was no parking light or signal on the vehicle. In a claim petition itself, the original claimants
have also stated that the mini truck was stationary vehicle and parked on the left side of the road. In addition to that, the FIR at Exh:39 and
Panchnama at Exh:40 also clearly reveal the said facts. We therefore, find that the reasonings given by the Tribunal for negligence is incorrect on the
basis of the evidence on record. It also deserves to be noted that the mini truck driver is not examined by any party to the claim petition and so also,
the appellant has not examined the driver of the jeep. On the basis that the claimants could not plea or prove the negligence on part of both the drivers
and only because the chargesheet was filed against the driver of jeep, the Tribunal has wrongly come to the conclusion that the driver of jeep alone is
solely negligent for the accident. Upon reappreciatiion of the evidence on record in form of FIR at Exh:39 and the panchnama at Exh:40, case on hand
is a case of contributory negligence and the manner in which the accident has occurred, driver of both the vehicles i.e. mini truck 608 and jeep are
negligent.
Learned AGP has relied upon the judgment of the Apex Court in the case of Archit Saini (supra) and contended that the driver of mini truck, which
was parked stationary without any parking light or reflector is solely responsible. In the case of Archit Saini (supra), the mini truck was parked in
negligent manner without reflector or parking lights in the middle of National Highway, whereas in the case on hand, it has come on record that, the
mini truck 608 was parked on the left side of the road on kachha road. The other judgments of Division Bench of this Court which are relied upon by
Mr. Patel, are also on the aspect of degree of contributory negligence based upon the facts of each case.
Having come to the aforesaid conclusion that the Tribunal has committed an error in holding the driver of jeep solely negligent and that the case on
hand is a case of contributory negligence, we would now proceed to decide the contributory negligence on part of the driver of both the vehicles
involved in the accident based upon the evidence, which is adduced in the present case. Even at the cost of repetition, it deserves to be noted that the
driver of mini truck and jeep are not examined. However, considering the evidence on record in form of FIR and panchnama, mini truck 608 though a
mini truck was bigger vehicle parked without any reflector or parking light and that it was a stationary and though the mini truck was parked on the
left side on correct side of road, which was parked on State Highway, that too at night hours at 11:30 p.m, the jeep has dashed with stationary mini
truck and no brake marks are found in panchnama or in any form. Though in the claim petition, the version of the original claimants that the driver of
jeep alone is negligent for the accident, upon reappreciation of the evidence on record, we find that the driver of both the vehicles are liable for the
accident and upon considering and appreciating the evidence on record, in the facts of the case, we are of the opinion that, the driver of jeep was
more negligent as the jeep is found from the evidence to be driven in excessive speed and the driver of jeep did not even get opportunity to apply
brakes before it dashed with the mini truck. Therefore, in the facts of the case, we hold that the driver of jeep was negligent to the extent of 60 % and
driver of mini truck 608, who had parked his truck without any reflector or parking lights, is negligent to the extent of 40 %.
As far as the aspect of liability is concerned, it may be noted that no such ground is raised in the appeal and considering the policy at Exh:44, it
was an act only policy, wherein extra premium was paid only for the driver and not for other persons travelling in the said vehicle and as provided
under Section 147 of the Motor Vehicles Act, risk of employee travelling in the vehicle of employer during the course of employment is not covered.
From the evidence, it has come on record that the deceased was travelling in capacity of an officer of the Government and he gone to Gandhinagar
for official work. In short, considering the policy at Exh:44, risk of the deceased, who was travelling as an employee is not covered and therefore, the
contention as regards the liability raised by learned AGP deserves to be negatived.
It also deserves to be mentioned that, vide order dated 03.09.2013 passed by this Court, the appellant has deposited the entire awarded amount
with the Tribunal and hence, following the judgment of the Apex Court Khenyei (supra), the original claimants be disbursed the said amount with a
liberty to recover the same from the Insurance Company of the mini truck. It goes without saying that, the negligence is to be decided and appreciated
on facts of each case and there is no water type compartment as regards the position of the vehicle.
For the foregoing, present appeal is partly allowed.
No order as to costs.