New India Assurance Co. Ltd. vs Jebarben Bhikhabhai Karshanbhai

Mr. A.G. Uraizee, J. (Oral)—The judgment and award dated 16.07.2010 passed the Presiding Officer, Motor Accident Claims Tribunal (Aux), FTC No.5, Palanpur, in MACP No.480 of 1993, is challenged by the Appellant Insurance Company in this Appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the M.V. Act, for short).

The facts are not many and move in a narrow compass. The deceased Bhikabhai Karshanbhai Solanki was plying Scooter bearing registration No. GJ-E-4646 belonging to Respondent No.7 herein while his friend Mafatlal Manilal Harijan was a pillion riding this Scooter. This Scooter met with an accident with Tractor bearing Registration No. GJ-8-6650 near Patia of village Rampura between 9 a.m. and 10 a.m. when the driver of the offending Tractor came from Deesa side at a high and excessive speed and dashed with the Scooter which the deceased was plying. The deceased succumbed to the fatal injuries caused due to the accident. The legal heirs filed a Claim Petition being MACP No. 480 of 1993 in the Motor Accident Claims Tribunal, Palanpur. The legal heirs and representatives of the deceased initially claimed Rs. 3,00,000/- as compensation, which was subsequently raised to Rs. 6,26,000/-. The learned Tribunal by impugned award partly allowed the said Petition and awarded a sum of Rs. 4,43,856/- with 6% interest and proportionate costs to be recovered from the opponents. The Appellant Insurance Company has challenged the impugned judgment and award of the Tribunal as the driver of the Tractor which was insured with the present Appellant Insurance Company is solely held responsible for the happening of the accident on the basis of principle of res ispaloquitor.

Heard Ms. Lilu K. Bhaya, learned advocate for the Appellant. Mr. S.S. Trivedi, learned advocate for Respondent Nos. 1 to 5 is absent though the matter was called out twice in the first session and once in the post lunch session. There is no appearance on behalf of Respondent Nos. 6 and 7 despite service of notice of Appeal.

Ms. Lilu Bhaya, learned advocate for the Appellant Insurance Company submits that the Tribunal has committed an error in invoking the principle of res ispaloquitor to fasten the responsibility of the happening of the accident solely on the driver of the Tractor. She further submits that the Panchnama of the place of incident indicate that there was head on collision between Scooter and the Tractor and, therefore, the Tribunal ought to have appreciated the liability for occurrence of the accident in equal proportion on the part of the deceased as well as the driver of the Tractor. She further submits that the quantum of compensation awarded by the Tribunal is also on higher side and, therefore, she urges that the impugned judgment and award needs to be quashed and set aside.

Heard Ms. Lilu Bhaya, learned advocate for the Appellant Insurance Company and having perused the record of the Tribunal, I am of the view that the Tribunal has dealt with the issue of negligence in a very casual manner. It, however, appears that despite having ocular documentary evidence before him, the learned Judge has not properly appreciated the evidence and by invoking the principle of res ispaloquitor, which in view of this Court, is not at all appreciable in the facts of the case, fastening the total liability for the happening of the accident on the driver of the tractor. I am, therefore,of the view that the matter needs to be referred to the Tribunal for reconsidering the issue of liability/responsibility for occurrence of the accident on the part of the deceased who was plying the Scooter and the driver of the tractor which were involved in the accident.

For the foregoing reasons, the Appeal is allowed. The impugned judgment and award is hereby quashed and set aside. The matter is referred to the Tribunal for fresh consideration on the issue of negligence.

The Claim petition is of the year 1993 and, therefore, the Tribunal is directed to decide the issue within six months from the date of receipt of the order. Registry is directed to transmit the R&P to the concerned Tribunal.