FA/1868/2005 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1868 of 2005 With FIRST APPEAL No. 5415 of 2007 With CIVIL APPLICATION No. 15411 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA ========================================================= 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 ? ========================================================= NEW INDIA ASSURANCE CO. LTD - Appellant(s) Versus VALJI SHIVJI VARSANI & 1 - Defendant(s) ========================================================= Appearance : MR SANDIP C SHAH for Appellant(s) : 1, None for Defendant(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 07/02/2008 ORAL JUDGMENT 1. Although both the appeals, under Section 173 of the Motor Vehicles Act, 1988, are preferred from different awards of different FA/1868/2005 2/6 JUDGMENT Motor Accident Claims Tribunals, they were argued together on the basis of the same material and evidence due to the fact that both the cases had arisen from the same accident. 2. The vehicular accident apparently due to headlong collision between two trucks happened on 03.04.1995 at about 19:00 hours on Bhuj-Lakhpat road, about 13 kms. away from Bhuj. The driver of truck No.GJ-12-T-5510 died due to accident and the truck driven by him was badly damaged. Therefore, the heirs of deceased driver approached the Claims Tribunal with M.A.C.P.No.300 of 1995 claiming Rs.7,00,000/- as compensation and the owner of truck filed M.A.C.P. No.478 of 1995 claiming Rs.1,00,000/- towards damage to the truck. In both the claim petitions, the appellant has joined as a respondent-insurance company of the other truck bearing No.GTJ-7038. However, in M.A.C.P. No.300 of 1995, the driver of truck No.GTJ-7038 is stated to be “not known” whereas in M.A.C.P. No.478 of 1995, Mohanlal Vishram Parasia is stated to be the owner and driver and joined as opponent No.1 as such. Admittedly, the owner or the driver of truck No.GTJ-7038 has not defended the claim application and not stepped into the witness-box. Therefore, in both the claim applications, the Tribunal was left with no other FA/1868/2005 3/6 JUDGMENT alternative but to rely upon the evidence submitted by the claimants and the Tribunal has recorded finding of fact that the accident was attributable to the negligence on the part of the driver of truck No.GTJ-7038. 3. Learned counsel Mr.Sandeep Shah, appearing for the appellant-Insurance Company, submitted that the accident was atleast partly attributable to the deceased driver of truck No.GJ-12-T-5510 and liability of the appellant was required to be reduced to the extent of negligence on the part of the driver. He mainly relied upon the F.I.R. lodged with the police station within three hours of the accident and the Panchnama of the scene of accident (Exh.39), which was made on the next morning. It was seen from the material placed on record for perusal of the Court that the F.I.R. was lodged by the owner of truck No.GJ-12-T-5510 and gross negligence was alleged against the driver of the other truck. According to the Panchnama-Exh.39, the road at the place of accident was 22 feet wide and both the trucks were lying at the spot at an angle on the road with extensive damage to their bodies. It was emphasised by learned counsel Mr.Shah that front portion of the truck driven by the deceased was 11 feet away from the left-hand side of the road whereas its rear portion was only two feet FA/1868/2005 4/6 JUDGMENT away from the left-hand side. It was argued on that basis that the deceased must have driven the truck in the middle of the road at such speed that it could not be controlled to prevent the headlong collision between the two trucks. He also submitted that since that truck was not loaded, it was more likely to have been driven at an excessive speed and, therefore, some negligence was required to be attributed to the deceased driver of truck No.GJ-12-T-5510. 4. Learned counsel Mr.Mehul S. Shah, appearing for the original claimants and learned advocate Mr.Sandeep Bhatt, appearing for the owner of truck No.GJ-12-T-5510, submitted that the Tribunal had, in both the cases, arrived at proper and legal finding of fact to the effect that the accident had happened due to negligence of the driver of truck No.GTJ-7038. It was pointed out that even as the driver of truck No.GTJ-7038 was the sole eye-witness of the accident, he was not examined in evidence at the instance of the appellant, who had stepped into the shoes of the insured by making an application under Section 170 of the Act. It was submitted that the position of the trucks, after the accident, could not have been decisive in the facts of the present case because, after receiving fatal impact, the driver of truck FA/1868/2005 5/6 JUDGMENT No.GJ-12-T-5510 could not have controlled the truck and due to collision of the loaded truck No.GTJ-7038, the former truck would have turned towards the wrong side of the road. There was no dispute about the fact that neither of the trucks appeared to have applied its brakes since no brake-marks were seen near either of the trucks. 5. In view of the above facts and contentions, upon perusal of the F.I.R. and the Panchnama and in absence of any positive evidence in favour of the driver of truck No.GTJ-7038, it was not possible to reverse the findings of facts recorded by the Tribunals in two different awards. Obviously, the appellant has not cared to lead any evidence and the owner or driver of truck No.GTJ-7038 has avoided to step into the witness-box and be subjected to any cross- examination. Therefore, the Tribunal would have been justified in drawing an inference adverse to the driver of that truck and holding him entirely responsible for rash and negligent driving. 6. No other issue was made out to interfere with the impugned awards. Therefore, both the First Appeals are dismissed with no order as to costs. Civil Application No.15411 of 2007 no longer survives and accordingly, stands disposed as rejected. The amounts deposited by the FA/1868/2005 6/6 JUDGMENT appellant for the purpose of appeals shall be transmitted to the Claims Tribunal concerned. (D.H.WAGHELA, J.) Hitesh