Bajaj Allianz General Insurance Company Limited vs Ketankumar Mohansinh Prajapati and Others

Jayant Patel, J.—The present appeal arises against the judgment and the award dated 20.03.2010 passed by the Tribunal in Claim Petition No. 1063/06.

The short facts of the case appears to be that on 08.06.2006, when the deceased Kalyansinh Somsinh was driving the motor cycle No. GJ-6BJ-8113, near Khandiwada bus stand on Vadodara to Halol road, at about 7.30, there was accident with another Bajaj motor cycle No. GJ-6BP-2164 and Honda Activa motor cycle No. GJ-AM-3378. The deceased had sustained injury initially and thereafter, he succumbed to the injury. The claim petition was filed for recovery of the compensation of Rs. 18,86,776/- with interest being MACP No. 1063/06 before the Tribunal. The Tribunal ultimately passed the judgment and award on 20.03.2010, whereby the compensation was awarded of Rs. 11,35,236/- with interest at the rate of 7.5% p.a. from the date of the application until the amount is realised. It is under these circumstances, the present appeal before this Court.

We have heard Mr. Nanavati, learned Counsel appearing for the appellant. We have considered the panchnama, the sketch, written arguments and the evidence of Ketankumar Mohanbhai Prajapati, who was driving the vehicle which was insured with the appellant Insurance Company. The learned Counsel had relied upon the aforesaid documents in support of the appeal.

The learned Counsel appearing for the appellant contended that contributory negligence attributed by the Tribunal to the driver of the vehicle insured with the appellant insurance company to the extent of 40% is erroneous inasmuch as there was already space available on road for the deceased to overtake and instead of that, has dashed his vehicle from the rear side of the another vehicle which is insured with the appellant insurance Company. He submitted that under these circumstances, the Tribunal ought not have attributed only 20% contributory negligence to the deceased nor the Tribunal could have attributed 40% contributory negligence to the driver of the vehicle, which is insured with the appellant insurance Company. He therefore submitted that the said finding of the Tribunal is erroneous and hence, this Court may interfere in exercise of the appellate power.

The examination of the said contention if considered with the evidence on record, it appears that it was an admitted position that the driver of the vehicle which was insured with the appellant insurance Company as well as the driver of the other Honda Activa were on national highway plying the vehicle in parallel manner and they were talking with one another while plying the vehicle. It is under these circumstances, the accident had happened. The pertinent aspect is that the deceased was coming on the vehicle on the rear side and therefore, the learned Tribunal has taken note of the fact that the deceased who was driving the vehicle on the rear side would not know about the speed of the vehicle which was being plied by the other person including the driver of the vehicle insured with the appellant Insurance Company. In our view, the fact that on highway, plying of vehicle in parallel manner and while plying the vehicle talking together itself would be sufficient ground to attribute more contributory negligence to the driver of both the vehicles. Merely because there was space available on the road for passing the vehicle of the deceased itself cannot be said to be a sole ground for reduction of the contributory negligence in a case when it was admitted position that the vehicle driven by the driver of the vehicle which was insured with the appellant-insurance company and vehicle insured with the other insurance Company both were driving in a parallel manner and while plying the vehicle, they were talking together. Further, if the incident is to be considered on a reasonable prudence taking into consideration the damage caused to the vehicle, the damage is the least and practically, no damage to the vehicle of the deceased. As against the same, there is more or less equal damage to the vehicles insured with the appellant insurance Company and the other insurance Company which was being plied in parallel manner. Under these circumstances, if the Tribunal by exercise of the discretion has attributed 20% of the negligence to the deceased and 40% negligence to the driver of both the vehicles which were being plied in parallel manner on national highway, the same cannot be said to be perverse exercise of discretion. Hence, the said contention cannot be accepted.

No other contention is raised.

Hence, the appeal is meritless and therefore, dismissed.