Oriental Insruance Company Ltd vs Udesinh Kabhaibhai Parmar & 2 Other(S)

A.S. Supehia, J

When the matter is taken up for hearing, it is noticed that the defendant No.3 - owner of the vehicle has already passed away.

The present appeal is filed by the appellant – Insurance Company and is directed against the judgment and award passed by the learned Motor Accident Claim Tribunal (Aux.), Anand in M.A.C.P No.357 of 2010, whereby the Tribunal has allowed the claim petition filed by the original claimant – defendant No.1, awarding compensation of Rs.1,84,000/- along with interest at the rate of 9% p.a., from the date of filing of the claim petition till the realization from the original opponent Nos.1 to 3 jointly and severely.

Learned advocate Mr.Dwivedi, appearing for the appellant – Insurance Company has submitted that the impugned judgment and award is required to be quashed and set aside, since the defendant No.2, who was the driver of the vehicle, was not having a valid licence and the defendant No.3, was the owner of the vehicle. It is submitted that at the most, the Tribunal should have passed an order for pay and recovery from the defendant Nos.2 and 3, however, the same is not done. He has submitted that in fact, the appellant – Insurance Company is not liable to pay the compensation since the defendant No.2 driver was not having licence, hence, the Tribunal has fallen in error in passing the impugned judgment and award.

Per contra, learned advocate Mr.Darji, appearing for the claimant has submitted that in fact, the impugned judgment and award does not require any interference since the appellant – Insurance Company has not examined the drive, who was involved in the accident, and in absence of any evidence, as of now the evidence with regard to the defendant No.2 not having licence, is not required to be examined at the appellate stage. He has further submitted that even the order, with regard to pay and recovery, cannot be passed since the defendant No.3 – owner of the vehicle has already passed away and his legal heirs cannot be made liable.

I have heard the learned advocates for the respective parties. I have also perused the record and proceedings.

On 02.09.2010, the defendant No.1 – original claimant was going towards Adas on his bicycle at about 9:00 a.m., he was on the correct side of the road, at that time the defendant No.2 came by driving motorcycle No.GJ-23 S-2282 with full speed in rash and negligent manner on the wrong side and dashed with the cycle, as a result, defendant No.1 sustained injury of fracture on his right thigh and also sustained injuries on other parts of the body. After the accident, the defendant No.1 was shifted to the hospital of Dr.Bipin Vyas at Anand, where, after the preliminary treatment of one day, he was shifted to Samip Orthopaedic Hospital, where he was admitted as an indoor patient for 12 days and operation was performed on his leg and plates were inserted in his thigh. For all these treatments, the claimant has incurred huge amount towards medicine, medical treatment, special diet, transportation etc. At the time of accident, the claimant was 50 years old and doing cultivating his own agricultural land and also doing labour work and was earning Rs.2,500/- per month, however due to accidental injuries disability has been developed, which has affected his earning capacity. Hence, he has prayed a compensation of Rs.2,00,000/- from all the original opponents along with interest.

The notice and summons were issued to the original opponent Nos.1 and 2, however they have not appeared before the Tribunal and hence, the Tribunal proceeded with the claim petition.

After examining the oral as well as documentary evidence, the Tribunal while examining the issue No.1, the Tribunal has answered the issue No.1 as follow : -

“1. Whether the applicant proves that he suffered injury due to the rash and negligent driving of the driver of the vehicles involved in the accident ?”

“ISSUE No.1

So far as negligence is concerned, ld. Advocate for the applicant has argued that accident took place because of rash and negligent driving by the opponent No.1 and after the investigation police has also filed chargesheet against the Opponent No.1 which is produced at Exh.40. Further, it is argued that the opponent No.3 has not examined the Opponent No.1 driver of the vehicle involved in the accident and therefore adverse inference can be drawn against the opponent No.1. Against this ld. Advocate for the opponent No.3 insurance company as argued that from the police papers, it is clear that the applicant himself took his bicycle on wrong side and panchnama drawn by the police also clearly indicates the same facts and hence, major negligence on the part of the applicant should be held.”

As referred hereinabove, the Tribunal has observed that the opponent No.3 has not examined the opponent No.1 - driver of the vehicle involved in the accident and, therefore, adverse inference can be drawn against the opponent No.1. The Tribunal has further observed that the driver of the Motorcycle bearing No.GJ-23 S-2282, who is the best witness to throw light on the incident, has not stepped into the witness box, therefore the adverse inference can be drawn against the opponent No.1.

This Court has also examined the papers of the charge sheet as well as the Panchnama at Exhs.25 and 26, i.e. the FIR and Panchnama. It is also not in dispute that despite the notice served to the original opponent Nos.1 and 2, they have not produced the driving licence of the driver. The opponent No.3 also sent letter through R.P.A.D., calling upon them to produce the valid and effective driving licence but they did not turn up. It is also noticed by this Court in fact, owner of the vehicle has not been examined.

The Tribunal, after examining the aforesaid facts and in light of the judgment of the Apex Court, has passed the order holding that the original opponent Nos.1 to 3 i.e. the appellant – Insurance Company and defendant Nos.2 and 3 of the present appeal are jointly and severely liable. This Court does not find any illegality or infirmity in the impugned judgment and award, hence, the appeal fails.

The amount, which is lying in fixed deposit, before the concerned Tribunal shall be disbursed to the claimant after due verification.

Record and proceedings be sent back to the concerned Court forthwith.