C/FA/1279/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1279 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE MOHINDER PAL ========================================================== 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 or any order made thereunder ? ========================================================== NEW INDIA ASSURANCE CO LTD Versus ISHAQBHAI RAHEMANBHAI SINDHWA ========================================================== Appearance: MR GC MAZMUDAR(1193) for the PETITIONER(s) No. 1 MR HG MAZMUDAR(1194) for the PETITIONER(s) No. 1 RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3,4 ========================================================== CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL Date : 08/10/2018 ORAL JUDGMENT 1. This appeal has been preferred by the appellant-Insurance Company against the judgment and award dated 21.1.2013 passed by the Motor Accident Claims Tribunal, (Auxi.), Dist. C/FA/1279/2013 JUDGMENT Sabarkantha, at Modasa in MACP No. 854/2008, vide which, the Tribunal has granted compensation of Rs. 3,13,500/ along with 9% interest from the appellant-Insurance Company as well as driver of the vehicle concerned. 2. Brief facts giving rise to the present appeal are that on 1.5.2008, deceased was travelling as cleaner in Truck No. RJ-27-G-9510 and the said vehicle was dashed with another Truck No. DN-09- 8862. No one received any injury in this accident. Thereafter, third truck with registration No. GJ-16-T-8371 came from Bombay side and was moving towards Ahmedabad. The third truck i.e. No. GJ-16-T-8371 was being driven in rash and negligent manner and ran-over the cleaner of the truck No. RJ-27-G-9510 insured with the appellant-Insurance Company. At the time of accident, driver and cleaner of the appellant- Insurance Company were inspecting their vehicle while moving around their truck which had earlier met with an accident with Truck No. DN-09-8862. 3. In the claim petition under sec. 363(A) of M.V. Act, preferred by the LRs of the deceased , the Tribunal awarded aforementioned compensation. Aggrieved from this decision, present appeal has been preferred. 4. Notice has been serve upon the respondents, however, nobody has put in appearance. C/FA/1279/2013 JUDGMENT 5. Learned counsel for the appellant-Insurance Company has submitted that the deceased cleaner was not travelling in the truck bearing registration No. RJ-27-G-9510 at the time of accident which was insured with the appellant- Insurance Company. It has been argued that after the truck which was insured with the appellant- Insurance Company had met with an accident with other truck No. DN-09-8862, both, driver and cleaner of the insured truck got down from the truck and were inspecting the damage caused to the vehicle. In the meantime, another truck came from the opposite direction and hit the cleaner. The truck, which had hit the cleaner was not insured with any of the Insurance Company. In order to get claim, the present Insurance Company has been falsely implicated in the case. To support the contention, he has referred to the FIR got recorded by the driver of the truck which was insured with the appellant-Insurance Company. 6. This Court has heard the learned counsel for the appellant-Insurance Company. The Tribunal has held the appellant-Insurance Company liable to pay the compensation on the ground that the driver of the insured truck has not been examined in the court. The Tribunal seems to have over- looked the fact that after accident, FIR has been lodged by the driver of the vehicle insured with appellant-Insurance Company. The driver, in the FIR has specifically mentioned that no one was C/FA/1279/2013 JUDGMENT injured in the first accident. When he along with cleaner were inspecting their vehicle, at that time, third truck bearing registration No. GJ-16- T-8371 came from Bombay side and was moving towards Ahmedabad. This was being driven in rash and negligent manner. When cleaner had crossed the road, at that time, another truck came from Bombay side and hit the cleaner, who died on the spot. As the offending truck was not insured, the appellant-Insurance Company has been falsely implicated and claim petition has been filed against the appellant – Insurance Company under section 163(A) of the M.V. Act. 7. It could be seen that after the accident, both, the driver and cleaner have not received any injury as they were moving around their truck to inspect the damage caused to the truck because of the first accident. At that time, third truck has come from the opposite direction and caused the accident, as a result of which, the cleaner has died. The Tribunal seems to have committed an error by holding the appellant-Insurance Company liable to pay compensation specifically under the circumstances that the documentary evidence in the form of FIR lodged against the driver of the offending vehicle was there on record. It appears that in order to take false claim, the factual story has been distorted and the driver of the truck and appellant-Insurance Company have been held liable to pay the compensation. There is C/FA/1279/2013 JUDGMENT nothing on file to narrate the ocular version regarding accident as nobody has put in appearance on behalf of the respondents. In absence of any oral evidence from the opposite side, the documentary evidence in the form of FIR cannot be brushed aside by holding the Insurance Company and the driver of the truck with registration No. RJ-27-G-9510 responsible for causing the death of the deceased. 8. As a result of foregoing discussions, this appeal is allowed. The impugned judgment and award dated 21.1.2013 passed by the Motor Accident Claims Tribunal (Auxi.) Dist. Sabarkantha at Modasa in MACP No. 854/2008 is quashed and set aside. The claimants will be at liberty to get the compensation from the driver and owner of the offending vehicle i.e. truck No. GJ-16-T-8371. The amount, if any, deposited by the appellant-Insurance Company lying with the Tribunal, is ordered to be returned back along with interest accrued on that amount. The appellant-Insurance Company shall be further entitled to recover this amount from the respondents, if any, paid to them. (MOHINDER PAL, J) D.B. MANDORA