ORIENTAL INSURANCE CO LTD Vs. ICHHABEN BABUBHAI PANCHAL

JUDGEMENT

(1.) THIS Appeal preferred under Section 173 of the Motor Vehicles Act, 1988 arises from the judgment and award dated 11th February, 1999, passed by the Motor Accidents Claims Tribunal, Baroda [hereinafter to be referred to as "the Tribunal"] in Motor Accident Claim Petition No. 1832 of 1991. The appellant Oriental Insurance Company Limited was the insurer of Maruti car no. GBY 130 involved in the accident in question.

(2.) ON 24th December, 1991, one Babubhai Gulabchand Panchal was travelling in Maruti car no. GBY 130 from Mumbai to Ahmedabad on National Highway No. 8. When the car reached near Kandari village, the Maruti car had headon collision with the oncoming truck bearing registration no. GRX 3558. In the said accident, Babubhai Panchal was grievously injured. He was removed to S. S. G. Hospital, Baroda, where he died on 25th December, 1991 on account of the injuries received in the accident. The widow and the three minor children of the deceased Babubhai filed the above referred Claim Petition No. 1832 of 1991 in the Tribunal for compensation in the sum of Rs. 40,00,000/ -. According to the claim made by the claimants, the deceased Babubhai was 42 years of age. He was resident of Ahmedabad. On 22nd December, 1991, he had gone to Mumbai by Maruti car no. GBY 130 which belonged to his friend, one Trilokchandsinh Baga - opponent no. 5. The said car was insured by the opponent no. 6 Oriental Insurance Company. After visiting Mumbai, the deceased Babubhai left for Ahmedabad on 24th December, 1991, the accident occurred when he reached near village Kandari. According to the claimants, the road widening was in process and there was a tanker lying turtle on the road and oil had spilt from the tanker. The road being slippery, Maruti car being was driven in extreme left at a very slow speed. Nevertheless, the offending truck came headon on its wrong side at an excessive speed, hit the car and dragged the car to the extreme right of the road. Thus, it was the driver of the offending truck who was wholly responsible for the accident in question. The deceased Babubhai was a manufacturer and trader in chemical vessels. He owned a manufactory in Ahmedabad city. His annual income was around Rs. 2,40,000/ -. He was paying electricity bills, telephone bills. Had he lived longer, he would have expanded his business and earned around Rs. 30,000/- every month. The claim was contested by the insurer by written statement [exh. 32]. The insurer denied that it was the offending truck which was responsible for the accident in question and not the deceased as suggested by the claimants. The insurer also alleged that it was the deceased Babubhai who was driving the car and the accident occurred on account of his negligence. The insurer thus denied its liability to pay compensation to the claimants.

(3.) BEFORE the Tribunal, the claimant no. 1, the widow of the deceased gave evidence [exh. 43]. She supported the claim made by her. She stated that the deceased Babubhai had business which had sales tax registration and registration under the Shops and Establishments Act. That the deceased Babubhai was paying telephone bills, electricity bills, sales tax etc. That he was paying insurance premia worth Rs. 46,000/ -. She, however, admitted that the deceased Babubhai did not pay income tax. In support of the claim, the claimants produced sales tax registration of the business of the deceased and certain accounts. It may however, be noted that the said accounts were not proved. It may also be noted that the claimants did not produce sales tax returns filed by the deceased or the amount of sales tax paid by him. The claimants produced certificate of registration under the Shops and Establishment Act [exh. 53], certificate of registration under the Sales Tax Act [exh. 54] as manufacturer and trader [exh. 55], certificate of registration as Small Scale Industry [exh. 56], copies of insurance policies which were not admitted in evidence. The claimants also produced photographs of the damaged car which too were not proved and were not admitted in evidence. The panchnama of the scene of the accident, the FIR registered with the police and the postmortem report are produced at exhs. 46, 44 and 47. The claimants also filed written submissions before the Tribunal. In the written submissions the claimants changed their stand. Now, according to the claimants, it was Maruti car which was driven on the wrong side of the road and the drivers of both the vehicles were responsible for the accident in question.