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The United India Fire and General Insurance Co. Ltd. Vs. Ismail Alibhai Sapa and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtGujarat High Court
Decided On
Judge
Reported in1(1986)ACC66
AppellantThe United India Fire and General Insurance Co. Ltd.
Respondentismail Alibhai Sapa and ors.
Cases ReferredIn Madhusudan Das v. Smt. Maravani Bai
Excerpt:
.....thereafter urged that the deceased was not married, and bad no family, and respondents..........appeal against the judgment and award of rs. 16,000/-passed in favour of the parents of deceased musa ismail sapa on 11-10-1977 by the motor accidents claims tribunal, bharuch, in motor accidents claims petition no. 13 of 1974.2. the short facts are that on 11-1-1975 respondent no. 12 ibrahim hasan vali afinwala was going to his field with his tractor bearing no. ghn 8852. while going to his field, he took one haribhai motibhai with him. when the tractor was in village tankari, deceased musa ismail sapa, friend of respondent no. 12, met him. said musa also took his seat in the tractor. thereafter, respondent no. 12 drove his tractor to his field which was at a distance of about 1.5 kms. from village tankari. they all visited the field, and thereafter while returning, deceased musa.....
Judgment:

S.A. Shah, J.

1. The appellant-United India Fire and General Insurance Co. Ltd. has filed this appeal against the judgment and award of Rs. 16,000/-passed in favour of the parents of deceased Musa Ismail Sapa on 11-10-1977 by the Motor Accidents Claims Tribunal, Bharuch, in Motor Accidents Claims Petition No. 13 of 1974.

2. The short facts are that on 11-1-1975 respondent No. 12 Ibrahim Hasan Vali Afinwala was going to his field with his tractor bearing No. GHN 8852. While going to his field, he took one Haribhai Motibhai with him. When the tractor was in village Tankari, deceased Musa Ismail Sapa, friend of respondent No. 12, met him. Said Musa also took his seat in the tractor. Thereafter, respondent No. 12 drove his tractor to his field which was at a distance of about 1.5 kms. from village Tankari. They all visited the field, and thereafter while returning, deceased Musa Ismail and Haribhai went on foot to the road by a short-cut, and waited there for the tractor to come. Respondent No. 12 thereafter came with his tractor where the deceased and Haribhai were standing, but the tractor overturned and crushed deceased Musa Ismail. Haribhai, however, escaped from receiving any injury as he was standing at a short distance away from where the deceased was standing. Respondent No. 1 owner and driver of the tractor also received some injuries on his person. Musa Ismail died on the spot, respondent No. 1 Ismail Alibhai Sapa, father of the deceased. therefore, filed the aforesaid claim petition before the tribunal for compensation. Respondent No. 2 Bai Amina is the mother, and respondents Nos. 3 to 11 are the brothers and sister of the deceased.

3. Mr. P.V. Nanavati, learned advocate for the appellant-Insurance Co. has vehemently urged that deceased Musa Ismail was at the time of the accident travelling in the tractor itself and, therefore, there being no insurance which gives coverage to the deceased the tribunal was not justified in awarding compensation to the parents of the deceased. Even before the tribunal this theory was advanced by the appellant-Insurance Company. However, there was evidence of Ismail Ali Sapa (respondent No. 1) Ex. 55, and Haribhai Motibhai Ex. 54 (who is not the claimant) before the tribunal. Both these witnesses have in clear terms stated before the tribunal that though the deceased had gone in the tractor of respondent No. 12 to his field, at the relevant time he was not in the tractor, and he was standing on the kutcha road with Haribhai when the accident took place,

4. There is no doubt that the accident took place on account of the negligence of driver-owner (respondent No. 12) of the tractor, because the tractor was found on the right side of the road. Mr. Nanavati has not pressed this point. He, however, contended that the whole story that the deceased was not in the tractor at the relevant time is raised to create a liability against the appellant-Insurance Company. The tribunal has discussed this contention at length, and has believed the evidence of both the aforesaid witnesses.

5. Mr. Nanavati has drawn our attention to the fact that respondent No. 1 Ismail had given a statement before the Police Sub Inspector to the effect that the deceased was in the tractor at the time of accident. Before the Tribunal respondent No. 1 has explained his statement starting that he had a tongue injury and, therefore, it was not possible for him to make such a statement at that time. Police Sub Inspector Chandhari Ex. 69 is also examined, but he was not able to say whether respondent No. 1 had any injury on his tongue or not. The tribunal, who had the occasion to record the evidence and mark the demeanour of the witnesses in the witness-box, has believed the evidence of both the witnesses Ismail Ali Sapa and Haribhai Motibhai, and has come to the conclusion that deceased Musa Ismail was not travelling in the tractor at the relevant time and had met with the accident when he standing on the road. There is no reason for us not to accept that finding of the tribunal.

6. In Madhusudan Das v. Smt. Maravani Bai : [1983]1SCR851 in respect of the appreciation of oral evidence, the Supreme Court has observed:

In an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability for displace its opinion as to where the credibility lies.

In the instant case, the Insurance Company has not examined any witness, and the tribunal who had the advantage of assessing the truthfulness of the deposition of the witnesses, has believed the evidence of both the aforesaid witnesses. Mr. Nanavati has not been able to point out as to some special feature about the evidence of a particular witness that has escaped the notice of the tribunal. The tribunal has considered the previous statement of respondent No. 1 Ismail and has accepted his explanation that he had an injury on his tongue at that time and was not in a position to make a statement. In the aforesaid view of the matter, we accept the finding of the tribunal that the deceased was standing on the road when the accident took place.

7. Mr. Nanavati, thereafter urged that the deceased was not married, and bad no family, and respondents Nos. 1 and 2 who are the parents of the deceased, are entitled to compensation only to the extent of one-third of the income of the deceased. Now, so far as the income of the deceased was concerned, it is an admitted position that at the time of his death he was serving as a teacher in a primary school at Islampur, and was earning Rs. 288/- per month. He was of young age of 28 years, and he might have earned more in future. The tribunal has not considered this aspect, but arrived at the conclusion that the deceased used to spare an amount of more than Rs. 1,000/- per year for his parents. Even if we consider one third of his income which the parents are entitled to, then the amount of Rs. 1,000/-per year is less than what is contended by Mr. Nanavati. However, there being a very little difference, we do not propose to disturb that finding of the tribunal.

8. Mr. Kaji for the original claimant (respondent No. 1) has strenuously argued that the multiplier of 15 should have been applied in this case because the deceased was only 28 years old. We do not find any merit in this contention. There is no reason to interfere with the finding of the tribunal who has applied the multiplier of 12 considering the age of the deceased. The tribunal has thereafter awarded Rs. 4,000/- by way of shock and suffering. This finding is not correct, and cannot be accepted. However, the claimant will be entitled to Rs. 4,000/- under a different bead, viz. loss of expectation of life, which the tribunal has not awarded. In that view of the matter, the total amount of Rs. 16,000/- as compensation awarded by the Tribunal appears to be quite reasonable and proper, and there is no reason to disturb that finding of the tribunal.

9. In the result, the appeal is dismissed with costs.

10. Mr. Kaji for the respondent No. 1 claimant who has filed cross-objections has sought our permission to withdraw the same before the effective hearing. Permission is granted, and in that view of the matter, the cross-objections stand disposed of as withdrawn.


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