C/FA/2422/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2422 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In R/FIRST APPEAL NO. 2422 of 2019
With
R/FIRST APPEAL NO. 4323 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In R/FIRST APPEAL NO. 4323 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
===========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
NO
order made thereunder ?
================================================================
NATIONAL INSURANCE COMPANY LIMITED
Versus
KASAMBHAI RASULBHAI SHAIKH
================================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1
MR.HARDIK K RAVAL(6366) for the Defendant(s) No. 2
================================================================
CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 11/02/2021
COMMON ORAL JUDGMENT
At the joint request of the learned advocates appearing for the respective parties, the matters are taken up for final disposal. Page 1 of 5 Downloaded on : Sat Aug 21 16:53:41 IST 2021
C/FA/2422/2019 JUDGMENT
1. The present first appeals has been filed challenging the impugned judgment and award dated 14.08.2018 passed by the Motor Accident Claims Tribunal (Aux), Additional District Judge, Sabarkantha at Idar in MACP No.132 of 2012.
2. Learned advocate Mr.Maulik Shelat appearing for the appellant has submitted that the tribunal has materially erred in overlooking fact that insured motorcycle was driven by owner himself who was not in possession of licence to drive insured motorcycle at the time of accident on 26.09.2011 as his learner licence has already expired on 10.06.2007. As per settled legal position of law, insurance company ought not to have been held liable to pay compensation.
3. Learned advocate Mr.Maulik Shelat for the appellant has submitted that the tribunal has committed a jurisdictional error by deciding legal issue raised in matter while deciding petition. He has submitted that the tribunal ought to have appreciated oral evidence of RTO at Exh.55 as well as Investigating officer (Exh.62) and appellant's officer (Exh.60). He has submitted that as per RTO certificate (Exh.56) read with chargesheet (Exh.63), it is proved that as on date of accident, driver cum owner of insured motorcycle was not holding licence.
4. Learned advocate Mr.Maulik Shelat for the appellant has submitted that the tribunal has not considered the issue whether it is proved that the claimant sustained injuries on account of rashness or negligence in Page 2 of 5 Downloaded on : Sat Aug 21 16:53:41 IST 2021 C/FA/2422/2019 JUDGMENT driving on the part of the driver of the vehicle involved in the accident.
5. Learned advocate Mr.Maulik Shelat for the appellant has submitted that so far as the question of quantum is concerned, the claimant- Ikbalhusein Sakurmahamad Makrani has stated in his claim petition at Exh.1 as well as affidavit Exh.31 that he was healthy aged about 30 years at the time of accident but he has not produced any documentary evidence like copy of birth certificate and school leaving certificate to show/established his age. He has submitted that as per injury certificates produced at Exh.38 and Exh.39, wherein doctor has mentioned 28 years age of applicant. He has submitted that there is no rebuttal evidence produced by the other side.
6. Learned advocate Mr.Maulik Shelat for the appellant has submitted that so far as the question of quantum is concerned, the claimant- Kaambhai Rasulbhai Shaikh has stated in his claim petition at Exh.1 as well as affidavit Exh.30 that he was healthy aged about 40 years at the time of accident but he has not produced any documentary evidence like copy of birth certificate and school leaving certificate to show/established his age. He has submitted that as per injury certificates produced at Exh.43 and Exh.44, wherein doctor has mentioned 43 years age of applicant. He has submitted that there is no rebuttal evidence produced by the other side.
7. In support of his submissions, learned advocate Mr.Maulik Shelat Page 3 of 5 Downloaded on : Sat Aug 21 16:53:41 IST 2021 C/FA/2422/2019 JUDGMENT for the appellant has placed reliance upon the judgment in the case of National Insurance Company Limited V/s. Vidhyadhar Mahariwala & Ors., 2008 ACJ 2860.
8. Learned advocate Mr.Mohsin Hakim for the opponent no.1 has submitted that the award passed by the learned tribunal is just and proper and the same is not required to be interfered. He has further submitted that the amount of compensation as determined by the learned tribunal is to be disbursed in favour of the claimant.
9. I have heard the learned advocates appearing for the respective parties.
10. It appears that while discussing the issue , the claimant is entitled to get compensation of Rs.74,200/- from the opponent nos.1 and 2 jointly and severally, however, the tribunal has erred in not apportioning the liability. While dealing with the contentions of the parties, there is an error committed by the tribunal in not coming to proper finding pursuant to the submissions advanced by the learned advocates for the respective parties. The tribunal has however erred in not determining the extent of liability.
11. Accordingly, the impugned judgment and award dated 14.08.2018 Page 4 of 5 Downloaded on : Sat Aug 21 16:53:41 IST 2021 C/FA/2422/2019 JUDGMENT passed by the Motor Accident Claims Tribunal (Aux), Additional District Judge, Sabarkantha at Idar in MACP No.132 of 2012 is hereby quashed and set aside. The matters are remanded back at the stage of arguments to the tribunal for adjudication of this issue afresh after providing opportunity to all the parties, purely on merits and in accordance with law. After completion of trail, the amount which is deposited by the Insurance Company be disbursed in accordance with law.
12. The above order is passed without going into the merits of the matter and without prejudice to the rights and contentions which may be raised by the respective parties at the time of hearing.
13. The amount, which is deposited with the tribunal, shall be invested in cumulative till final outcome of the proceedings. It is needless to say that it is open for the parties to put their case and if required, led the evidence in accordance with law. R & P be sent back to the tribunal concerned.
Sd/-
(VAIBHAVI D. NANAVATI,J) ABHISHEK Page 5 of 5 Downloaded on : Sat Aug 21 16:53:41 IST 2021