C/FA/3713/2022 JUDGMENT DATED: 14/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3713 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 ?
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BALUBEN VIKRAMSINH PARMAR
Versus
INDRAVADAN PRAHLADBHAI PATEL
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Appearance:
MR DARSHAN DAVE ADVOCATE FOR MS KRUSHITA D DAVE(7857) for
the Appellant(s) No. 1,2,3,4,5,6,7
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/02/2023
ORAL JUDGMENT
1. Advocate Mr. Darshan Dave for Ms. Krushita D.Dave, for the appellants submits that the claimants are Page 1 of 14 Downloaded on : Fri Feb 17 20:45:34 IST 2023 C/FA/3713/2022 JUDGMENT DATED: 14/02/2023 seven dependents of deceased - Vikramsinh Magansinh Parmar, who had challenged the judgment and order dated 08.10.2021 passed by the Motor Accident Claims Tribunal (Main) Sabarkantha at Himatnagar in M.A.C.P. No.142 of 2015, where the claim petition under section 166 of M.V. Act, came to be dismissed on the ground that the involvement of vehicle bearing Registration No.GJ-01- KL-4351, is not proved.
2. Mr. Dave submitted that deceased was on the correct side of Talod Road, which was from Vavdi Chokdi to Talod, and the accident occurred at about 7:30 in the evening at Dhanpura Kampa Stand, when the car no.GJ- 01-KL-4351, came at very excessive speed and in a rash and negligent manner. It is submitted by Mr. Dave that in breach of traffic rule, though there was sufficient space on the road, he came negligently and dashed the deceased, who sustained severe head injury and serious injury on the chest, and during the course of treatment he was declared dead.
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3. Mr. Dave submitted that FIR has been given by cousin, who was not present at the place, but under information received from others, he filed FIR, where in the FIR he has noted as 'Jeep Car'. Mr. Dave submitted that it is the duty of the Investigating Officer to find out the real facts, where the person giving the FIR is not the eye witness to the incident. In such a case, information in the FIR would be collected from the person, who has knowledge about the accident. Mr. Dave further stated that, had the learned Tribunal any doubt about the involvement of the vehicle, then should have follow the directions given in Jay Prakash Vs. National Insurance Company Ltd. & Ors., reported in (2010) 2 SCC 607, and the Tribunal on its own should have received the Accident Information Report (AIR) in Form No.54 of Central Motor Vehicle Rules, 1989, and should have verified all the real facts to the accident. Mr. Dave submitted that the learned Tribunal has placed all the burden on the claimants, who are not the eye witness to Page 3 of 14 Downloaded on : Fri Feb 17 20:45:34 IST 2023 C/FA/3713/2022 JUDGMENT DATED: 14/02/2023 the incident. Mr. Dave states that the charge-sheet has been filed against opponent no.1 - Driver, Indravadan Prahaladbhai Patel of Hundai I-10 Car No.GJ-01-KL-4351, and the owner of the vehicle is opponent no.2.
4. Mr. Dave further submitted that the Tribunal inquiring in Form No.-54, placed much reliance on the arguments of learned Advocate of the Insurance Company, where it was rather the bounden duty of the Insurance Company to have brought the real facts on record to have shown the Court the actual vehicle involved, where it was not at all necessary to go beyond the charge-sheet which has been filed by the police, would be only after the detail investigation.
5. It appears that the Insurance Company has contended that the 'telephonic Vardhi', where the alleged vehicle involved in the accident is shown as Bolero. The FIR has been lodged by the cousin of the deceased against unknown Jeep driver. Even at the time of drawing Page 4 of 14 Downloaded on : Fri Feb 17 20:45:34 IST 2023 C/FA/3713/2022 JUDGMENT DATED: 14/02/2023 of Panchnama, on the next day, the vehicle was not present. The eye witness - Dhirajbhai Babubhai Patel has not disclosed the number of the car. Moreover, it has been contended by the Insurance Company that Hyundai I-10 Car No.GJ-01-KL-4351 was not involved in the accident.
6. The learned Tribunal while considering the case has found substance in the argument canvassed by the Advocate of the Insurance Company, observing that no complaint was lodged on the same day i.e. on 08.02.2012. The complainant has specifically lodged the same against unknown Jeep and the word 'Jeep' has been repeatedly used almost about six times in the complaint, wherein the Vardhi Bolero has been specifically mentioned; so, there is no chance of any faint memory while lodging the complaint also. The learned Tribunal has further mentioned that opponent nos.1 and 2 in their reply admitted the incident of accident. Page 5 of 14 Downloaded on : Fri Feb 17 20:45:34 IST 2023
C/FA/3713/2022 JUDGMENT DATED: 14/02/2023 6.1 It is strange to note that the learned Tribunal has very categorically observed that opponent nos.1 and 2 have admitted the incident of accident in their reply, but unfortunately has observed that it is not their lookout as to whether the applicants should be awarded compensation as per the policy condition or not? Such observation of the learned Tribunal is very unfair, unreasonable and against the object of M.V. Act, where it is duty of all the concerned to assist the Court in coming to just conclusion, and more so, where the victims of the accident case are to be compensated, as has been rightly observed in Jay Prakash Vs. National Insurance Company Ltd. (Supra), and therefore the Hon'ble Apex Court referring to the background of the facts had given direction to the police authorities, claim Tribunals and suggestions were also given to the Insurance Companies by paragraph nos.16 to 31, and therefore every Tribunal is bound to follow the directions laid down in Jay Prakash case (supra).
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7. While rejecting the claim petition, the learned Tribunal has further observed that the opponent Insurance Company has denied all the documents, while opponent nos.1 and 2 have admitted all the documents by putting an endorsement, but have never stepped in the witness box, and opportunity to cross-examine the opponent nos.1 and 2 was not available to the opponent no.3, and they have not tendered any affidavit in the entire litigation. Further, the learned Tribunal has observed that the witness examined on behalf of the applicants namely Dhirajbhai Babubhai Patel and opponent no.1 i.e. driver, both are from the same village. The learned Tribunal came to the conclusion that the said witness is planted, whereas opponent no.1 - driver of the offending vehicle has not tendered his evidence, and thus the learned Tribunal has observed that after going to the entire evidence, it transpired to the Tribunal that they have improved the version to give shape to the claim of the claimants.
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8. Mr. Dave further stated that the Insurance Company has examined Vijaysingh Vatsinghbhai Utedra at Exh.79, who was the investigating officer of Cr.No.I- 2/2012, and the Panchnama was drawn on 09.01.2012, and the telephonic Vardhi was received on 08.01.2012 from Talod CHC. Thus, Mr. Dave stated that after the Panchnama, the FSL report was also received, where the conclusion has positively been drawn about the accident; however, FSL report writes about the make of the Company as Alto Car of Maruti Company, while the registration number in the FSL report is same. Thus, Mr. Dave relying on the judgment of Kusum Lata Vs. Satbir, reported in (2011) 3 SCC 646, states that when at the time of accident, the deceased was with his wife, one son and daughter. Both the children were minors at the time of the accident, and under such circumstances when the husband/father requires immediate medical aid, he was taken to the hospital. Thus, Mr. Dave submitted that the very fact of taking him to the hospital, where the fact of vehicular accident was disclosed, would remove all the Page 8 of 14 Downloaded on : Fri Feb 17 20:45:34 IST 2023 C/FA/3713/2022 JUDGMENT DATED: 14/02/2023 doubts of the involvement of the vehicle, where the accused himself has admitted before the investigating officer regarding the accident, which has taken place; and further there is no such suggestion made to the investigating officer from the Insurance Company that he had filed any false charge-sheet. While in the cross- examination of the investigating officer, he has stated that after receiving sufficient evidence he had filed charge-sheet against Car No.GJ-01-KL-4351. 8.1 Mr. Dave stated that, in circumstance of a accident of elder member, it would be difficult for the members of the family to remember the number of the vehicle or make of the vehicle, or could have even differentiate between the vehicle as Jeep and Car, and the FIR notes about some 'Jeep Car' and no further details of brand of the Car.
9. In Kusum Lata (supra), the Hon'ble Apex Court has observed in paragraph nos.8, 9 and 10, which read as Page 9 of 14 Downloaded on : Fri Feb 17 20:45:34 IST 2023 C/FA/3713/2022 JUDGMENT DATED: 14/02/2023 under:
8. This Court is unable to appreciate the aforesaid approach of the Tribunal and the High Court. This Court is of the opinion that when a person is seeing that his brother, being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such mental strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural.
9. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The so-called reason that Page 10 of 14 Downloaded on : Fri Feb 17 20:45:34 IST 2023 C/FA/3713/2022 JUDGMENT DATED: 14/02/2023 as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact-situation in this case. It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.
10. Reference in this connection may be made to the decision of this Court in Bimla Devi and others v. Himachal Road Transport Corporation and others [(2009) 13 SCC 530], in which the relevant observation on this point has been made and which is very pertinent and is quoted below:-
"In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants.
The claimants were merely to establish their case on the touchstone of preponderance of probability. The Page 11 of 14 Downloaded on : Fri Feb 17 20:45:34 IST 2023 C/FA/3713/2022 JUDGMENT DATED: 14/02/2023 standard of proof beyond reasonable doubt could not have been applied."
10. In this case, keeping in mind the observations made in Kusum Lata Vs. Satbir (supra) and when the investigating officer was examined by the opponent Insurance Company at Exh.79, and when he has deposed in the cross-examination in para-8 after receiving sufficient evidence, he had filed the charge-sheet against the driver of GJ-01-KL-4351, and when he had produced all the documents regarding his investigation which is notes made by his writer during the course of investigation, at Exh.81, and when the respondent nos.1 and 2 have admitted in their written statement about the accident, and when the charge-sheet have been filed, and when no case of any fraud has been registered, this Court feels that the observations made by the learned Tribunal for dismissing the claim petition is erroneous, is not consistent with the evidence on record and the learned Tribunal has unnecessarily laid down onerous liability on the claimants. Therefore, the observations for rejecting Page 12 of 14 Downloaded on : Fri Feb 17 20:45:34 IST 2023 C/FA/3713/2022 JUDGMENT DATED: 14/02/2023 the claim is required to be set aside.
10.1 On the reasons given hereinabove, this Court comes to the conclusion that the accident has occurred because of sole negligence of Hyundai i-10 Car bearing No.GJ-01-KL-4351, which has been chargesheeted against opponent no.1.
11. In view of the above, the appeal is allowed in the aforesaid terms. The judgment and order dated 08.10.2021 passed by the Motor Accident Claims Tribunal (Main) Sabarkantha at Himatnagar in M.A.C.P. No.142 of 2015 is quashed and set aside. Since the learned Tribunal has not considered the income aspect and other loss for compensation on different heads, the M.A.C.P. No.142 of 2015 is remanded back to the concerned Tribunal on the limited aspect of considering the loss to the dependents in accordance to the settled judgments of the Hon'ble Apex Court, and the same exercise be completed within a period of Five Months from the date of receipt of copy of this order.
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C/FA/3713/2022 JUDGMENT DATED: 14/02/2023 11.1 Record and Proceeding, if any, be sent back to the concerned Court forthwith.
Direct service is permitted.
(GITA GOPI,J) Pankaj Page 14 of 14 Downloaded on : Fri Feb 17 20:45:34 IST 2023