Kishorsinh Prabhatsinh Solanki vs Abdul Rehim

Gujarat High Court

Kishorsinh Prabhatsinh Solanki vs Abdul Rehim on 30 November, 2023

Author: Gita Gopi

Bench: Gita Gopi

                                                                                      NEUTRAL CITATION




     C/FA/2108/2019                                JUDGMENT DATED: 30/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2108 of 2019


FOR APPROVAL AND SIGNATURE :

HONOURABLE MS. JUSTICE GITA GOPI                Sd/-

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1    Whether Reporters of Local Papers may be allowed to see Sd/-
     the judgment ?

2    To be referred to the Reporter or not ?                                   Sd/-

3    Whether their Lordships wish to see the fair copy of the Sd/-
     judgment ?

4    Whether this case involves a substantial question of law as Sd/-
     to the interpretation of the Constitution of India or any
     order made thereunder ?

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              KISHORSINH PRABHATSINH SOLANKI & 1 other(s)
                               Versus
                       ABDUL REHIM & 1 other(s)
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Appearance:
MR MAHENDRA U VORA(3034) for the Appellant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
NOTICE ISSUED BY PUBLICATION for the Defendant(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 30/11/2023

                             ORAL JUDGMENT

1. By way of this Appeal, the Appellant-claimants have challenged the judgment dated 17.03.2010 passed by the learned Motor Accident Claims Tribunal, Fast Page 1 of 6 Downloaded on : Sat Dec 02 20:40:03 IST 2023 NEUTRAL CITATION C/FA/2108/2019 JUDGMENT DATED: 30/11/2023 undefined Track Court No.2, Ahmedabad in M.A.C.P. No.267 of 1991.

2. The facts in brief are that on 23.05.1990 at about 7.00 am, the deceased - Jagatsinh had gone to the fruit market and was standing near the wall of Shop No.34. At about 4.30 pm, the truck bearing Registration No.CAS-7863 belonging to the respondent No.1 was parked there. The driver of the said truck, without blowing the horn or giving signs, and without taking any precautions, reversed the truck with force. As a result, Jagatsinh was crushed with the body of the wall, he sustained grievous injuries and succumbed thereafter, at the Civil Hospital.

3. Learned Advocate for the appellants-claimants Mr. Mahendra U. Vora submitted that the learned Tribunal has not appreciated the evidence on record while deciding the matter and merely on the ground that notice was not duly served to the respondent No.1, the learned Tribunal observed that service of notice was not made to the owner of the vehicle to establish the liability of the insured and hence, the Insurance Company cannot be held liable. It is Page 2 of 6 Downloaded on : Sat Dec 02 20:40:03 IST 2023 NEUTRAL CITATION C/FA/2108/2019 JUDGMENT DATED: 30/11/2023 undefined submitted that the learned Tribunal has committed an error in dismissing the petition, the issues came to be framed on 31.07.2007. It is further submitted that as per procedure, the opponent No.1 had tried to engage an Advocate vide Exhibits 18 to 20. It has been noticed in the judgment by the learned Tribunal as illegal procedure. Thereafter, the Pursis of retirement was moved by the learned Advocate for the respondent No.1. It is also submitted that the only observation which has weighed with the learned Tribunal was that the respondent No.1 was not duly served. Thus, it is submitted that to provide an opportunity to the parties, the matter requires to be relegated back to the learned Tribunal for decision on merits.

4. It is also submitted that in the present matter, the respondent No.1 being opponent No.1 in the original M.A.C.P. has been served through public notice. Thus on that ground too, it is urged to remand the matter back so that the parties can adduce the evidence, adopting the necessary procedure for service to respondent No.1.

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5. Countering the above arguments, it is submitted by learned Advocate, for the respondent No.2 - the United India Insurance Company Limited, Mr. G.C. Mazmudar that though sufficient opportunity was provided to the appellant for serving the respondent No.1 and even after framing of issues on 31.07.2007, it was open for the appellants to service notice to the respondent No.1, but the record suggests that illegal procedure has been adopted and ultimately, the learned Advocate filed the pursis for retirement qua the respondent No.1. It is further submitted that the learned Tribunal has infact, dealt with the issues framed and has also after closing pursis, the matter was kept for final arguments and accordingly, it can be said on the observations made by the learned Tribunal, that the matter has been disposed of on merits. It is therefore, submitted that the Insurance Company would be prejudiced, if at all, the matter would be again remanded for fresh trial, the Insurance Company would be incase of any order of liability, be saddled with the burden of paying interest on such compensation amount.

6. Having heard learned Advocates for the respective Page 4 of 6 Downloaded on : Sat Dec 02 20:40:03 IST 2023 NEUTRAL CITATION C/FA/2108/2019 JUDGMENT DATED: 30/11/2023 undefined parties, perused the records of the case. The observations in the impugned judgment reveal that an Application - Exhibit 18 was moved on behalf of the respondent No.1 to engage a lawyer and Vakalatnama for respondent No.1 was produced vide Exhibit 19. Thereafter, Exhibit 40 - Pursis was tendered as retirement. The learned Advocate for the respondent No.1 alongwith the pursis, attached a copy of the notice.

7. Here the respondent No.1 in the matter at hand was served by a public notice. The observations in the judgment of the learned Tribunal suggests that an Application was moved on 28.03.2006 to serve the respondent No.1 by way of official Gazette, the said could not be processed for want of of the address. The matter requires hearing on merits. The respondent No.1 has to be duly served for deciding the liability. However, as stated by learned Advocate Mr. G.C. Mazmudar, if at all any liability is laid down, then the Insurance Company would be saddled with the interest to be paid on compensation amount if ordered.

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8. Equity demands that a fair opportunity is to be required to be provided to all. However, at the same time, the other side should not be burdened with any payment of interest because of the inaction on part of the claimant/s.

9. In view of the above facts, the aforesaid discussion and observations, M.A.C.P. No.267 of 1991 is ordered to be remanded back to the concerned Tribunal with a specific direction that from the date of order of 17.03.2010 till the date of the present order, i.e. 30.11.2023, if at all any liability is laid down for payment of compensation, the appellants would not be entitled for the interest thereon. The issues be framed after serving the parties on record. After service, thereafter, the learned Tribunal is directed to decide the matter afresh within a period of five (5) months. Record and proceedings, if any, be sent back to the concerned Court / Tribunal forthwith.

Sd/-

(GITA GOPI, J) CAROLINE / # 84 Page 6 of 6 Downloaded on : Sat Dec 02 20:40:03 IST 2023