NEUTRAL CITATION
C/FA/2349/2010 JUDGMENT DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2349 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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JAMNADAS DHANUBHAI PATEL
Versus
YOGESHBHAI AMUBHAI GHELANI & 2 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Appellant(s) No. 1
MR AKSHAY A VAKIL(5473) for the Defendant(s) No. 2,3
MR DIGANT M POPAT(5385) for the Defendant(s) No. 1
MR MANOJ N POPAT(671) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 04/09/2023
ORAL JUDGMENT
[1] By way of present First Appeal under Section 96 of the Civil Procedure Code, a challenge is made to decision dated Page 1 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined 01.02.2010 passed by the learned 2nd Additional Civil Judge, Jamnagar whereby the suit proceedings i.e. Special Civil Suit No.142 of 1993 - Regular Civil Suit No.328 of 1994 came to be partly allowed and the opponents are jointly and severally held responsible for payment of Rs.15,000/- to both the plaintiffs with simple interest at the rate of 9% with effect from 24.08.1992 and it is this order is made the subject matter of present appeal. [2] The brief background of the facts are that on 24.08.1992 at about 10.45 p.m. both these plaintiffs, who are closely related, were on their vehicle Luna near Old Railway Station and with a view to pouring the petrol, went to the Petrol Pump held by original defendants. At that juncture, on account of sudden blast in the machine of Petrol Pump, both these plaintiffs have sustained serious injuries and were shifted to Irvin Hospital, Jamnagar. The original plaintiff - Jamnadas Dhanubhai Patel sustained serious injuries all over the body and also received serious injuries in the eyes. This plaintiff could not get any respite and as such was shifted to Eye Hospital of Dr. Nagpal at Ahmedabad and wherein after prolonged Page 2 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined treatment, this plaintiff had lost vision to the extent of 100%. On account of this serious injuries, plaintiff - Jamnadas Dhanubhai Patel had not only incurred heavy expenditure of medical treatment, but has sustained several damages. Similar is the case with respect to other plaintiff and as such both these plaintiffs have filed suit proceedings for the purpose of seeking compensation from the opponents under the various heads. The suits have been registered as Special Civil Suit No.142 of 1993 whereas another as Regular Civil Suit No.328 of 1994 since both the suits are related to very same controversy, arisen on account of the same incident, by way of passing an order of consolidation, both the suits were adjudicated together and after considering the submissions and the record, the learned 2nd Additional Civil Judge, Jamnagar was pleased to partly allow these suits vide judgment and order dated 01.02.2010. [3] The present First Appeal, challenging the said judgment and order, appears to have been admitted way back on 25.11.2010 and after receiving the record and proceedings, the same has come up for consideration finally before this Court Page 3 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined wherein today, upon the request of both the learned advocates, present First Appeal is taken up for hearing. [4] Mr. Dipak R. Dave, learned advocate appearing for the appellant has vehemently contended that while passing the impugned judgment and order, the learned Court below has not properly appreciated the material and on the contrary, has arrived at a conclusion as if the plaintiff has not produced any documentary evidence nor laid any material to substantiate the claim and as such, while passing the order since the Court below has not considered the material which has already been produced on record, the order suffers from vice of non- application of mind and as such perverse. Accordingly, the same is required to be corrected by quashing and aside the order.
[4.1] Mr. Dave, learned advocate has further submitted that the observations which are made in the order that plaintiffs have not produced any documentary evidence nor has established the material on record during the course of deposition, the same Page 4 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined finding and the observations are quite in conflict with the relevant record and for that purpose, Mr. Dave, learned advocate has drawn the attention of this Court to the record and proceedings and after bringing it to the notice of the Court such record and proceedings, a contention is reiterated that the order is suffering from vice of non-application of mind. It has been submitted that, on the contrary, on account of such serious incident, the negligence is apparently established, but be that as it may, even if that be so, the occurrence of the incident at the Petrol Pump held by opponent have not been in dispute and injury which has been sustained is also evident from the record, which is reflecting.
[4.2] It has been submitted that during the course of adjudication of the suits, one of Doctors was also summoned as a witness, and the said Doctor, Mr. D.D.Parmar, has also led some documentary evidence in the original form. This material is very much a forming part of the record and the same having not been perused and held by the Court below that the appellant has not laid any material. This finding is absolutely erroneous Page 5 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined and on this count alone, the order requires to be quashed and set aside.
[4.3] To further elaborate his submission, Mr. Dave, learned advocate has drawn the attention of the Court to an application for witness summons at Exh.24, reflecting at page 149 of paper book compilation, and another Exh. i.e. Exh.27 which is clearly reflecting that the witness Doctor D.D.Parmar has produced not only the injury certificate of the plaintiff, but has also produced in origin the medical papers including a X-Ray report and this material is very much forming part of the record of the case. [4.4] In addition thereto, Mr. Dave, learned advocate has pointed out the deposition of one of plaintiffs, i.e. Jamnadas Dhanubhai Patel at Exh. 44, in which also, not only in examination-in-chief these documents have been referred to, but in cross-examination also, the same has not been countenance by the opponent. So when such material in the original form is very much available on record, the observation made by the learned Judge as if nothing is produced nor established by the Page 6 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined plaintiff is nothing but a clear example of non-application of mind and this is a classic case of perversity reflecting in an order and as such the same is required to be quashed and set aside.
[5] As against this, Mr. Manoj N. Popat, learned advocate appearing on behalf of the opponent No.1 as well Mr. Akshay A. Vakil, learned advocate appearing for opponent Nos.2 & 3 have tried to made an attempt that the manner in which the documents are required to be established have not been established so far and that has led the learned Judge to pass an order and as such in the background of this fact, no error can be found by the Court about the exercise which has been undertaken by the learned Judge. Since the original plaintiffs have not established their case in the manner in which it is to be established, the non-reference of such material would not vitiate the entire order, and as such, the order passed by the learned Judge requires no interference.
[5.1] In addition to that, both the learned advocates, in chorus, Page 7 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined have also submitted that on the basis of material, on the contrary, an amount of Rs.15,000/- has already been awarded in addition to 9% simple interest and that would be sufficient enough for the original plaintiff and as such in the absence of any perversity or material irregularity, no interference be made in the interest of justice. However, at the fag end of the submissions, both the learned advocates on the basis of material which is reflecting on the record have candidly submitted that if the Court is inclined to remand the matter back for fresh consideration there may not be any much reservation and as such with the broad consensus of learned advocates appearing on behalf of both the sides, a request is made to dispose of present First Appeal.
[6] Having heard learned advocates appearing for the parties and having gone through the material on record, the observations which have been made by the learned Judge to the effect that the original plaintiffs have not placed any material to substantiate the claim or to establish the injury which has taken place and further in paragraph 13 observed that though Page 8 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined document might have been produced in the form of mark but the same having not been established, do not require acceptance and cannot be treated as evidence. These observations basically which have been made to pass an order if to be considered in the light of material, which have been reflecting on record and proceedings, this Court is of the clear opinion that order suffers from the vice of non-application of mind as well as perversity. The record and proceedings which have been called for and perused the same in the context of observation which has been made, it appears that an application for witness summons along with production of documents have been given in specific form and the said application has been registered at Exh.24 which is reflecting on page 149 of the paper book compilation. The said application dated 30.12.1997 has been entertained by the learned trial Judge and by issuance of summons, in that context, Dr. D. D. Parmar has stood as a witness and produced the original document, the same reflecting at Exh.27. A perusal of the said Exh.27 would indicate that the said doctor has produced in original form the injuries certificates of the plaintiff as well as all relevant papers Page 9 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined indicating the treatment of plaintiff and also produced the original X-Ray Film which material has been taken on record and after receiving the copy, an endorsement is also made by the learned advocate appearing on behalf of the deponent "as recorded" .
[7] In addition thereto, the deposition which has been recorded at Exh.44 of one of the plaintiffs - Jamnadas Dhanubhai Patel and a perusal of the said deposition would clearly indicate that not only the rigorous medical treatment is taken by him at Irvin Hospital, Jamnagar, but also Dr. Jayesh Tahkore at Ahmedabad and M. M. Medical Center at Mumbai as well as Civil Hospital were also approached for seeking medical treatment. For approximately six months period, Eye Surgeon Dr. Nagpal at Ahmedabad was also treating the present one of the appellants, but despite such rigorous medical treatment, the plaintiff has not been able to see anything and there is a 100% loss in the eyes. Now these documents, related to these treatment, are also are very much referred to in the deposition of one of the plaintiffs and in cross-examination also, the same Page 10 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined has also been touched. If that be so, the conclusion arrived at by the Court below as if nothing is produced by the appellant nor established is quite erroneous perverse to the record and this ground alone is sufficient enough to quash and set aside the impugned order, as a consequence of it, the fresh consideration deserves in the interest of justice.
[8] Apart from that, a perusal of the cross-examination of another witness at Exh.129, reflecting on page 445 onward also, would clearly indicating the factum of injuries sustained by these original plaintiffs - present appellants and as such by no stretch of imagination, it is possible to accept the conclusion arrived at by the Court below.
[9] Apart from this, the observation made by the learned trial Judge about fixing and ascertaining liability of defendants inter se at one brief in the order, it has been submitted that the defendant No.1 is merely a dealer, and every monitoring of the units at Petrol Pump is the responsibility of defendant Nos. 2 and 3 and as such defendant No.1 is not responsible. But thereafter, if gradual process which has been reflecting from Page 11 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined later part of the judgment, it appears that the learned trial Judge has submitted that all the opponents are responsible for the amount of Rs.15,000/- which is awarded in lieu of original claim, as indicated above. Further, if this be the reason of the learned Judge that plaintiffs have not produced anything nor established any such injuries and compensation claim then in that case, there is absolutely no reason visible about awarding even of Rs.15,000/- as well. If the view taken by the learned trial Judge to be accepted that this awarding paltry amount of Rs.15,000/- also is not just and proper. However, when it has been clearly demonstrated by the learned advocate for the appellant on the basis of material on record that the fact of incident at Petrol Pump is not in dispute, the factum of sustaining of injuries of these plaintiffs at the incident has not been disputed and the record indicates that several original medical certificates as well as medical treatment papers are produced by the Doctor who has been call specifically as a witness, this Court is of the clear opinion that order in question is not sustainable in the eye of law and as such the same is required to be quashed and set aside. However, considering the Page 12 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined material which has not been discussed, though available on record, instead of examining the same at this stage, the Court deems it proper to remand the matter back for fresh consideration by the competent Court. As such, a strong case for remanding the case is made by the appellant to that extent. As a result of this, the Court is of the clear opinion that the following order would meet the ends of justice:
(i) The impugned dated 01.02.2010 passed by the learned 2nd Additional Civil Judge, Jamnagar whereby the suit proceedings i.e. Special Civil Suit No.142 of 1993 - Regular Civil Suit No.328 of 1994 is quashed and set aside with a consequential direction to re- consider and re-adjudicate the suits by the Court concerned after extending fresh opportunity to both the parties and on the basis of material on record, an appropriate decision be taken afresh in accordance with law after assigning proper reasons.
(ii) Since the issue about this compensation is churning in the litigation since long and looking to the Page 13 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023 NEUTRAL CITATION C/FA/2349/2010 JUDGMENT DATED: 04/09/2023 undefined advance age of both the original plaintiffs, Court is of the clear opinion that a fresh consideration should be made in a time bound schedule and as such the concerned Court shall try the case afresh in accordance with law as earlier as possible preferably within a period of SIX MONTHS from the date of certified copy of this order .
(iii) It is made clear that since the Court has remanded the matter back for fresh consideration on the basis of material which is existing on record, this Court has refrained itself from expressing any opinion on merit and the same shall be decided afresh independently in accordance with law.
(iv) With these observations, present First Appeal stands allowed to the aforesaid extent. Record and Proceedings sent forthwith.
Sd/-
(ASHUTOSH SHASTRI, J.) DHARMENDRA KUMAR Page 14 of 14 Downloaded on : Sat Sep 16 15:53:13 IST 2023