Gujarat High Court
Decd. Keshubhai Kalubhai Barotthro' ... vs Ganpatlal Mansukhlal Decd.Through The ... on 2 April, 2025
NEUTRAL CITATION
C/FA/5321/2007 JUDGMENT DATED: 02/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5321 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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DECD. KESHUBHAI KALUBHAI BAROTTHRO' HEIRS & ORS.
Versus
GANPATLAL MANSUKHLAL DECD.THROUGH THE LRS & ORS.
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Appearance:
MR P J YAGNIK(1004) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 02/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. P. J. Yagnik for the appellants and learned advocate Mr. H. G. Mazmudar for the respondent No.4. Rule could not be served upon respondent No.3. Perused the record.
2. The challenge in the present appeal is by the original claimants challenging the judgment and award dated 18.2.2006 passed by learned Court of Presiding Page 1 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:36:06 IST 2025 NEUTRAL CITATION C/FA/5321/2007 JUDGMENT DATED: 02/04/2025 undefined Officer, Fast Track Court No.3, Navrangpura, Ahmedabad (Rural) in M.A.C.P. No.1008 of 1996.
3. The facts in brief of the case are as under:
* On 11.3.1989 at about 3:16 hours, original claimant - Keshubhai Kalubhai Barot was travelling to Rajkot in a Swaraj Mazda No.GRP 5626. When he reached near Mithapur Bagodara Highway, one truck bearing registration No.GRU-4163 came from opposite direction in full speed and in a rash and negligent manner dashed with the car. Devjibhai, driver of Swaraj Mazda car was expired due to vehicular accident and the claimant sustained injuries and he was admitted to LG Hospital and, thereafter for further treatment he was admitted in Civil Hospital, Ahmedabad. The claimant sustained injuries over left leg, right leg and sustained injuries on eyes. The claimant also suffered dis-figuration of face due to two teeths broken.
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NEUTRAL CITATION C/FA/5321/2007 JUDGMENT DATED: 02/04/2025 undefined * The legal heirs of deceased filed a claim petition for a compensation of Rs.2,30,000/- before the learned Motor Accident Claims Tribunal, Navrangpura, Ahmedabad (Rural). Opponents were served with the notice of claim petition. * Opponent Nos.1 & 3 did not appear to contest the claim petition, however, opponent No.4 - insurance company appeared and filed Written Statement at Exh.29. Pending the claim petition, original claimant namely; Keshubhai Kalubhai Barot died naturally and the legal heirs of the deceased were brought on record. Issues were framed. * The widow of the deceased was examined at Exh.82 and has produced documentary evidence such as FIR, Panchnama and other documents in support the claim petition and certificate of Dr. Adiya Upadhyaya.
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NEUTRAL CITATION C/FA/5321/2007 JUDGMENT DATED: 02/04/2025 undefined * After considering the evidence on record and considering the submissions, learned Tribunal held that the driver of the Swaraj Mazda was negligent to the extent of 40% and the driver of the truck was held negligent to the extent of 60%. Learned tribunal partly allowed the claim petition by awarding Rs.9,000/- (60% of Rs.15,000/-) in favour of the claimants against the opponents with interest @ 7.5% p.a. and proportionate cost from the date of application till realisation from the opponents.
* Being aggrieved and dissatisfied with the impugned judgment and award - the appellants have preferred this appeal.
4. Learned advocate for the appellant has submitted that the accident has occurred on 11.3.1989. Pending the application, deceased died because of severe fatal injuries. The learned tribunal has not Page 4 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:36:06 IST 2025 NEUTRAL CITATION C/FA/5321/2007 JUDGMENT DATED: 02/04/2025 undefined properly considered the period of hospitalization of 52 days in all. However, learned tribunal has considered the cross examination of widow who has stated that deceased was admitted in hospital only for two days. It is submitted that claimants have produced documentary evidence which supports the contention that the victim was admitted in the hospital and has taken treatment for 52 days. Certificate of Dr. Upadhyaya has stated that the victim sustained 20% disability body as a whole. It is submitted that considering the fact that the widow was aged about 35 years and having 3 minor children on the date of application, lump-sum compensation may be awarded in favour of the claimants.
5. Per contra, learned advocate for respondent No.4 -
Insurance Company has supported the judgment and award and submitted that learned Tribunal has rightly considered the evidence on record and Page 5 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:36:06 IST 2025 NEUTRAL CITATION C/FA/5321/2007 JUDGMENT DATED: 02/04/2025 undefined awarded just and reasonable compensation. It is further submitted that evidence which is placed on record indicates that deceased had taken treatment in the hospital only for two days and there is no material on record to substantiate the contention of the appellant that victim was admitted in the hospital for 52 days. He has further submitted that there is no PM report of the deceased after death. Even the evidence which is coming on record states that the victim had continued in his service after he sustained injuries in the accident. Rest of the award passed by the learned Tribunal does not require any interference looking to the facts and circumstances of the case.
6. I have considered the submissions canvassed by learned advocates for the respective parties and perused Record and Proceedings. The claim application under the M.V. Act is benevolent legislation. The claimants cannot be deprived off the Page 6 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:36:06 IST 2025 NEUTRAL CITATION C/FA/5321/2007 JUDGMENT DATED: 02/04/2025 undefined compensation merely on technical ground such as non-proving of disability, income etc. Considering the peculiar set of facts such as deceased was aged about 35 years of age at the relevant point of time and after almost four years of present petition, the victim expired and widow and three minor sons were joined as legal representatives in the proceedings.
7. The record reveals that the claimant had sustained injuries out of vehicular accident and has taken treatment in the LG hospital as well as in the Limbdi Hospital. It appears that the claimants have not been able to establish the disability despite the fact that a certificate of Dr. Upadhyaya was produced on record. It also appears from the record that the driver of insurance company of the joint tort feasors namely; Swaraj Mazda are not joined in the claim petition. When learned Tribunal has found driver of Swaraj Mazda to the extent of 40% negligent, the claimants can recover the amount from either of the owner, Page 7 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:36:06 IST 2025 NEUTRAL CITATION C/FA/5321/2007 JUDGMENT DATED: 02/04/2025 undefined driver and insurance company of the offending vehicle. Considering the said fact, compensation of Rs.9,000/- which has been awarded in favour of claimant (60% of Rs.15,000/-) as lump-sum compensation to be recovered from opponent No.4 with interest @ 5% p.a. from the date of application till realisation. The respondent No.4 shall first pay the amount of compensation to the claimant and thereafter can recover from the owner and driver of the Swaraj Mazda Car, if so desires.
8. For the reasons recorded hereinabove, the following order is passed:
[A]. The present appeal is partly allowed accordingly in above terms.
[B]. The Insurance Company is directed to deposit the enhanced amount Rs.9,000/- with 5% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, Page 8 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 21:36:06 IST 2025 NEUTRAL CITATION C/FA/5321/2007 JUDGMENT DATED: 02/04/2025 undefined within a period of four weeks from the date of receipt of this order.
[C]. The Tribunal shall disburse the entire awarded amount lying in the FDR and / or with the Tribunal, with accrued interest thereon if any, to the claimant, by `Account Payee Cheque' / RTGS / NEFT', after proper verification and after following due procedure.
[D]. While making the payment, the Tribunal shall deduct the Courts fees, if not paid, in accordance with the Rules.
[E]. Record & Proceedings, if any, be sent back to the concerned Tribunal, forthwith.
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