Gujarat High Court
Aspan Nagshi Gadhvi vs Pareshpuri Shivpuri Goswami on 3 April, 2025
NEUTRAL CITATION
C/FA/655/2025 ORDER DATED: 03/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 655 of 2025
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ASPAN NAGSHI GADHVI
Versus
PARESHPURI SHIVPURI GOSWAMI & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
DS AFF.NOT FILED (N) for the Defendant(s) No. 1,2,3
NOTICE NOT RECD BACK for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 3
NOTICE THROUGH RPAD NOT RECEIVED BACK for the Defendant(s) No.
1,2,3
NOTICE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/04/2025
ORAL ORDER
1. This Appeal is filed challenging the judgment and award dated 01.07.2022 passed by learned Motor Accident Claims Tribunal (Aux), Kachchh at Bhuj in Motor Accident Claim Petition No.149 of 2017.
2. Heard learned advocate Mr. Nishit A. Bhalodi for appellants.
3. The brief facts narrated in the petition are as under:
3.1 Claimant-appellant filed a claim application under Section Page 1 of 13 Uploaded by RINKU MALI(HC01574) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 22:00:42 IST 2025 NEUTRAL CITATION C/FA/655/2025 ORDER DATED: 03/04/2025 undefined 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") claiming compensation of Rs.41,14,000/- against opponents. It is alleged in the claim application that on 31.03.2016 at 10:30 hrs, claimant was riding Motorcycle bearing Registration No.GJ-12-AS-2372, very carefully and by following traffic rules. Opponent No.1 came from back side by driving Bolero Car bearing Registration No.GJ-12-BF-8678 with an excessive speed in rash and negligent manner and dashed with the motorcycle. Out of the said vehicular accident, claimant sustained serious injuries. A complaint was registered against the driver of a white colour unknown Mahindra XUV-
500 by Mundra Marin Police Station vide I-CR No.9 of 2016. It is the case of the claimant that accident has occurred because of rash and negligent driving of driver of Bolero Car. Notice of claim petition was served upon opponent Nos.1 and 2 who are owner and driver of the Bolero Car but they did not remain present. Opponent No.3-Insurance Company appeared and filed Written Statement at Exhibit-22. Issues were framed at Exhibit-Page 2 of 13 Uploaded by RINKU MALI(HC01574) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 22:00:42 IST 2025
NEUTRAL CITATION C/FA/655/2025 ORDER DATED: 03/04/2025 undefined
15. In the claim petition, claimant was examined at Exhibit-28 and claimant produced FIR, Panchnama, Charge-sheet, Driving Licence and R.C. Book of Bolero Car and other medical papers in support of claim petition. After considering the evidence on record, learned Tribunal dismissed the claim petition. 3.2. Being aggrieved and dissatisfied with the impugned judgment and award, the present appellant-original claimant has filed the present First Appeal before this Court.
4. At the outset, learned advocate for the appellant has submitted that learned Tribunal has not followed the provisions of the Act, and more particularly, Sections 169 and 158(6) of the Act. It is submitted that FIR which was registered against driver of an unknown vehicle Mahindra XUV-500 of white colour. Charge-sheet was filed against driver of Bolero Car which is produced at Exhibit-32. However, learned Tribunal considered R.C. Book of Bolero Car and came to a conclusion that as per the R.C. Book, the colour of vehicle is java brown. It is further Page 3 of 13 Uploaded by RINKU MALI(HC01574) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 22:00:42 IST 2025 NEUTRAL CITATION C/FA/655/2025 ORDER DATED: 03/04/2025 undefined submitted that when there is a question with regard to the involvement of the vehicle, learned Tribunal ought to have resorted to the provisions contained in the Act. 4.1. In support of submissions, learned advocate for the appellant has placed reliance upon the decision of Hon'ble Supreme Court in the case of Jai Prakash Versus National Insurance Company Limited reported in (2010) 2 SCC 607 and submitted that learned Tribunal ought to have called for Form No.54 along with Police Investigation Report as per Section 156(4) of the Act. It is therefore, submitted that the matter may be remanded back by giving necessary directions to the learned Tribunal to comply with the directions issued by the Hon'ble Apex Court in the case of Jai Prakash (supra).
5. I have considered submissions of the learned advocate for the appellant and also perused the impugned judgment and award. It appears that claimant has alleged in the claim petition that on the date of accident, driver of Bolero Car bearing Page 4 of 13 Uploaded by RINKU MALI(HC01574) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 22:00:42 IST 2025 NEUTRAL CITATION C/FA/655/2025 ORDER DATED: 03/04/2025 undefined Registration No.GJ-12-BF-8678 came in rash and negligent manner and dashed with motorcycle which resulted into serious injuries to the claimant. A complaint being I-CR No.9 of 2016 was registered against driver of white colour unknown Mahindra XUV-500 by Mundra Marin Police Station. Learned Tribunal has considered R.C. Book of Bolero Car which mentions colour of Bolero Car as java brown. In the cross-examination, claimant has also stated that FIR is lodged against unknown vehicle XUV-500. On perusal of the impugned judgment and award, it appears that learned Tribunal has considered the fact that in the case papers of Government Hospital, Mundra, wherein treatment was taken by claimants, indicates that accident has occurred because of involvement of a Scorpio Car with Motorcycle. In the present case, there is a serious question with regard to which vehicle was involved in the accident. In the cases where there is doubt or there is no ample evidence with regard to the involvement of the vehicle in the occurrence of accident, learned Tribunal ought to have followed the provisions Page 5 of 13 Uploaded by RINKU MALI(HC01574) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 22:00:42 IST 2025 NEUTRAL CITATION C/FA/655/2025 ORDER DATED: 03/04/2025 undefined of Section 169 of the Act, which mandates procedure and powers of claim Tribunals. Section 169 is reproduced as under:-
"169. Procedure and powers of Claims Tribunals. - (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed;
and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry. [(4) For the purpose of enforcement of its award, the Claims Tribunal shall also have all the powers of a Civil Court in the execution of a decree under the Code of Civil Procedure, 1908, as if the award were a decree for the payment of money passed by such court in a civil suit.]"
6. Sub-Section 2 of Section 169 gives power to claims Tribunal that of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects.
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7. Section 158 of the Act, which is reproduced as under:-
"158. Production of certain certificates, licence and permit in certain cases. - (1) Any person driving a motor vehicle in any public place shall, on being so required by a police officer in uniform authorised in this behalf by the State Government, produce -
(a)the certificate of insurance;
(b)the certificate of registration;
(c)the pollution under control certificate;
(d)the driving licence;
(e)in the case of a transport vehicle, also the certificate of fitness referred to in section 56, and the permit; and
(f)any certificate or authorisation of exemption that has been granted under this Act, relating to the use of the vehicle.
(2) Where, owing to the presence of a motor vehicle in a public place, an accident occurs involving death or bodily injury to another person, if the driver of the vehicle does not at that time produce the required certificate, driving licence and permit referred to in sub-section (1) to a police officer, he or the owner shall produce the said certificates, licence and permit at the police station at which the driver makes the report required by section 134.
(3) No person shall be liable to conviction for offences under sub-
section (1) or sub-section (2) by reason of the failure to produce the required certificate if, within seven days from the date on which its production was required under sub-section (1), or as the case may be, from the date of occurrence of the accident, he produces the certificate at such police station as may have been specified by him to the police officer who required its production or, as the case may be, to the police officer at the site of the accident or to the officer-in-charge of the police station at which he reported the accident:
Provided that except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to the driver of a transport vehicle.
(4) The owner of a motor vehicle shall give such information as he may be required by or on behalf of a police officer empowered in this behalf by the State Government for the purpose of determining whether the vehicle was or was not being driven in contravention of section 146 and on any occasion when the driver was required under this section to produce the certificate of insurance.
(5) In this section, the expression "produce the certificate of insurance"Page 7 of 13 Uploaded by RINKU MALI(HC01574) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 22:00:42 IST 2025
NEUTRAL CITATION C/FA/655/2025 ORDER DATED: 03/04/2025 undefined means production for examination the relevant certificate of insurance or such other evidence as may be prescribed to prove that the vehicle was not being driven in contravention of section 146."
8. Section 158 of the Act deals with a procedure where upon receiving information regarding accident involving death or bodily injury to any person is recorded by a police officer, the officer in-charge of the Police Station shall forward a copy of the same within 30 days from the date of recording information and on completion of such report submit it to the claim Tribunals having jurisdiction. Once such report is submitted before learned Tribunals, under Sub-section 4 of Section 166, the Tribunal shall treat the report of accidents as an application for compensation under the Act.
9. In the case of Jai Prakash (supra), the Apex Court has issued directions to claim Tribunals, which in my view, learned Tribunals are not following in its letter and spirit. In paragraph Nos.20 and 21 of the said judgment, the Hon'ble Supreme Court has observed which are reproduced as under:
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NEUTRAL CITATION C/FA/655/2025 ORDER DATED: 03/04/2025 undefined "20. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents received under Section 158(6) of the Act as applications for compensation under Section 166(4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary registers, forms and other support is extended to the Tribunal to give effect to Section 166(4) of the Act.
21. For complying with Section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps:
(a) The Tribunal shall maintain an Institution register for recording the AIRs which are received from the Station House Officers of the police stations and register them as miscellaneous petitions. If any private claim petitions are directly filed with reference to an AIR, they should also be recorded in the register.
(b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to notify such date to the victim (family of victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident. Once the claimant(s) appear, the miscellaneous application shall be converted to claim petition. Where a claimant(s) file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.
(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any "police officer-advocate-doctor" nexus, which has come to light in several cases).
(d) The Tribunal shall by a summary enquiry ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.
(e) The Tribunal shall categories the claim cases registered, into those where the insurer disputes liability Page 9 of 13 Uploaded by RINKU MALI(HC01574) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 22:00:42 IST 2025 NEUTRAL CITATION C/FA/655/2025 ORDER DATED: 03/04/2025 undefined and those where the insurer does not dispute the liability.
(f) Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition.
(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the Claims Tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in a fixed deposit and disbursed as per the directions contained in Kerala SRTC. V. Susamma Thomsas.
(h) As the proceedings initiated in pursuance of Section 158(6) and 166(4) of the Act, are different in nature from an application by the victim(s) under Section 166(1) of the Act, Section 170 will not apply. The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation."
10. In many of the cases, such as the present one, learned Tribunals instead of following the directions issued by Apex Court, straightaway conduct the motor accident cases without seeking any reports from the police Officer under whose jurisdiction, accident has occurred.
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11. It appears from the facts narrated by learned Tribunal in its award that there was no clarity as to which vehicle was involved in the accident. In such cases, as discussed above, rather than resorting to the provisions of Section 158(6) and Section 169 of the Act, learned Tribunal straightaway decided the claim petition and dismissed on the ground that claimants could not establish as to which vehicle was involved in the accident. As observed by learned Tribunal, this is a case of hit and run and as per the statement of claimant in the cross-examination, the accident has occurred by an unknown vehicle which was not traced out. When learned Tribunal was having evidence to the fact that the accident has occurred by an unknown vehicle, it ought to have called for Form No.54 and other police papers which are mandatory. Instead of calling reports from the concerned police authority, learned Tribunal decided claim application which is against the settled law laid down in the case of Jai Prakash (supra).
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12. In the backdrop of the above facts, the judgment and award dated 01.07.2022 passed by learned Motor Accident Claims Tribunal (Aux), Kachchh at Bhuj in Motor Accident Claim Petition No.149 of 2017, is hereby quashed and set aside with a direction to the learned Tribunal to follow the directions given by the Hon'ble Supreme Court in the case of Jai Prakash (supra). The process of calling reports from the concerned police authority shall be undertaken within a period of 10 days from the date of receipt of a copy of this order and once the police machinery is put into motion, the concerned jurisdictional police authority shall complete the process of investigation and submit a report within a period of 15 days thereof. Upon the receipt of report from the jurisdictional police authority, learned Tribunal shall see that claim petition is heard afresh and shall decide the claim petition preferably within a period of three months from the date of receipt of the report from the concerned police authority.
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13. All the concerned parities are directed to give full co- operation to the learned Tribunal in disposing of the claim petition without seeking any unnecessary adjournments.
14. Parties are directed to produce any evidence, if they wish to, within a period of 15 days from the submission of report by jurisdictional police authority before the learned Tribunal, thereafter, parties shall not allowed to submit any documentary evidence in support of their respective cases.
15. Record and proceedings, if any, be sent back to the learned Tribunal forthwith.
(D. M. DESAI,J) RINKU MALI Page 13 of 13 Uploaded by RINKU MALI(HC01574) on Tue Apr 08 2025 Downloaded on : Tue Apr 08 22:00:42 IST 2025