Gujarat High Court
Devabhai Dhulabhai Patel vs Damor Gokulbhai Damjibhai on 22 April, 2025
NEUTRAL CITATION
C/FA/1490/2012 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1490 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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DEVABHAI DHULABHAI PATEL & ORS.
Versus
DAMOR GOKULBHAI DAMJIBHAI & ORS.
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Appearance:
MR KASHYAP R JOSHI(2133) for the Appellant(s) No. 1,2,3,4,5,6
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4
MR PUSHPADATTA VYAS(1296) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 22/04/2025
ORAL JUDGMENT
1. This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 challenging the judgment and award / decree dated 21.03.2011 passed in MACP No.399 of 2003 by learned Motor Accident Claims Tribunal (Main), Bharuch.
2. Heard learned advocate Mr. Kashyap R. Joshi for the appellants, learned advocate Mr. Palak H. Thakkar for Page 1 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined respondent No.4 and learned advocate Mr. Pushpadatta Vyas for respondent No.2. Though served, none appeared for respondent No.3.
3. The brief facts of the case are as under:-
3.1. It is the case of claimants in the petition that on 25.02.2003 at around 1.30 p.m., deceased was coming on Suzuki Motorcycle bearing Registration No.GJ-16-J-4320 on Bharuj-
Dahej Road near Vasedra village within the jurisdiction of Bharuch Rural Police Station after completing his duties. A tanker bearing Registration No.GJ-16-U-9991 being driven by opponent No.1 came from Bharuch side. As other two vehicles were passing nearby the said tanker in full speed, driver of the tanker tried to take tanker on right side but as tanker was loaded with water, he lost control over the vehicle and went on wrong side and dashed with Suzuki Motorcycle. Resultantly, deceased sustained injuries and succumbed on the spot. FIR was lodged by cleaner of tanker. Legal heirs of deceased filed a clam Page 2 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined petition before the learned Tribunal claiming compensation of Rs.20,00,000/-. Though opponent Nos.1 and 3 were served with notice of the claim petition but they did not remain present to contest the claim application. Opponent No.2 appeared and filed Written Statement at Exhibit-33. Opponent No.4-Insurance Company though served did not file any written statement. Claimant No.3 widow of deceased filed examination-in-chief at Exhibit-45. Opponent No.2 owner of tanker has filed examination-in-chief at Exhibit-103. Opponent No.2 examined one witness at Exhibit-113 who is the Sarpanch of Gram Panchyat, Vesadra. Claimants have produced FIR, copy of additional statement of the complainant, panchnama of the scene of accident and statements taken by police of different witnesses and other documents in support of claim petition. After considering the evidence and material available on record, learned Tribunal rejected the claim application. 3.2. Being aggrieved and dissatisfied with the impugned Page 3 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined judgment and order of dismissal of claim petition, appellants- original claimants have filed present First Appeal.
4. Learned advocate for the appellant submits that deceased was on the date of accident coming back from Dahej road to Bharuch on motorcycle TVS Suzuki and tanker dashed with motorcycle. Because of the accidental injuries, deceased succumbed. The cleaner of the tanker lodged FIR on 25.02.2003 but did not mention the involvement of motorcycle in the accident. On the next date, a further statement of the complainant was recorded, wherein he has stated that tanker dashed with Suzuki Motorcycle. Panchnama of the place of accident was done on 26.06.2003. Before the submission of charge-sheet, police has recorded statements of various persons including the statements of the employees of opponent No.2- onwer of tanker and all those persons whose statements were recorded by police have stated that tanker had dashed with motorcyclist. The statements recorded by police are produced at Page 4 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined Exhibit-88 to 100. However, learned Tribunal has failed to appreciate such statements and held that claimants have failed to establish involvement of tanker in the accident in question. Learned advocate for the appellants has further submitted that in the cases where the involvement of the vehicles is at stake, learned Tribunals ought to have resorted to the provisions of Section 169 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'). Section 169 of the Act is reproduced for the sake of convenience.
"69. 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 Page 5 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined 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."
It is submitted that the provision gives powers of a Civil Court to Tribunals 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. Learned Tribunal ought to have called for the reports of the investigation which was done by the jurisdictional police authorities and ought to have inquired with regard to the involvement of tanker in the event of accident. 4.1. The Panchnama of the place of accident which has been relied upon by learned advocate for the appellants reveals that Suzuki Motorcycle bearing Registration No.GJ-16-J-4320 was lying at the spot of accident in a damaged condition. Tanker involved in the accident bearing Registration GJ-16-U-9991 was also found at the place of accident. It is submitted that when vehicles are found on the spot of accident, presumption can also Page 6 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined be drawn that the accident has occurred because of involvement of tanker. A charge-sheet was also filed on 13.05.2003, wherein it is mentioned that driver of tanker was driving the vehicle in a rash and negligent manner and dashed with motorcyclist. However, during the course of submission, learned advocate for the appellant has placed on record a simple copy of order dated 17.04.2017 passed in Criminal Case No.9059 of 2003, wherein, learned 4th Additional Judicial Magistrate, First Class, Bharuch acquitting driver by invoking the provisions of Section 258 of Criminal Procedure Code. The reason assigned in the order for acquittal is that the investigating officer could not produce death certificate of accused for a long period of time. The said order is taken on record. The copy of order is taken on record. 4.2. It is further contended that an application Exhibit-48 was tendered by claimants to issue witness summons to Investigating Officer to remain present with documents mentioned in Exhibit-
48. Summons was issued to the Investigating Officer. However, Page 7 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined despite service of summons, the Investigating Officer did not remain present with the required documents. When claimants made an attempt to prove the involvement of the vehicle and when Investigating Officer did not co-operate in bringing the material on record, learned Tribunal has erred in coming to the conclusion that claimants have failed to establish the involvement of the vehicle.
4.3. In support of submission, learned advocate for the appellants has placed reliance upon the decision in the case of Hiraben mangabhai & Ors versus Maganbhai Somabhai & Ors. reported in 1997 (1) G.L.H. 837.
4.4. It is submitted that in the cases of vehicular accident, statements recorded by the police during the investigation can be used and statements made by driver of the vehicle involved in the accident is admissible in evidence.
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NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined
5. Per contra, learned advocate for respondent No.2 has vehemently submitted that there is no flaw in the findings of learned Tribunal and he has supported the impugned judgment and award. It is submitted that original opponent No.2 who was the owner of the tanker has examined the Sarpanch of village Vesadra at Exhibit-113-Raj Kanak Singh. As per deposition of the said witness, he had visited the place of accident and he found damaged tanker on road side and found that three persons who were injured were shifted in Hospital at Bharuch. However, he has denied the fact of involvement of motorcycle in the accident. The evidence of said witness carries more weight than the statements recorded by police. It is further submitted that police has not recorded the statements of said witness. The oral deposition of the owner of tanker which is recorded at Exhibit- 103 also establishes the fact that tanker was not involved in the accident. It is further submitted that none of the witnesses whose statements recorded by police were examined by claimants before learned Tribunal and therefore, the statements which are Page 9 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined relied upon by claimants are not in its sense evidence to hold that tanker is involved in the accident.
5.1. When claimants have failed to establish involvement of the tanker in the accident, no interference is required in the finding of fact and the appeal may be dismissed.
6. Learned advocate Mr. Palak H. Thakkar for respondent No.4 has supported the impugned judgment and award and submitted that impugned judgment and award is just and reasonable and therefore, appeal may be dismissed.
7. I have considered the submissions canvassed by learned advocates for the parties and have perused record and proceedings. It appears from the complaint filed by cleaner of tanker, which is found at Exhibit-84, that on the date of accident, driver of tanker was rashly driving vehicle and the tanker was loaded with water. When the tanker reached near the boundary of village Vasedra, two vehicles came from opposite Page 10 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined direction and passed through the tanker in high speed. The third vehicle which was trying to overtake other vehicle came in front of tanker. Resultantly, opponent No.1 lost control over the steering and went on wrong side and dashed with a tree. Because of that, complainant as well as other three persons including driver of tanker were injured and were taken to Hospital for treatment. In Exhibit-84, complainant has not mentioned about the tanker being dashed with the Suzuki Motorcyclist but on the next date i.e. on 26.02.2003, in further statement, complainant has stated that tanker dashed with Suzuki Motorcyclist and thereafter dashed with a tree. It is also stated by complainant that driver of tanker went on wrong side and dashed with Motorcycle which was drivern by deceased. Panchnama of the place of incident produced at Exhibit-85 also indicates presence of tanker as well as Suzuki Motorcyclist in a damaged condition. P.M. report also suggests that the cause of death is accidental injuries. Charge-sheet was also filed however, the same was not exhibited but while deciding claim Page 11 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined application, Tribunal has not given due consideration to the statements recorded by police authority during the course of investigation which are produced vide Exhibit-88 to 92. In all the statements, all witnesses have stated that tanker had dashed with Suzuki Motorcycle and the accident has taken place. Ranchhodbhai Devabhai Patel who is the brother of deceased has also deposed before learned Tribunal at Exhibit-47 has also confirmed that deceased was driving motorcycle on the date of accident and the driver of tanker who was rash and negligent, dashed with Motorcycle which resulted into death of his brother. It is pertinent to observe that while discussing the issue of involvement of Tanker in the accident, in the oral deposition of claimant which is recorded at Exhibit-45, has relied upon the statements recorded by police during the investigation. However, the opponents have failed to cross-examine claimants on either veracity or authenticity of the statements and nothing contradictory evidence surfaced on record. Except only general questions of denial there is no effective and prposeful cross- Page 12 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025
NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined examination was done on the question of involvement of Tanker in the accident. Even in the cross-examination of witness who has been examined by claimants, opponents could not extract any clinching adverse material. Reliance is placed upon by learned advocate for the respondent No.2 on the oral deposition of Raj Kanak Singh but if the oral deposition of the said witness is scrutinized, it does not help the case of respondent for the reason that the said witness after seeing the place of accident has neither reported to the police authorities nor tried to find out the cause of accident. When the Panchnama clearly indicates the presence both the vehicles at the place of accident in damaged condition, oral version of the witness Raj Kanak Singh is not trustworthy.
8. Learned Tribunal had a good opportunity to inquire with regard to the question of involvement of the vehicle and the powers are given to the Tribunals in Section 169 of the Act. Sub-section 2 of Section 169 of the Act gives power to the Tribunals to take evidence on oath and of enforcing the Page 13 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined attendance of witnesses and of compelling the discovery and production of documents and material objects and while exercising such powers, Tribunals are functioning as Civil Courts. It would be apt to refer the decision of Jay Prakash versus National Insurance Company Limited & Ors reported in (2010) 2 SCC 607 wherein, the Hon'ble Apex Court has given directions to the claims Tribunals and suggestions are also given for the Insurance Company in paragraph Nos.20 and 21. In the said paragraphs, the Hon'ble Apex has directed as under;
"20. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents receive 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 Page 14 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined 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 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 Fixed deposit and disbursed as per the directions contained in General Page 15 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined Manager, KSRTC v. Susamma Thomas [1994 (2) SCC 176].
(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."
9. It is unfortunate that this Court has found in number of claim petitions, where a question of involvement of the vehicle is raised, and without following guidelines issued by the Hon'ble Apex Court, Tribunals tend to decide claim applications in a casual manner. Tribunals are expected to follow guidelines issued by the Hon'ble Apex Court and should decide the claim petitions after having ample evidence with regard to either involvement of the vehicle or non-involvement of the vehicle in accident.
10. In the present case, though learned Tribunal had enough evidence for its consideration, failed to appreciate the evidence with regard to the involvement of the vehicle. More particularly, Page 16 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined when there is no effective cross-examination with regard to the statements recorded before the jurisdictional police authority, Tribunal ought not to have taken a hypertechnical approach in dismissing the claim application. Instead of resorting to the provisions of Section 169 of the Act, learned Tribunal decided the application mainly on the evidence of a witness-Raj Kanak Singh. The claimants, it appears, that, did make an attempt to call upon the investigating officer to produce the statements of the witness despite notice being issued by learned Tribunal and which was duly received by the concerned Police Station. The Investigating Officer reasons best known to him did not remain present and openly violated the order of issuance witness summons. This is in its sense a very serious issue. When Court issues notice to the witness to remain present with documents and more particularly, to the Investigating officer, who has investigated into the complaint filed by complainant, has an attitude not to remain present and flouted the order of the learned Tribunal. Learned advocate for the appellants could not Page 17 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined point out from the record as to what steps were taken by the claimant or by the learned Tribunal in complete violation of the order passed by learned Tribunal. It is the legal duty of the Investigating Officer to remain present in the Tribunal / Court with the documents mentioned in the witness summons. Learned Tribunal has completely overlooked the conduct of the Investigating Officer and erred in observing that no witness have been examined by claimants to establish the involvement of the vehicle. It is apt to observe that if witness summons issued by learned Tribunal has been openly breached, appropriate legal remedy could have been resorted to by learned Tribunal. A non-bailable warrant should have been issued against the concerned Investigating Officer for non-remaining present before Tribunal. However, learned Tribunal failed to resort to such legal remedy which was available under the law. In majority of the cases for compensation under the Motor Vehicles Act, eyewitness is not available. In cases where eyewitness/es / is /are not available, tribunal can FIR, Page 18 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined Panchnama, Charge-sheet and the statements recorded by police during the investigation and decide claim application on material available. If FIR and Panchnama are not sufficient in coming to a conclusion on an issue of involvement of offending vehicle/s, Tribunal should take resort to provisions contained in Section 169 of Motor Vehicle Act.
11. It is submission of learned advocate for the appellants that claimants have also produced other evidence for proving income. It is contended that on the date of accident, deceased was serving as an Assistant Labour Officer at Vaghra and Exhibit-54 is the oral deposition of the witness from the office of Assistant Labour Office, Vaghra. The said witness has established through documentary evidence income of deceased and other relevant facts which are stated by claimants in her cross-examination and also in the claim petition. The appreciation of the evidence on income for awarding just and reasonable compensation, it would be desirable to remand the Page 19 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined claim petition for its due adjudication. To such submission there was no resistance from respondents.
12. In view of the above discussion, First Appeal stands allowed accordingly. The judgment and award / decree dated 21.03.2011 passed in MACP No.399 of 2003 by learned Motor Accident Claims Tribunal (Main), Bharuch is hereby quashed and set aside and it is held that Tanker bearing Registration No.GJ-16-U-9991 is involved in the accident which has occurred on 25.02.2003 and finding to the effect of non- involvement of the vehicle is hereby quashed and set aside.
13. Learned Tribunal shall decide claim application, except, the question of involvement of vehicle, within a period of four months from the receipt of the copy of this order.
14. It is clarified that learned Tribunal shall decide the claim petition on the basis of oral as well as documentary evidence produced by the parties and parties to the claim petition are not Page 20 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025 NEUTRAL CITATION C/FA/1490/2012 JUDGMENT DATED: 22/04/2025 undefined allowed to lead any further oral or documentary evidence. It is directed that parties shall give full cooperation to the learned Tribunal in deciding the claim application without seeking unnecessary adjournments.
15. Record and proceeding, if any, be sent back to learned Tribunal / Court.
(D. M. DESAI,J) RINKU MALI Page 21 of 21 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 06:10:48 IST 2025