Gujarat High Court
Desai Amrutbhai Motibhai vs Hanumanram Bhanvarlal Gurjar on 28 April, 2025
NEUTRAL CITATION
C/FA/853/2009 JUDGMENT DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 853 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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DESAI AMRUTBHAI MOTIBHAI
Versus
HANUMANRAM BHANVARLAL GURJAR & ORS.
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Appearance:
MR MP SHAH(2418) for the Appellant(s) No. 1
MS. KRUTI M SHAH(2428) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 5
MS HINA DESAI(1023) for the Defendant(s) No. 3
RULE SERVED BY DS for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 28/04/2025
ORAL JUDGMENT
1. Heard learned advocate Ms. Kruti M. Shah for the appellant, learned advocate Mr. Sunil B. Parikh for respondent No.5 while learned advocate Ms. Hina Desai for respondent No.3. Rule could not be served upon respondent Nos.1 and 2 while respondent No.4, though served, did not appear. Perused the record.
2. The challenge in the present appeal is with regard to the judgment and award dated 18.8.2007 passed by learned Page 1 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon May 05 2025 Downloaded on : Sat May 10 09:47:00 IST 2025 NEUTRAL CITATION C/FA/853/2009 JUDGMENT DATED: 28/04/2025 undefined Motor Accident Claims Tribunal (Aux), Viramgam, District Ahmedabad in M.A.C.P. No.54 of 2006.
3. The facts in brief of the case are as under:
* On 14.1.2006, the claimant was travelling in Qualis Car bearing registration No.GJ-03-W-9997 from Vadhvan to Viramgam. When the said car reached near the place Ramchhapri situated near Viramgam, opponent No.1 - driver of tanker bearing registration No.RJ-29-G-0276 came opposite side in full speed and dashed with the said car. Resultantly, claimant sustained severe injuries.
* The claimant filed a claim petition being MACP No.54 of 2006 before the learned Motor Accident Claims Tribunal claiming compensation of Rs.3,00,000/- from the opponents. Opponents were served with the notice of claim petition. Opponent Nos.1 and 2 did not appear to contest the claim petition, however, opponent No.3 - insurance company appeared and Page 2 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon May 05 2025 Downloaded on : Sat May 10 09:47:00 IST 2025 NEUTRAL CITATION C/FA/853/2009 JUDGMENT DATED: 28/04/2025 undefined filed Written Statement at Exh.24 and denied its liability. Opponent No.4 driver of car was deleted from the array of parties on 26.6.2007. Opponent No.5 - owner of the car though served, did not appear. Opponent No.6 - insurance company of the car appeared and filed Written Statement at Exh.15 and contested the claim petition. Issues were framed. * Claimant examined himself at Exh.27 and produced documentary evidence such as FIR, RC Book, Panchnama, Driving license, injury certificate in support of claim petition.
* After considering the evidence on record and considering the submissions, learned Tribunal dismissed the claim petition.
* Being aggrieved and dissatisfied with the impugned judgment and award - the appellant - original claimant has filed this appeal. Page 3 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon May 05 2025 Downloaded on : Sat May 10 09:47:00 IST 2025
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4. At the outset, learned advocate for the appellant submitted that the deceased was travelling in the Qualis Car on the date of accident and because of the rash and negligent driving of the driver of tanker, the accident occurred. Resultantly, the claimant sustained fractures in ribs and also sustained fracture in spine. He was admitted in Viramgam Government Hospital being registration number MLC 17 and, thereafter, he was shifted to Ahmedabad. Claimant was admitted in the hospital under the treatment of Dr. Dhaval Bhatia, where he was operated. On 1 st January, 2006, claimant was admitted at Ganesh Orthopedic Hospital and he was discharged from the said hospital on 25.1.2007. It is further submitted that complaint was filed by one Chandrasekhar Sumanrao on 14th January, 2006. Pursuant to the FIR, charge sheet was filed by the investigating officer which is produced at Exhibit 34 and the name of claimant is shown as Sr. No.16 as a witness. The disability certificate issued by Dr. Aditya Upadhyaya of Srirang Polyclinic and certificate issued by Dr. Babubhai Patel of Ganesh Orthopedic Hospital are Page 4 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon May 05 2025 Downloaded on : Sat May 10 09:47:00 IST 2025 NEUTRAL CITATION C/FA/853/2009 JUDGMENT DATED: 28/04/2025 undefined sufficient evidences. Whereby, the fact has been proved by claimant that he has sustained serious injuries in the accident. The X-ray report of Dr. Narendra Patel was also produced on record.
5. Per contra, learned advocate for respondents -
Insurance Companies have supported the judgment and award and submitted that learned Tribunal has rightly considered the evidence on record and awarded just and reasonable compensation. 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 submissions canvassed by learned advocates for the respective parties and perused the Record and Proceedings. The case set up by claimant in the claim application is that on 14.1.2006 while proceedings towards Viramgam from Vadhwan in Qualis Car because of rash and negligent driving of the driver of tanker, the accident occurred. It is coming out from the cross examination of the claimant which is recorded Page 5 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon May 05 2025 Downloaded on : Sat May 10 09:47:00 IST 2025 NEUTRAL CITATION C/FA/853/2009 JUDGMENT DATED: 28/04/2025 undefined at Exh.27 that claimant is a government employee. The complaint is filed by one Chandrashekhar Patvardhan (Exh.28) and as per his statement, three persons were sitting in the Qualis Car before the accident occurred with the tanker, the said car was dashed with another vehicle at the driver side. Resultantantly, smoke started coming out from the car despite the fact that driver of car continued with driving and after some time, the accident with the tanker occurred. Interestingly, as per the statement of the complainant which is reflected in the impugned award that after the mishap with the tanker, the car turned turtled on the side of the road and then the car came into original position and, thereafter, driver of the said car had started his car and brought it on the road and told the passengers to leave the car. The claimant has not examined the complainant, however, in the cross examination complainant has stated that he has no knowledge about the first accident before the Qualis car dashed with the tanker. Interestingly, the name of claimant is shown as witness in the charge-sheet at Sr. No.16. The claimant has Page 6 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon May 05 2025 Downloaded on : Sat May 10 09:47:00 IST 2025 NEUTRAL CITATION C/FA/853/2009 JUDGMENT DATED: 28/04/2025 undefined stated that he was admitted after the accident. He was admitted in Government Hospital, however, it appears that claimant has not produced any certificate of hospital to that effect. Claimant has not examined any officer of the government hospital to substantiate his say that he was admitted in the said hospital on 14.1.2006.
7. It is the common practice in the claim petitions that the claimant produce disability certificate much after filing of the claim petition which is also found in the present case. Disability certificate Exh.31 issued by Dr. Upadhyaya is dated 1.6.2007 and the certificate issued by Ganesh Orthopedic Hospital Exh.30 is of 2.11.2006. In the certificate Exh.30 of Ganesh Orthopedic Hospital, a mention is made about the admission of claimant at Medilink Hospital for treatment, however, record reveals that claimant has neither examined any Doctor from such hospital. It also appears that claimant has not examined Dr. B. C. Patel of Ganesh Orthopedic Hospital in support of the certificate Exh.30.
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8. In claim applications which is arising out of Motor Vehicles, preliminary burden is on the claimant to establish that he has sustained injuries in the vehicular accident and because of such vehicular accidental injuries, he has taken treatment in the hospital. In the cross examination Exh.27 claimant has admitted for the period from 14.1.2006 till 18.1.2006 for which, no proof has been produced to that effect. By placing reliance upon one X-ray, the disability of proving the burden of accidental injuries cannot be attributed. The disability certificate Exh.31 is of no significance and it seems that certificate is issued in a routine manner. Dr. Aditya Upadhyaya is known for issuing such certificates in almost accidental injury cases. The certificate issued by Dr. Aditya Upadhyaya is of no assistance to the claimant in establishing the fact that claimant has sustained injuries in the accident.
9. In totality of facts and circumstances of the case and considering the nature of accident, I am of the view that Page 8 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon May 05 2025 Downloaded on : Sat May 10 09:47:00 IST 2025 NEUTRAL CITATION C/FA/853/2009 JUDGMENT DATED: 28/04/2025 undefined present First Appeal is meritless and the same deserves to be dismissed and is dismissed accordingly.
10. R & P, if any, to be sent back to the concerned Court immediately. No order as to costs.
(D. M. DESAI,J) vk Page 9 of 9 Uploaded by VATSAL S. KOTECHA(HC00352) on Mon May 05 2025 Downloaded on : Sat May 10 09:47:00 IST 2025