Gujarat High Court
Jayaben Mahendrasinh Raj vs Bhikhabhai Maherbhai Rabari (Deleted) on 5 February, 2025
NEUTRAL CITATION
C/FA/126/2025 ORDER DATED: 05/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 126 of 2025
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JAYABEN MAHENDRASINH RAJ & ORS.
Versus
BHIKHABHAI MAHERBHAI RABARI (DELETED) & ANR.
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Appearance:
JATIN S SHERAWAT(9173) for the Appellant(s) No. 1,2,3
PRASHANTKUMAR R SHARMA(8591) for the Appellant(s) No. 1,2,3
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellants - original claimants being aggrieved and dissatisfied with the judgment and award dated 18.12.2021 passed by the Motor Accident Claims Tribunal, Vadodara in Motor Accident Claim Petition No.1100 of 2010.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 06.07.2010, the deceased riding Motorcycle No.GJ-06-BR-6088 had gone to Jambughoda and thereafter, he was going to Bodeli.
When he reached near the place of accident, one ST Bus No.GJ- 18-Y-1850 driven by its driver in rash and negligent manner came and dashed with the motorcycle of the deceased. As a result, the accident took place and deceased sustained severe Page 1 of 4 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:23:25 IST 2025 NEUTRAL CITATION C/FA/126/2025 ORDER DATED: 05/02/2025 undefined injuries and succumbed to the injuries. Therefore, offence to that effect is registered before the Jetpur-Pavi Police Station vide FIR being I-C.R.No.39 of 2010. The legal heirs of the deceased have filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.7,00,000/-. The learned Tribunal vide impugned judgment and award dated 18.12.2021 has dismissed the claim pettion. Hence, the present appeal.
3. I have heard learned advocates for the respective parties.
4. Learned advocate Mr.Sherawat for the claimants submits that the case where motorcycle driven by deceased dashed with ST bus would be a case of contributory negligence but it cannot be considered as case of full negligence on the part of the deceased. Learned advocate Mr.Sherawat would further submit to remand the matter for fresh consideration of evidence and also to permit the claimants to lead necessary evidence before the learned Tribunal.
5. Per contra, learned advocate Ms.Mandavia appearing for the S.T. Corporation having referred to para 10 of the impugned judgment and award as well as para 3 of the written statement would submit that at the time of road accident, ST bus had to stop near village Vishali for alighting the passengers. She would further submit that having seen the motorcyclist from opposite side in wrong direction, ST bus driver taken the bus further on left side to avoid accident, however, deceased lost his control over the motorcycle and dashed with the bus. She would further submit that learned Tribunal has assessed this issue and dismissed the claim petition. She would submit that since the Page 2 of 4 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:23:25 IST 2025 NEUTRAL CITATION C/FA/126/2025 ORDER DATED: 05/02/2025 undefined impugned judgment and award is full of rational reasons, the appeal may be dismissed.
6. Having heard learned advocates for both sides, at the outset, I may refer to para 10 of the impugned judgment and award which reads as under :
"10. As per the case of the claimants, the accident had occurred due to sole neglignece on the part of the driver of the ST bus. The respondents have examined the driver of the ST Bus. He in his affidavit vie Exh.31, has stated that at the time of accident, the ST Bus was in a very slow speed. The ST Bus had to stop for the passengers to alight. He saw a Motorcycle coming towards the ST Bus from the opposite direction and therefore, he had taken his ST Bus to his left to avoid collision. However, the rier of the Motorcycle could not control his vehicle and dashed with the ST Bus from the front on the driver's side. This version of the driver gets support from the panchnama at Exh.24."
7. It may be true that accident took place between two vehicles coming on sides and also that the ST bus driver entered into the witness box, the error of learned Tribunal which could be noticed that deceased was considered fully negligent in causing the road accident. As per submission of learned advocate Mr.Sherawat, it is a case of contributory negligence and not complete negligence on the part of the deceased. Learned Tribunal was required to refer panchnama as well to find out the outcome of the contributory negligence. Police records are equally important to be read (See Premlal Anand and others vs. Narendra Kumar and others - 2024 INSC 585). Without delving further into the merits of the case, I find it is a fit case to remand the matter to the learned Tribunal for fresh consideration.
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8. For the reasons stated hereinabove, the appeal is allowed in aforesaid terms. The impugned judgment and award is quashed and set aside. M.A.C.P. No.1100 of 2010 is placed before the Motor Accident Claim Tribunal, Vadodara for fresh consideration after permitting both parties to lead further evidence, if they so desire. Needless to state that learned Tribunal shall decide the claim petition afresh on its own merits without being influenced by any observations made hereinabove or in its earlier judgment. As the claim petition is more than fourteen years old, learned Tribunal shall endeavor to decide the same within six months from the date of receipt of this order. Both the parties are directed to remain present before the learned Tribunal on 12.03.2025. Registry to ensure that record and proceedings shall reach to the concerned learned Tribunal before 12.03.2025.
(J. C. DOSHI, J) GAURAV J THAKER Page 4 of 4 Uploaded by GAURAV J THAKER(HC00951) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:23:25 IST 2025