Gujarat High Court
Shekh Zubedaben Kalumiyan vs Kureshi Mustufa Motibhai on 13 February, 2025
NEUTRAL CITATION
C/FA/970/2013 ORDER DATED: 13/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 970 of 2013
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SHEKH ZUBEDABEN KALUMIYAN & ORS.
Versus
KURESHI MUSTUFA MOTIBHAI & ORS.
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1,2,3,4,5,6
MR KEYUR A VYAS(3247) for the Defendant(s) No. 2
MR PRAVIN P PANCHAL(2059) for the Defendant(s) No. 1
MS HINA DESAI(1023) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/02/2025
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 29.6.2010 passed by the Motor Accident Claims Tribunal, Mehsana in Motor Accident Claim Petition No.433 of 2001.
2. Brief facts of the case are that on 31.10.00, the decd.- Kalumiyan was serving as a conductor in a Truck no. GJ 2X 2222 of Pirsabmiyan; Truck driver and the decd. were going to garage for service of the Truck and at that time the decd. was coming down from the truck after tying plastic mat and at that time driver applied break suddenly and decd. fell down from the Truck and received serious injuries on waist which resulted in compression wedging fracture of vertebra with complete Page 1 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:34 IST 2025 NEUTRAL CITATION C/FA/970/2013 ORDER DATED: 13/02/2025 undefined paraplegia.
2.1 The appellants preferred the above-referred Claim Petition to recover compensation of Rs. 3,50,000/- together with cost and interest on account of the death of her husband-Kalumiya in vehicular accident which occurred on 31.10.2000. The Ld. Tribunal vide the judgment and award dt. 29.6.10, was pleased to pass an award of Rs. 18,000/- together with interest @ 7.5% per annum in favour of the appellants against the respondents from the date of claim petition till realization of the aforesaid amount with cost of claim.
3. Learned advocate Mr. TL Sheth for the appellants would submit that the learned Tribunal erred in believing that there is no nexus between the injury and death of the deceased. He would further submit that having concluded so, the learned Tribunal granted meager amount of Rs.18,000/- towards the compensation under the head of loss of estate and compensation under other heads. Taking the facts of the case, learned advocate Mr. Sheth would submit that the deceased was working as cleaner in the truck and fell from the truck while was tying plastic mat, on account of sudden application of the break, received injuries in the spinal cord. He has referred to the documentary evidence i.e. medico-legal certificate issued by the Ahmedabad Civil Hospital to see that the deceased, who received injuries on 13.10.2000 died on 20.11.2000 due to he became paraplegic as vertebrae D1 and L3 were broken. He would further submit that the doctor from the Civil Hospital was examined, yet the learned Tribunal on hyper-technical approach disbelieved that the injury sustained by the deceased has nexus Page 2 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:34 IST 2025 NEUTRAL CITATION C/FA/970/2013 ORDER DATED: 13/02/2025 undefined with his death. He would further submit that the deceased, who received injuries on 30.10.2000 could not survive for more than 20 days. Looking to this proximate date of death, it could be believed that the deceased died due to he became paraplegic. All these aspects have been totally ignored by the learned Tribunal while assessing compensation of Rs.18000/- under the head of loss of estate. Mainly on above grounds, learned advocate Mr. Sheth submits to remand the matter back to the learned Tribunal for fresh consideration.
4. On the other hand, learned advocate Ms. Hina Desai would submit that in absence of autopsy of the deceased being done by the legal heirs of the deceased, it cannot be said that the deceased died due to the accidental injuries. She would further submit that the learned Tribunal has rightly believed so to grant compensation. Upon such submission, she prays to dismiss the First Appeal.
5. Having heard learned advocates for both the sides and upon perusal of the impugned judgment and award, what could be noticed that the fact of the road accident, falling of the deceased from the truck are undisputed facts. Charge sheet is also filed against the driver of the offending vehicle at Exh.27. Even otherwise, expression "use of motor vehicle" in section 165 of the MV Act is sufficient to attract jurisdiction of the MACT. [See: Kalim Khan Versus Fimidabee, 2018 (7) SCC 687]
6. Let me refer to Exhs.28 and 32, injury certificates issued by the Civil Hospital, Ahmedabad. Both the certificates are one and the same and they are twice produced before the learned Page 3 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:34 IST 2025 NEUTRAL CITATION C/FA/970/2013 ORDER DATED: 13/02/2025 undefined Tribunal. The certificates are issued on 13.12.2000. The treating doctor has noted compression weighing fracture of vertebra D1 and L3 with complete paraplegic. The deceased was discharged from the hospital against the medical advice, which demonstrates that the deceased was admitted in the Hospital on 31.10.2000 and has taken discharge on the same date despite he has suffered complete paraplegic, perhaps, due to poor financial condition of the deceased as they could not afford expenses for medical treatment and within 20 days therefrom, the deceased died. The legal heirs of the deceased due to lack of proper advice have not done autopsy of the dead body of the deceased to establish the cause of death, but one can visualize the cause of death. The learned Tribunal believed that the claimants have failed to produce on record medical papers from Bhagyoday General Hospital, where the deceased has taken treatment. While writing such finding, the learned Tribunal failed to notice Exh.38, whereby the Superintendent of Bhagyoday General Hospital wrote a letter to the learned Tribunal that no records of the case of the deceased are available with them. In such circumstances, it is obvious that no records for treatment taken at Bhagyoday General Hospital is produced, but it cannot be taken up adverse to the case of the deceased.
7. This Hon'ble Court in case of Gujarat State Road Transport Corporation Limited Versus Mariambai A.Adamji, 2003 (1) GLR 574, in the facts of the case in absence of pm report, believed that the nexus between the injury and death of tenderness with swelling on the left shoulder region and tenderness on the left- hip region. This evidence is sufficient to have direct connection from the date of the accident till the date the deceased. The case Page 4 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:34 IST 2025 NEUTRAL CITATION C/FA/970/2013 ORDER DATED: 13/02/2025 undefined on hand is much graver than the aforestated case. In nutshell, according to this Court, the findings of the learned Tribunal is alive to the insensitive approach. Granting meager amount of compensation of Rs.18,000/- for death of a person leaving behind six dependents; one of them is one year old daughter, is mockery to the pain of legal heirs of the deceased. The MACT is duty bound to take sensitive approach. In the judgment of the Hon'ble Apex Court in case of N.K.V.Bros.Private Limited Versus M.Karumai Ammal reported in 1980 (3) SCC 457. Para 3 is important, which reads as under:-
"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the Courts, as has been observed by us earlier in other case, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour". Indeed, the State must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Art. 41 of the Constitution lays the jurisprudential foundation for state relief against Page 5 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:34 IST 2025 NEUTRAL CITATION C/FA/970/2013 ORDER DATED: 13/02/2025 undefined accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Court should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard."
8. For the approach of the learned Tribunal, a lot many can be written, but this Court restrain from passing any other observations. At the end of above discussion, what could be noticed that there is sufficient evidence on record before the learned Tribunal, which linked between the injury and death of the deceased. Thus, according to this Court, the learned Tribunal committed serious error in passing the impugned judgment and award and therefore, the matter is required to be remanded back to the learned Tribunal for fresh consideration in view of judgment of the Hon'ble Apex Court in cases of National Insurance Company Limited Vs. Pranay Sethi reported in 2017 (16) SCC 680, Magma General Insurance Company Limited Versus Nanu Ram Alias Chuhru Ram, 2018 (18) SCC 130 and United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC 780.
9. In view of above, present First Appeal is allowed and impugned judgment and award is quashed and set aside. MACP No. 433 of 2001 is restored to its original proceedings.
9.1 The learned Tribunal is directed to issue notice to the claimant as well as to the respondents and to proceed further to Page 6 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:34 IST 2025 NEUTRAL CITATION C/FA/970/2013 ORDER DATED: 13/02/2025 undefined decide the petition on its own merits without being influenced by its earlier order, as early as possible, preferably within three months from the date of receipt of this order.
9.2 Both the parties are at liberty to lead fresh evidence, if they so desire.
9.3 Parties shall remain present before the learned Tribunal on 13.3.2025.
9.4 R & P, if any, to be sent back to the concerned Court immediately preferably on or before 13.3.2025.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 7 of 7 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 22:58:34 IST 2025