Gujarat High Court
Shambhubhai Chimanlal Prajapati Since ... vs Jashubhai Budhabhai Parmar on 18 February, 2025
NEUTRAL CITATION
C/FA/3122/2009 ORDER DATED: 18/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3122 of 2009
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SHAMBHUBHAI CHIMANLAL PRAJAPATI SINCE DECD. THROUGH HEIRS
& ORS.
Versus
JASHUBHAI BUDHABHAI PARMAR & ORS.
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Appearance:
MR MR PRAJAPATI(1532) for the Appellant(s) No. 1,1.1,1.2,1.3
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4
MR VIBHUTI NANAVATI(513) 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 : 18/02/2025
ORAL ORDER
1. Heard learned advocate Mr. M. R. Prajapati for the appellants, Ms. Masumi Nanavati for the respondent No.2 and Mr. Palak H. Thakkar for the respondent No.4. Though served, none appeared for respondent No.3. Rule could not be served upon respondent No.1.
2. Present First Appeal is filed by the appellant - original claimant challenging the disposal of the claim petition by the learned Motor Accident Claims Tribunal (Main), Gandhinagar wherein the claimant has been found negligent 100% in the occurrence of accident.
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3. Learned advocate for the appellant has submitted that though learned Tribunal has erred in not considering the policy in question, it is submitted that as per the policy Mark 23/4, the risk of driver is covered. It is submitted that though the claimant has been found negligent, as per the decision of the Full Bench of this Court in the case of Valiben Laxmanbhai Thakore (Koli) Wd/o Late Laxmanbhai Ramsingbhai Thakore v. Kandla Dock Labour Board, the Tribunal ought to have awarded compensation in favour of the claimant. It is further submitted that though the ground of challenge of covering or non-covering the risk is not raised before the Learned Tribunal as well as before this Court, he may be permitted to raise this legal contention. It is further submitted that so far as the negligence is concerned, the appellant/claimant is accepting the findings of 100% negligence of the claimant in the occurrence of accident. However, on the grounds of quantum, the appeal may be remanded back to the concerned learned Tribunal. Reliance is also placed by the learned advocate for the claimant in the decision of the Coordinate Bench of this Court in the case of Valji Aatu Maheshwari Vs. Ibrahim Ramju Kumbhar & Ors. reported in First Appeal No.478 of 2018 wherein the Coordinate Bench has also considered the decision of Valiben (supra) and has remanded back the matter. Page 2 of 5 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Feb 27 2025 Downloaded on : Fri Feb 28 23:32:23 IST 2025
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4. Per contra, learned advocate Ms. Masumi Nanavati submits that if the matter is remanded back, the Insurance Company may be permitted to lead the evidence and submitted that the judgment and award passed by learned Tribunal is just and proper.
5. Learned advocate Mr. Palak H. Thakkar for respondent No.4 - Insurance Company of the Truck submitted that the risk of the driver is not covered under the policy and therefore, the findings arrived at by the learned Tribunal is correct and may not be interfered with.
6. Considering the submissions canvassed by learned advocates for the parties and on perusal of the policy of the Truck bearing No. GQD-4854, it indicates that premium covering the risk of the driver has been accepted by the Insurance Company and therefore the risk of the driver is covered under the policy of insurance. When this Court is satisfied with the evidence that the risk of the driver is covered under the policy, the learned Tribunal ought to have calculated the compensation on the basis of evidence available on record. Considering the decision of Valiben (supra) in para 15, the same issue was cropped up before the coordinate bench of this Court in the case of Valji Aatu Maheshwari (supra) wherein the Coordinate Bench has also taken into Page 3 of 5 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Feb 27 2025 Downloaded on : Fri Feb 28 23:32:23 IST 2025 NEUTRAL CITATION C/FA/3122/2009 ORDER DATED: 18/02/2025 undefined consideration the decision of Valiben and thereafter remanded the proceedings to the Tribunal to consider the issue of awarding compensation in respect of the accident.
7. In view of the aforesaid settled position of law, I am of the view that it would be in the interest of justice if the matter is remanded back to the learned Tribunal to decide the quantum on the basis of evidence which is already available before the learned Tribunal. As learned advocate for the appellant has fairly admitted that the claimant - appellant has admitted the negligence to the extent of 100% in the occurrence of accident. Learned Tribunal is not required to go into the question of negligence while deciding the negligence on either of the parties. It is further clarified that the learned Tribunal shall decide the issue of quantum without being influenced by the observations made herein after and shall decide independently relying upon the evidence already available on record. So far the question of awarding interest for the period of appeal is concerned, it is left open to the learned Tribunal to decide on the basis of submissions that may be urged by respective parties before the Learned Tribunal.
8. It is further submitted that after the pronouncement of the judgment and award, the original claimant Shambhubhai Page 4 of 5 Uploaded by MAYA S. CHAUHAN(HC01402) on Thu Feb 27 2025 Downloaded on : Fri Feb 28 23:32:23 IST 2025 NEUTRAL CITATION C/FA/3122/2009 ORDER DATED: 18/02/2025 undefined Chimanlal Prajapati has passed away and the heirs of the deceased has preferred the present First Appeal.
9. While deciding the issue of quantum, both the parties are permitted to raise respective contentions. The First Appeal is allowed accordingly.
10. The exercise of deciding the question of quantum shall be decided preferably within a period of three months from the date of the receipt of the order. Both the parties are directed to cooperate the learned Tribunal without asking for unnecessary adjournments.
11. Record and Proceedings to be sent back to the concerned Tribunal.
12. The finding of negligence is hereby confirmed. First Appeal is allowed and disposed of in view of the above observations.
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