Gujarat High Court
Janu Velayudin Nair vs Sunilkumar R Tiwari Deleted on 27 August, 2021
Bench: N.V.Anjaria
C/FA/1641/2021 ORDER DATED: 27/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1641 of 2021
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JANU VELAYUDIN NAIR
Versus
SUNILKUMAR R TIWARI DELETED
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Appearance:
MR AJAY MEHTA WITH MR ANMOL A MEHTA(8390) for the Appellant(s)
No. 1,2
for the Defendant(s) No. 1
NOTICE SERVED(4) for the Defendant(s) No. 3
NOTICE UNSERVED(8) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 27/08/2021
ORAL ORDER
Looking to the compass of the issue
involved, the appeal could be taken up for final
consideration.
1.1 Heard learned advocate Mr.Ajay Mehta with
learned advocate Mr.Anmol Mehta for the appellants.
None appears for the opponents though served.
2. The appeal is directed against judgment and
award dated 10th March, 2021 passed by Motor Accident
Claims Tribunal (Aux.), Surat, whereby the claim
petition of the applicants-claimants being No.582 of
2007 came to be dismissed.
3. Noticing the basic facts, the vehicular
accident occurred on 03rd March, 2007 when deceased
Velayudin Nair was going towards Dahisar from
Kandiwali in auto rickshaw bearing Registration
No.MH-02-RA-4989. The rickshaw was driven by opponent
No.1 and opponent No.2 was the owner thereof. While
C/FA/1641/2021 ORDER DATED: 27/08/2021
passing through Western Express Highway, due to the
high speed of the rickshaw driven by opponent No.1,
auto rickshaw turned turtle. Velayudin Nair suffered
injuries and died succumbing to them. He was 65 years
of age at the time of accident and was working as
Chairman & Managing Director in Karpara Project
Engineering Company.
3.1 The Claims Tribunal proceeded to adjudicate
the claim petition wherein Rs.30.00 lakhs was claimed
by the claimants towards compensation. From the basis
of the pleadings, issues came to be framed at Exh.21.
Following issues were framed - (i) Whether the
deceased died in the accident cause by rash and
negligent driving of opponent no. 1?, (ii) Whether
the claimants are entitled for any compensation and
if any to what amount?, (iii) Whether there is any
breach of condition of Insurance Policy and who is to
pay the amount of compensation if issue no. 1 and 2
is decided in affirmative?
3.2 It appears that the claimant No.1 deposed at
Exh.22 to support the averments in the claim
petition. It is recorded that no cross-examination
was done on behalf of the opponent No.2 and on whose
behalf nobody appeared. Evidence of one Mr.Anil Kumar
Nair, working as Manager in the Karpara Project
Engineering Company was examined at Exh.42 to prove
the income of the deceased, who deposed that
Rs.25,000/- was being paid to the deceased Velayudin
every month. Nothing contrary could be shown in the
evidence.
C/FA/1641/2021 ORDER DATED: 27/08/2021
3.3 The aspect of negligence weighed with the
Tribunal in holding that the negligency of the auto
rickshaw driver could not be established. In this
regard, claimant No.1 examined himself seeking to
prove negligency on part of the driver of the said
offending vehicle. Certain documents were also
produced to prove the negligency. Other documents
such as information of accident (Exh.40), Panchnama
of Place (Exh.25) etc. were considered. What was
claimed by the claimant was that offending vehicle
auto rickshaw owned by opponent No.2 and driven by
opponent No.1 turned turtle due to rash and negligent
driving by opponent No.1, as a result of which
Velayudin died due to the injuries sustained. On
behalf of the claimant, documents at Exh.25, 26, 27
and 40 referred to above were relied on seeking to
prove that driver of the offending vehicle was
negligent, on account of which the accident took
place.
3.4 The Tribunal did noted that the parameters
to prove the negligency under the Motor Vehicles Act
are not as straight as those to prove in cases of
commission of offence under the Penal Code. It was
duly observed that strict proof of accident caused by
a particular vehicle in particular manner may not be
possible to be shown with exactitude and the
claimants are required to establish their case on the
touchstone of preponderance of probability.
4. On the aspect of negligency, the Tribunal
concluded that the claimants failed to bring on
C/FA/1641/2021 ORDER DATED: 27/08/2021
record cogent evidence to prove the negeligency on
part of the driver of the auto rickshaw when the
accident took place on 03rd March, 2007 and Velayudin
died. Thus, the Tribunal answered the issue No.1 in
negative.
4.1 Now when seen the findings recorded by the
Tribunal on the score of negeligency, it stated that
there is no collusion of auto rickshaw with other
vehicle or thing. It observed that the accident
appeared to have been occurred due to the bursting of
front tire and the auto rickshaw lost balance to turn
turtle. It was stated that mechanical structure of
the auto rickshaw is such which make auto rickshaw
prone to go turtle.
4.2 The Tribunal observed,
"The Auto Rickshaw in most probabilities had turned
turtle because of bursting of front wheel which may
be caused by many different reason beyond the
control of its driver. In the facts and
circumstance as available before the tribunal, the
accident involved in this case does not speaks to
itself so as to raise presumption that there must
have been negligence of its driver which caused the
accident. Hence, in these circumstances the
doctrine of 'res ipsa loquitur' can not be invoked
to shift the burden upon driver of the offending
vehicle."
4.3 These observations and findings are
inferences in the nature of conjecture and surmises.
The Tribunal took view that since it was three
wheeler rickshaw, there was likelihood of it turn
turtle easily and therefore, there was no negligence
on part of the driver. This, in view of this Court,
has to be considered in light of the evidence on
C/FA/1641/2021 ORDER DATED: 27/08/2021
record, to be revisited with.
4.4 The Tribunal had before it documents which
could have thrown light on the aspect of accident and
consequentially the negligency of the driver. They
were the information report of the accident (Exh.40),
panchnama of the place, accident report etc. The
findings either way which may be recorded, shall have
to be the reference of the evidence and not the mere
aspect that the auto rickshaw was prone to the
accident and turning turtle.
5. In the above view, the proper course is to
require the Motor Accident Claims Tribunal concerned
to consider the matter afresh on the aspect of
negligence by reconsidering the evidence.
6. In order to enable the Tribunal to take a
fresh decision of the issue accordingly, and render
afresh decision, the impugned judgment and award is
hereby set aside. The Tribunal shall re-decide the
matter as above within a period of eight weeks from
the date of receipt of the present order.
7. The Appeal is disposed of accordingly in the
above terms. Notice is discharged.
(N.V.ANJARIA, J)
ANUP
