Gujarat High Court
Ismail Dhula Agaria vs Not Known on 7 December, 2021
Bench: Hemant M. Prachchhak
C/SCA/11409/2021 ORDER DATED: 07/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11409 of 2021
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ISMAIL DHULA AGARIA
Versus
NOT KNOWN
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Appearance:
MS SHUBHA B TRIPATHI(5597) for the Petitioner(s) No. 2,3
NISHIT A BHALODI(9597) for the Petitioner(s) No. 1
MR RATHIN P RAVAL(5013) for the Respondent(s) No. 3
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 07/12/2021
ORAL ORDER
1. The present petition is filed by the petitioners under
Articles 226 and 227 of the Constitution of India challenging the
order dated 08.04.2021 passed by the Motor Accident Claims
Tribunal, Kachchh at Bhuj (hereinafter referred to as "the Act")
below application Exhibit 77 in M.A.C.P. No.417 of 2015.
2. The brief facts of the present case are that original
claimants had filed said claim petition claiming compensation on
account of the death of Aman Ismail Agaria in vehicular accident.
The Tribunal has passed the judgment and award on 30.11.2019
and the same came to be challenged by the Insurance Company
by filing First Appeal No.2161 of 2020 before this Court which
was admitted by the Division Bench of this Hon'ble Court on
28.10.2020. The claimants have preferred Cross Objection No.50
of 2021 which also came to be admitted by the Division Bench of
C/SCA/11409/2021 ORDER DATED: 07/12/2021
this Hon'ble Court on 28.06.2021. It came to be noticed of the
claimants at the time of disbursement of the compensation
amount that due to the typography error in the operative part of
the judgment and award, total compensation is bifurcated in the
ratio of 40% to claimants No.1 and 2 each and 10% to claimant
No.3. Therefore, only 90% of the total compensation was
bifurcated among the claimants. Therefore, the claimants moved
an application for correction in operative part of the judgment
and award which seems to be typographical error while
bifurcating the total compensation amount among the claimants.
The application was rejected by the Tribunal without any
clarification of balance 10% compensation. The present petition
is preferred for quashing and setting aside the order dated
08.04.2021 passed by the Tribunal below application Exhibit 77.
3. Heard Mr.Nishit Bhalodi, learned counsel appearing for the
petitioners and Mr.Rathin Raval, learned counsel appearing for
the respondent no.3.
4. Mr.Nishit Bhalodi, learned counsel appearing for the
petitioners has submitted that the Tribunal has erred in rejecting
the application of the claimants at Exhibit 77 and ought to have
considered that the total amount is required to be bifurcated as
100% among the claimants. He has submitted that the Tribunal
has committed an error by not paying 10% amount of
compensation to any of the claimants. He has submitted that the
Insurance Company has made an endorsement of "No Objection"
on the application at Exhibit 77 before the Tribunal. He has
prayed to quash and set aside the order dated 08.04.2021
passed below application at Exhibit 77 and bifurcate the total
compensation among the claimants in ratio of 40% to claimants
C/SCA/11409/2021 ORDER DATED: 07/12/2021
no.1 and 2 each and 20% to claimant no.3 by making correction
in para-5 of the operative part of the judgment and award.
5. Mr.Rathin Raval, learned counsel appearing for the
respondent no.3 has opposed in allowing the petition and has
submitted that the Court may pass appropriate orders.
6. Having considered the submissions canvassed by the
learned counsel appearing on behalf of the respective parties
and considered the materials placed on record. It appears that
the main claim petition filed by the present petitioners came to
be allowed by the Tribunal and awarded compensation on
account of the death of the son of petitioners no.1 and 2 and
brother of petitioner no.3. While passing the impugned award, at
the time of apportionment, the Tribunal in paragraph no.5 of the
operative operation has apportioned the amount of 40% each in
favour of claimants no.1 and 2, whereas 10% in favour of
claimant no.3 and remaining 10% of the awarded amount has
not been mentioned by the Tribunal. Therefore, the petitioners
have moved an application below Exhibit 77 before the Tribunal
to rectify and/or modify the impugned judgment and award more
particularly in paragraph no.5 of the operative order, though the
learned advocate for the Insurance Company has given 'no
objection' in the application. It is evident from the record that the
Tribunal has rejected the said application without application of
mind. Therefore, considering the aforesaid facts and averments
made in the petition, the petition requires to be allowed.
C/SCA/11409/2021 ORDER DATED: 07/12/2021
7. In view of the above, the present petition is allowed. The
order dated 08.04.2021 passed by the Motor Accident Claims
Tribunal, Kachchh at Bhuj below application Exhibit 77 in
M.A.C.P. No.417 of 2015 is hereby quashed and set aside. The
Tribunal is directed to apportion the awarded amount i.e. 40%
each to claimants no. 1 and 2 and 20% to claimant no.3
accordingly. Registry is directed to communicate the copy of this
order to the concerned Tribunal.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
