Gujarat High Court
Foram Wd/O Vijay Sajjansinh Barot vs Ajaybhai Sajjansinh Barot on 14 December, 2021
Bench: Hemant M. Prachchhak
C/SCA/21912/2019 ORDER DATED: 14/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21912 of 2019
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FORAM WD/O VIJAY SAJJANSINH BAROT
Versus
AJAYBHAI SAJJANSINH BAROT
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Appearance:
MR JINESH H KAPADIA(5601) for the Petitioner(s) No. 1,2,3
MS KIRTI S PATHAK(9966) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 14/12/2021
ORAL ORDER
1. The present petition is filed by the original claimant
under Articles 226 & 227 of the Constitution of India
challenging the impugned judgment and order dated
18.02.2019 passed by the Motor Accident Claims Tribunal,
Mehsana at Vishnagar below Exh. 47 in MACP No. 901 of 2012
(old MACP No. 832 of 2009).
2. The brief facts of the present case are as under.
2.1 On 10.10.2007 deceased Vijay Sajjansinh Barot was
travelling on Motor Cycle of respondent No.1 bearing
registration No. GJ-2-AC-2441 from Patan to Mahesana. At that
time near Chanasma road near Lavana Village, wheel of
aforesaid motor cycle has been jammed and therefore
deceased has fallen to the road and have sustained grave
injuries on head and on body and has been hospitalized and
ultimately succumb to injuries and died on 31.01.2008.
C/SCA/21912/2019 ORDER DATED: 14/12/2021
3. Learned advocate for the petitioner has submitted that
the Tribunal has committed an error while passing the
impugned judgment and order without considering the facts. It
is submitted that looking to the insurance policy, the owner
has paid an additional amount to cover the risk of owner and
driver and the Tribunal without considering the evidence on
record and without considering the document has passed the
impugned order, whereby the Tribunal has committed a gross
error of law. It is also submitted that without leading to the
evidence and without proving the facts about the negligency
and fault on the part of the deceased, the Tribunal can not
pass the impugned order, which is lead to the finality of the
Motor Accident Claim Petition. It is submitted that the
impugned judgment and order passed by the Tribunal is
required to be quashed and set aside.
4. Learned advocate for the petitioner has also strongly
relied upon the judgment of the High Court of Judicature at
Bombay in the case of Baban S/o Kundlik Karale Vs,
Mahendra S/o Yelnath Karale and another reported in
2008 (3) Mh.L.J 222. In the case of Baban (supra), the High
Court of Bombay has observed in Para Nos. 8, 9 & 10 as under:
8. The purport of the provisions of Order I Rule 10, is clear
that the Court has power to order that the name of any party
improperly joined, whether as plaintiff or defendant, be struck out
and the name of any person who ought to have been joined,
whether as plaintiff or defendant, may be added.
9. In the present case, the defendant No.2 has not filed any
C/SCA/21912/2019 ORDER DATED: 14/12/2021
application for seeking directions to delete himself from the suit,
but the application is made by defendant No.1 stating therein that
the defendant No.2 is not at all interested in the suit property.
10. The trial Court allowed the application of the defendant on
the premise that the defendant No.1 was not in possession of the
property situated in Block No.260. Considering the pleadings and
the stand adopted by the defendants, I am of the view that the
trial Court committed an error in allowing the application of
defendant No.1. The plaintiff's allegations are against both the
defendants from whom the plaintiff seeks possession. The issue
as to whether the defendant No.2 encroached upon the area of
the land owned and possessed by the plaintiff, whether the
defendant No.2 resides with the defendant No.1 and other
incidental issues could be decided only after the evidence is led
by the parties. It would be premature, in the facts of the case, to
order deletion of the defendant No.2, more particularly in view of
the fact that the plaintiff wanted defendant No.2 as party to the
suit."
5. I have heard learned advocate for the petitioner. Though
notice served upon the respondents, none appears on behalf
of the respondents. I have also considered the facts of the
present case and also considered the impugned judgment and
order passed by the Tribunal. The impugned order is required
to be quashed and set aside.
6. The present petition is allowed and the impugned
judgment and order dated 18.02.2019 passed by the Motor
Accident Claims Tribunal, Mehsana at Vishnagar below Exh. 47
in MACP No. 901 of 2012 (old MACP No. 832 of 2009) is hereby
C/SCA/21912/2019 ORDER DATED: 14/12/2021
quashed and set aside. No order as to costs.
(HEMANT M. PRACHCHHAK,J)
SALIM/
