Gujarat State Road Transport ... vs Lh Of Decd Ranjitsinh Babusinh ...
2021 Latest Caselaw 2363 Guj

          C/FA/1649/2020                                                    ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/FIRST APPEAL NO. 1649 of 2020
                              With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
               In R/FIRST APPEAL NO. 1649 of 2020
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           GUJARAT STATE ROAD TRANSPORT CORPORATION
                             Versus
             LH OF DECD RANJITSINH BABUSINH RAJPUT
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Appearance:
MS SEJAL K MANDAVIA(436) for the Appellant(s) No. 1
 for the Defendant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No.
1.1,1.2,1.3
NOTICE SERVED(4) for the Defendant(s) No. 2
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 CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
        and
        HONOURABLE MR. JUSTICE R.P.DHOLARIA

                               Date : 15/02/2021

                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.P.DHOLARIA)

1. The appellant­original opponent no.2 has invoked the provisions of section 173 of the Motor Vehicles Act, 1988, challenging the award dated 09.04.2019 passed by the learned Tribunal awarding amount of compensation as well as holding sole negligence on the part of the driver of the ST Corporation.

2. By way of preferring this appeal, the ST Corporation has contended that the learned Tribunal failed to consider the oral as well as documentary evidence available on record. It was contended that the Tribunal has not at all considered the evidence of the eye witness,

C/FA/1649/2020 ORDER

i.e., oral evidence of original opponent no.1, which has been recorded vide exhibit 34 and without considering his evidence, solely based upon the hear say evidence, the entire issue of negligence is recorded, which is not sustainable at law and further contended that since the Tribunal failed to consider the material evidence, the judgment could not be sustained at law and requested to remand back the matter to the learned Tribunal for fresh consideration in accordance with law.

3. This Court has heard learned advocate Ms. Neha Kayast for Ms. Sejal Mandavia, learned advocate for ST Corporation and Mr. Nishit Bhalodi, learned advocate for the original claimants.

4. We have perused the impugned judgment and award as well as we have gone through the paper book supplied by the learned advocate appearing for the parties to the proceedings. On going through the record and proceedings, in light of the discussion made in the judgment and award, while answering the point of negligence, we have noticed that the learned Tribunal totally failed to consider the evidence at Exhibit 34 led by the original opponent no.1, driver of the ST Corporation. In prima facie opinion of this Court, his evidence is only decisive evidence for recording finding as regards negligence, which is not at all done so far by the Tribunal and therefore, the findings recorded by the

C/FA/1649/2020 ORDER

Tribunal on the point of negligence, cannot be sustained at law. During the course of hearing, the learned advocates appearing for both the sides have also agreed on that aspect. Further, they have requested that if the matter is remanded back, then they may be given reasonable opportunity to submit additional documentary evidence as well as oral evidence and all the issues may be determined afresh.

5. In view of the aforesaid factual position, the judgment and award passed by the learned Tribunal could not be sustained at law and the matter is remanded back to the learned Tribunal for consideration afresh after affording opportunity of leading evidence, i.e., oral as well as documentary. The judgment and award dated 09.04.2019 passed by the Motor Accident Claims Tribunal (Aux), Gandhinagar in MACP No. 402 of 2015 is quashed and set aside with a direction to decide the same afresh after affording reasonable opportunity of leading oral as well as documentary evidence and the Tribunal after hearing both the sides, shall decide the remanded proceedings preferably within a period of six months from the date of receipt of this order. The appeal stands allowed to the aforesaid extent. The amount deposited shall be invested in the FDR and that shall be subject to the final outcome of the judgment of the learned Tribunal.

C/FA/1649/2020 ORDER

6. As the appeal is disposed of, no order is Civil Application and the same is disposed of accordingly.

(R.M.CHHAYA, J)

(R.P.DHOLARIA, J) BIJOY B. PILLAI