Ramtuji Jenaji Thakore vs Amratbhai Harjibhai Desai
2021 Latest Caselaw 4596 Guj

          C/FA/2472/2010                                         JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2472 of 2010
                                    With
                       R/CROSS OBJECTION NO. 8 of 2011
                                     In
                         FIRST APPEAL NO. 2472 of 2010

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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                    RAMTUJI JENAJI THAKORE & 2 other(s)
                                 Versus
                   AMRATBHAI HARJIBHAI DESAI & 2 other(s)
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Appearance:
MR AMIT C NANAVATI(1384) for the Appellant(s) No. 1,2,3
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
MR RP MODI(6133) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                                 Date : 23/03/2021

                                 ORAL JUDGMENT

1. Heard Mr. Amit Nanavati, learned advocate for the appellants, Mr. R.P. Modi, learned advocate for respondent no.2 and Mr. Palak

C/FA/2472/2010 JUDGMENT

Thakkar, learned advocate for respondent no.3- insurance Company in First Appeal and the Cross Objections filed by the respondent no.2- owner.

2. Feeling aggrieved and dissatisfied by the judgment and award dated 16.3.2010 passed by the Motor Accident Claims Tribunal (Main), Sabarkantha at Himmatnagar in MACP No.1067/04, the appellants ­ original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

3. Facts as can be culled out from the record of the appeal are that the accident occurred on 30.5.2004. It is the case of the original claimants that the deceased Antiben was doing labour work of loading and unloading milk canes from the rickshaw bearing registration no. GJ­18 T­3966 from Mahundra Patia to Gandhinagar. It is the case of the original claimants that Antiben was travelling in the said rickshaw and was on her job while her husband was travelling in the said rickshaw as he was to go for some social work. Record further indicates that the rickshaw was being driven in a rash and negligent manner and because of which, the rickshaw run over the divider and turned turtle. The deceased-

       C/FA/2472/2010                                                    JUDGMENT



     Antiben            sustained                fatal            injuries               and

ultimately succumbed to the same.

4. The present claim petition was filed under Section 166 of the Act and claimed compensation of Rs.4,00,000/­. An FIR was lodged with the jurisdictional Police Station at Exh.38. It is the case of the original claimants that the deceased was working as a labourer for loading and unloading of milk canes with respondent no.2 who is the owner of the rickshaw involved in the accident. It was the case of the original claimants that she was earning Rs.3,000/­ per month and was aged 35 years on the date of the accident. The other documentary evidence in form of Panchnama Exh.39, inquest Panchnama Exh.40, charge­sheet Exh.41, postmortem report Exh.42, insurance policy Exh.44 were relied upon by the original claimants. Over and above the same, one of the claimant was examined at Exh.54. The Tribunal, after considering the evidence on record, determined the income of the deceased at Rs.1,500/­ per month and applying multiplier of 17 and after deducting one­third towards personal expenses awarded a sum of Rs.2,04,000/­ towards future loss of dependency and further awarded a sum of Rs.23,000/­ under the different conventional heads and thus, awarded total compensation of

C/FA/2472/2010 JUDGMENT

Rs.2,27,000/­ with 6% interest per annum from the date of filing of the claim petition till its realization as far as liability is concerned. The Tribunal heavily relied upon the FIR Exh.38 which was lodged by Ramtuji Thakore - husband of the Antiben who was the eye­witness of the accident. The Tribunal, on the basis of the same, also concluded that Antiben was travelling in the said rickshaw as co­passenger while partly allowing the claim petition as aforesaid. Being aggrieved by the same, the original claimants have preferred this appeal for enhancement of amount and as the insurance Company has been exonerated, the owner of the rickshaw has filed Cross Objections.

5. Heard learned advocates appearing for the respective parties and have also perused the original record and proceedings as well as the paper book.

6. Upon re­appreciating the evidence on record, it deserves to be noted that the version in FIR Exh.38 was not the only evidence on record. The respondent no.2 - owner of the rickshaw has filed his written statement and has, inter­alia, contended in Paragraph 2 that the deceased Antiben was working with him as a labourer for loading and unloading of milk

C/FA/2472/2010 JUDGMENT

canes. Upon re­appreciating the evidence on record of Ramtuji Thakore, it appears that he has categorically stated that the deceased Antiben was working as a labourer with Raymalbhai Rabari who was the owner of the rickshaw involved in the accident. He has categorically also narrated in his deposition the actual work done by deceased Antiben of loading and unloading from Village Mahundra Patia to Gandhinagar. It is also found from his cross­examination that he has denied the suggestion to the contrary. Evidence on record as well as the contentions raised in the written statement do not find place in the impugned judgment and award in this appeal. In light of the aforesaid, in opinion of this Court, the Tribunal has committed an error in just relying upon Exh.38 FIR only. It appears from the judgment that the Tribunal was conscious of the fact that other evidence is on record as can be seen from the observations made in Paragraph 12 that the Tribunal was conscious of the fact that license is at Mark 53/1. Non­consideration of such evidence is an error apparent.

7. Mr. Palak Thakkar, learned advocate for the insurance Company has candidly submitted that the Tribunal has rightly decided the issue of liability.

C/FA/2472/2010 JUDGMENT

8. Mr. Modi, learned advocate for the owner has contended that the FIR is a version before the police, whereas in the deposition, the husband of the deceased has clearly deposed that the deceased Antiben was working with respondent no.2 - owner of the rickshaw as a labourer, in opinion of this Court, the Tribunal has failed to consider such evidence which was on record.

9. In peculiar facts and circumstances of the case therefore, the impugned judgment and award deserves to be quashed and set aside and the proceedings of MACP no.1067/04 deserves to be restored back to the file of MACT, Sabarkantha at Himmatnagar.

10. Mr. Palak Thakkar, learned advocate for the insurance Company candidly does not invite any further reasons for remanding the matter. Mr. Amit Nanavati, learned advocate for the appellants - original claimants and Mr. R.P. Modi, learned advocate for the respondent no.2-owner also do not invite any further reasons for the view taken by this Court.

11. It is also made clear that as far as the quantum and liability is concerned, it would be open for the appellants - original claimants to raise all issues before the

C/FA/2472/2010 JUDGMENT

Tribunal and the Tribunal shall decide the same after giving an opportunity of being heard to all the parties.

12. Resultantly, the impugned judgment and award is hereby quashed and set aside and the proceedings of MACP no.1067/04 are restored back to the file of the Tribunal. The Tribunal shall hear all the parties from the stage of arguments and pass a fresh order after considering the submissions made by it and on the basis of the evidences which are already recorded. As the accident is of the year 2004, the Tribunal shall endeavor to rehear the parties and pass a fresh judgment and award as expeditiously as possible, but not later than 31.10.2021. The Tribunal shall decide the issue without in any manner being influenced by any of the observations made in this judgment and order.

13. The appeal as well as the Cross Objections are disposed of. However, there shall be no order as to costs. Registry is directed to send a copy of this judgment and order forthwith to the Tribunal along with the original record and proceedings.

(R.M.CHHAYA, J) MRP