Gujarat High Court
Shakinaben Abbasbhai Vejlani vs Pravinbhai Chakurbhai Hadiya on 25 November, 2021
Bench: R.M.Chhaya
C/FA/3536/2019 JUDGMENT DATED: 25/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3536 of 2019
With
R/FIRST APPEAL NO. 3538 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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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SHAKINABEN ABBASBHAI VEJLANI
Versus
PRAVINBHAI CHAKURBHAI HADIYA
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2
for the Defendant(s) No. 2
MR RAXIT J DHOLAKIA(3709) for the Defendant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 4
NOTICE SERVED(4) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 25/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
C/FA/3536/2019 JUDGMENT DATED: 25/11/2021
1. Being aggrieved and dissatisfied by the impugned
judgment and award dated 30.1.2019 passed by the Motor
Accident Claims Tribunal (Auxi.), Bhavnagar at Mahuva in
MACP No.1014 of 2015 and MACP No.1015 of 2015, these
appeals are preferred under Section 173 of the Motor Vehicles
Act, 1988 ("the Act" for short).
2. Both these appeals are arising out of the same accident
and, therefore they are heard and decided together. With the
consent of the parties, the same is heard for final disposal at
this stage. The First Appeal No.3536 of 2019 arises out of
MACP No.1014 of 2015 filed by legal heirs of deceased Shri
Abbasbhai Janabhai, whereas First Appeal No.3538 of 2019
arises out of MACP No. 1015 of 2015 filed by legal heirs of
deceased Shri Aliasgar Abbasbhai.
3. In First Appeal No. 3536 of 2019, the appellants are
original claimants in MACP No. 1014 of 2015. Respondent
No.1 is the owner of a tractor bearing registration No. GJ-4-T-
4149, Respondent No.2 was deleted; Respondent No.3 is owner
of a car bearing registration No. GJ-4-AP-4352 and Respondent
No.4 is National Insurance Co. Ltd.
In First Appeal No. 3538 of 2019, the appellants are
original claimants in MACP No. 1015 of 2015. Respondent No.
1 is the owner of tractor bearing registration no GJ-4-T-4149,
Respondent No.2 was deleted, Respondent No. 3 is owner of the
Car and Respondent No.4 is Insurance Company.
4. The following facts emerge from the records of these
appeals:
C/FA/3536/2019 JUDGMENT DATED: 25/11/2021
4.1. On 25.12.2014 at 7:00 p.m., deceased Shri Abbas
Janabhai and deceased Shri Aliasgar Abbasbhai were coming in
a car bearing registration No.GJ-4-AP-4352 towards Mahuva.
At that time Opponent - driver had left his tractor -trailer No.
GJ-4-T-4149 on the road. The tractor-trailer was parked on the
road without taking any care and without any sign and
indicator even at night time. It is the case of the Appellants
that on account of the said negligent act on part of the
Opponent- driver of tractor, the car dashed with the tractor
trailer from back side. On account of the said accident, Shri
Abbas Janabhai and Shri Aliasgar Abbasbhai sustained injuries
and succumbed to the same.
4.2. The legal heirs of Shri Abbas Janabhai filed a claim
petition being MACP No.1014 of 2015 seeking compensation of
Rs.60,00,000/- and the legal heirs of Aliasgar Abbasbhai filed
claim petition being MACP No.1015 of 2015 seeking
compensation of Rs.40,00,000/- under Section 166 of the Act.
The Tribunal after hearing the parties and considering the oral
and documentary evidence passed a common judgment and
award dated 30.1.2019. The Tribunal in both the claim
petitions took following oral as well as documentary evidences
into consideration.
In MACP NO.1014/2015
Oral Evidence
Sr.No. Particular Exh.
1. Affidavit of Claimant No.1 Sakinaben Abbasbhai 31
Vejlani
C/FA/3536/2019 JUDGMENT DATED: 25/11/2021
Documentary Evidence
Sr.No. Particular Exh.
8. Copy of I.T. returns of deceased Abbasbhai 44
In MACP No.1015 of 2015
Oral Evidence
Sr.No. Particular Exh.
1. Affidavit of Claimant No.1 Sakinaben Abbasbhai 29
Vejlani
Documentary Evidence
Sr.No. Particular Exh.
C/FA/3536/2019 JUDGMENT DATED: 25/11/2021
5. In the judgment and award dated 30.1.2019 for both the
claim petitions, for negligence, the Tribunal held that from the
evidence it is clear that the opponent No.1 had left his tractor
trailer on the road at evening/night hours due to puncture
without any proper sign, signal or reflectors. Such negligent
act of driver of tractor trailer resulted into accident and
therefore, the driver of tractor trailer was sole negligent for
the said accident. The Tribunal also observed that nowhere in
the claim petitions, claimant came with any specific case that
there was negligence on part of the driver of the car i.e.
deceased Aliasgar Abbasbhai. In complaint also it was not
mentioned that any kind of negligence was there on part of
driver of car (deceased Aliasgar Abbasbhai) and therefore,
complaint is not sufficient to establish any kind of negligence
on the part of driver of the car i.e. deceased Aliasgar
Abbasbhai.Thus, with aforesaid observations and findings, the
Tribunal held (in both the claim petitions) that only the
driver of the tractor trailer was negligent for occurrence of the
accident in question.
6. For the claim, the Tribunal awarded total compensation
as under:-
For MACP No.1014 of 2015
Sr.No. Particulars Amount
1. For Future loss of incomes Rs.20,16,663/-
2. For Funeral Expenses Rs. 15,000/-
3. Towards the consortium Rs. 40,000/-
4. For loss of Estate Rs. 15,000/-
Total Rs.20,86,663/-
C/FA/3536/2019 JUDGMENT DATED: 25/11/2021
For MACP No.1015 of 2015
Sr.No. Particulars Amount
1. For Future loss of incomes Rs.32,36,800/-
2. For Funeral Expenses Rs. 15,000/-
3. Towards the consortium Rs. 40,000/-
4. For loss of Estate Rs. 15,000/-
Total Rs.33,06,800/-
The present appeals are filed challenging the common
award dated 30.01.2019.
7. We have heard Mr. Hiren Modi, learned advocate for the
appellants -Original Claimants, Mr. Sunil Parikh, learned
advocate for Respondent No.4 - Insurance Company and Mr.
Rakshit Dholakia for Respondent No.1 -Owner of tractor trailer.
Though served, none appears for respondent No.3 (owner of a
car). As the liability has not been denied, the presence of
respondent NO.3 is not necessary for adjudication of these
appeals.
8. For First Appeal No 3538 of 2019, Mr. Hiren Modi,
learned advocate for the appellants submitted that deceased
Abbas Janabhai and deceased Shri Aliasgar Abbasbhai died in
a car accident which occurred on account of the negligent act
on the part of driver of tractor trailer as also the negligence
on part of deseased Aliasgar Abbasbhai (driver of a car). He
further submitted that though in the pleading of the claim
C/FA/3536/2019 JUDGMENT DATED: 25/11/2021
petition, the tractor was pleaded as negligent, however, in the
deposition by the widow of the deceased it was specifically
deposed that both the vehicles are liable for the accident.
Therefore, it is the case of composite negligence which the
Tribunal has not considered despite pleaded for and, therefore,
he can recover the amount from all tort -faros including the
insurer of the car. He thus contended that the Tribunal
committed a serious error in not considering the deposition of
the widow of deceased and thereby exonerating respondent
No.3 and respondent No.4 that is owner of car and insurer of
the said car.
9. In support of his above submissions, he relied upon
Exh.39 i.e. deposition of widow Shakinaben who stated that
due to excessive speed drivers eyes dazzled and collided with
stationary tractor. Thus, from the deposition of Shakinaben
both the driver of tractor trailer and driver of car are equally
negligent.
10. For First Appeal No.3538 of 2019 of 2015, Mr. Hiren
Modi, learned advocate submitted that the Tribunal has
committed error in holding the driver of tractor trailer as sole
negligent. He further submitted that deceased Mr. Aliasgar
Abbasbhai was paid driver who was driving the car at the time
of accident. He thus contended that even if driver of the car
is negligent, the Insurance Company of the car is required to
C/FA/3536/2019 JUDGMENT DATED: 25/11/2021
pay the compensation as awarded. He further contended that
the contention of the Insurance Company that it is the policy
"of act" only and it will not cover risk, is contrary to the
record as the claimant had paid extra premium and therefore,
it is the policy covering risk. He, thus, contended that this
aspect has also not been considered by the Tribunal and there
is serious error in the judgment and award of the Tribunal
dated 30.01.2019.
11. In relation to quantum learned advocate for the claimant
in both the appeals submitted that the income-tax returns of
the deceased at Exh.44 have not been considered by the
Tribunal in a correct perspective. He therefore, on the above
afore-stated grounds prayed to quash and set aside the
impugned judgment and award dated 30.1.2019.
12. Per contra, Mr. Sunil Parikh, learned advocate appearing
for the Insurance Company has supported the judgment and
award passed by the Tribunal and submitted that the Tribunal
has correctly appreciated the evidence on record. Even the
negligence aspect has been correctly appreciated based on the
evidence as also the quantum has also been correctly awarded.
He therefore prayed to dismiss the appeals being meritless.
13. We have revisited the oral as well as documentary
evidence available on record. We have also perused the record
C/FA/3536/2019 JUDGMENT DATED: 25/11/2021
and proceedings. Upon re-appreciation of evidence, we are of
the opinion that though in the pleadings in claim petition, the
tractor trailer was pleaded as negligent, in the deposition by
widow, it was clearly stated that both the drivers are
responsible for the accident. This factual aspect has not been
dealt with by the tribunal therefore in our opinion that the
same is required to be re-appreciated particularly when there
is an evidence of deposition of widow Shakinaben. We are
also of the opinion that even the contention of the claimant in
relation to the payment of extra premium and policy covering
risk is also not considered by the Tribunal.
14. In view of the aforesaid reasons we hereby quash and
set-aside the impugned common judgment and award dated
30.01.2019 in MACP No. 1014 of 2015 and MACP No. 1015
of 2015.
15. Thus, the impugned judgment and award passed dated
30.1.2019 passed by the Motor Accident Claims Tribunal
(Auxi.), Bhavnagar at Mahuva in MACP No.1014 of 2015 and
MACP No.1015 of 2015 is remanded back for its rehearing
before the Tribunal and the same stands restored back to the
file of the Tribunal. The Tribunal shall rehear the parties from
stage of evidence and after hearing the parties and
appreciating the evidence on record, shall decide the remanded
proceedings de novo on all aspects and shall pass fresh award
C/FA/3536/2019 JUDGMENT DATED: 25/11/2021
without in any manner influenced by earlier award as well as
any observations made in this order. The parties are at liberty
to take all contentions available to them. Such exercise shall
be undertaken by the Tribunal as expeditiously as possible,
preferably before 28.2.2022. We however, make it clear that
we have not gone into the merits of the matter. Both the
parties are at liberty to rely upon the evidence on record
afresh. No evidence other than the evidence which are
produced on record shall be permitted before the Tribunal.
16. The appeals stand allowed to the aforesaid extent. Record
and proceedings be transmitted back to the Tribunal forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
