Gujarat High Court
Paul Hirabhai Vaghela vs Dipak Mukeshbhai Panchal on 9 February, 2022
Bench: Hemant M. Prachchhak
C/FA/240/2021 JUDGMENT DATED: 09/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 240 of 2021
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
NO. 1 of 2021
In
R/FIRST APPEAL NO. 240 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================================
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 ?
==========================================================
PAUL HIRABHAI VAGHELA
Versus
DIPAK MUKESHBHAI PANCHAL
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3,4,5
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 09/02/2022
ORAL JUDGMENT
C/FA/240/2021 JUDGMENT DATED: 09/02/2022
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the
judgment and award dated 29.10.2020 passed by
the Motor Accident Claims Tribunal (Aux),
Bharuch in MACP no.437 of 2014, the
appellants-original claimants have preferred
this appeal under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as
"the Act").
2. Following facts emerge from the record of the
appeal:-
2.1 That the accident took place on 23.11.2014. It
is the case of the original claimants that the
deceased - Prakashbhai Vaghela was traveling
to Ahmedabad Airport from Vadodara at about
02.35 a.m. and when he reached Narol Toll
Plaza, the vehicle in which he was traveling
tried to overtake foregoing truck and the
vehicle dashed with the said truck. It is the
case of the original claimants that the impact
of the accident was so powerful that the
deceased who was sitting at the back seat was
thrown from the back side to the front side
and hit with the dash board and he sustained
grievous injuries on the head and ultimately,
succumbed to the same at the Civil Hospital,
Ahmedabad. An FIR was lodged with the
C/FA/240/2021 JUDGMENT DATED: 09/02/2022
jurisdictional Police Station bearing CR no.
I-132/2014 and the present claim petition was
filed under Section 166 of the Act for
compensation of Rs.6,31,35,000/-.
2.2 One of the claimant - Paul Hirabhai Vaghela
was examined at Exh.75, Sneha Prakashbhai
Vaghela was examined at Exh.47 and the Sales
Manager of Endress + Hauser (India) Pvt. Ltd.-
Jayeshkumar Maganbhai Patel was examined at
Exh.36. The original claimants also relied
upon the documentary evidences, such as, FIR
Exh.68, inquest Panchnama Exh.69, Panchnama of
the scene of accident Exh.70, Panchnama of the
vehicle involved in the accident Exh.71,
postmortem note of the deceased Exh.72, R.C.
Book of the vehicle Exh.67, insurance policy
of the vehicle Exh.66, driving license of the
driver Exh.65, birth certificate of the
deceased Exh.73, statement of account of pay
for the year 2015-16 Exh.37, promotion letter
Exh.38, statement of account of pay for the
year 2012-13 Exh.39, performance letter for
the year 2012 Exh.40, variable salary
calculation for the year 2012 Exh.41,
Companies variable salary letter Exh.42,
letter of Company (transfer to Delhi) Exh.43,
letter of increment of salary Exh.44, Form 16
Part A for the assessment for the year 2012-13
paid tax Rs.3,73,500/- at Exh.81, sale deed
C/FA/240/2021 JUDGMENT DATED: 09/02/2022
for Satsang Bungalows no. C/29, Exh.51, fixed
deposits of ICICI Bank Exhs.52 to 54, copy of
index of bungalow no. A/3/20 at Umraj Exh.55
and copy of fixed deposit of State Bank of
India Exh.56. The respondent no.3 - insurance
Company examined Dipak Mukeshkumar Panchal
Exh.64. The Tribunal appreciated the oral
deposition of one of the claimant at Exh.47 as
well as the FIR Exh.68 and the Panchnama at
Exh.70 and came to the conclusion that the
driver of the Swift Desire car in which the
deceased was traveling was solely negligent.
Considering the age of the deceased based upon
the birth certificate Exh.73, it was construed
by the Tribunal that he was 40 years and 3
months old on the date of the accident. The
Tribunal, after considering the deposition of
the witness at Exh.36, considered the other
documentary evidence as regards the income and
came to the conclusion that the salary of the
deceased was Rs.22,22,011/- per annum at the
time of the accident and gave 30% prospective
income and applying multiplier of 15 after
deducting one-fourth towards personal expenses
multiplier of 14 awarded a sum of
Rs.2,37,88,492/- towards dependency loss to
the claimants. Considering the deposition of
the witness - Sneha Prakashbhai Vaghela at
Exh.47, the Tribunal took into consideration
that an amount of Rs.2,00,00,000/- was
C/FA/240/2021 JUDGMENT DATED: 09/02/2022
received by way of personal accident policy
from the employer and while partly allowing
the claim petition, deducted amount of
Rs.2,00,00,000/- and thus, awarded
compensation of Rs.37,88,492/- towards
dependency loss and additional amount of
Rs.70,000/- towards conventional heads and
thus, while partly allowing the claim
petition, awarded total compensation of
Rs.38,58,492/- with 9% interest from the date
of filing of the claim petition till its
realization and being aggrieved by the same,
the present appeal is filed by the claimants.
3. At this stage, it would also be appropriate to
note that the appellants - original claimants
have preferred an application for additional
evidence as provided under Order 41 Rule 27 of
the Code of Civil Procedure, 1908 and have
produced the following documents, which could
not be produced before the Tribunal.
(a) Communication dated 28.11.2014 addressed by
Endress+Hauser (India) Pvt. Ltd. to Sneha
Vaghela for an of Rs.2,96,820/-.
(b) Communication dated 9.12.2014 addressed by
Endress+Hauser (India) Pvt. Ltd. to Sneha
Vaghela for an amount of Rs.4,00,000/-.
C/FA/240/2021 JUDGMENT DATED: 09/02/2022
(c) Communication dated 18.12.2014 addressed by
Max Life Insurance to Endress+Hauser (India)
Pvt. Ltd. for an amount of Rs.62,00,000/-.
(d) Another communication dated 18.12.2014
addressed by Max Life Insurance to
Endress+Hauser (India) Pvt. Ltd. for an amount
of Rs.62,00,000/-.
(e) Insurance discharge confirmation receipt from
Mrs. Sneha Vaghela for an amount of
Rs.62,27,500/-.
4. Heard Mr. Hiren Modi, learned advocate for the
appellants - original claimants and Mr. Rathin
P. Raval, learned advocate for the respondent
no.3 - insurance Company.
5. Mr. Hiren Modi, learned advocate for the
appellants - original claimants has contended
that considering the documents which are
sought to be produced by way of additional
evidence, only part of it was received as
accident insurance, whereas other part of
major portion of Rs.2,00,00,000/- cannot be
deducted from the benefit of the Act. It was
also contended that the Tribunal has committed
an error in considering the income to be on a
lower side. It was also contended by Mr. Modi
that though the Tribunal has recorded the
C/FA/240/2021 JUDGMENT DATED: 09/02/2022
finding that the deceased was 40 years and 3
months old, the benefit of prospective income
and the multiplier has to be considered as if
he was 40 years old as the deceased had not
completed six months of the said year. Mr.
Hiren Modi, learned advocate for the appellant
also contended that the documents which are
now sought to be produced were not within the
knowledge nor in possession of the appellants
and after much difficulty, the documents have
been procured by the appellants which will
have a direct impact on the entitlement of the
compensation of the appellants. Predominantly,
on the aforesaid grounds, the impugned
judgment and award is challenged.
6. Per contra, Mr. Rathin P. Raval, learned
advocate for the respondent no.3 - insurance
Company has submitted that though these
documents were in knowledge of the appellants,
the same were not produced. According to Mr.
Raval, genuineness as well as authenticity of
the said documents is required to be examined
by leading evidence and an important limb of
an opportunity to cross-examine the author
and/or claimant would be lost if the
additional evidence is considered without
giving an opportunity of being cross-examined
to the respondent - insurance Company. Mr.
Raval contended that in such an event, even if
C/FA/240/2021 JUDGMENT DATED: 09/02/2022
this Court finds it proper to take the
evidence on record, the proceedings deserves
to be remanded back to the Tribunal for its
appreciation of the additional evidence now
relied upon by the appellants.
7. Considering the totality of facts, the fact
remains that before the Tribunal, the
documents were not produced. It is no doubt
true that the appellants were not in
possession of the said documents and the
documents which have direct impact on the
quantum of the compensation that can be
awarded to the appellants hinges on the true
appreciation of the documents which are now
sought to be produced by way of additional
evidence. The insurance Company has a right to
rebut the same and such exercise would be
possible only before the Tribunal.
8. In peculiar facts and circumstances of the
case, we allow Civil Application no.1 of 2021
and permit the appellants to produce the
aforesaid documents on record and the impugned
judgment and award is hereby quashed and set
aside and the proceedings of MACP no.437 of
2014 are remanded and restored back to the
file of the Tribunal. The Tribunal shall give
an opportunity to adduce the evidence to both
the sides both oral and documentary, if any,
C/FA/240/2021 JUDGMENT DATED: 09/02/2022
and decide the claim petition de novo after
appreciating the documents which are permitted
to be brought on record. It goes without
saying that it is open for both the parties to
take all available contentions before the
Tribunal. As the accident is of the year 2014,
the Tribunal is requested to give priority to
the remanded proceedings and endeavour to
complete the same, subject to cooperation of
the parties, preferably within a period of six
months from the date of receipt of this
judgment and order.
9. With these observations, this appeal is
disposed of.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
Maulik
