Gujarat High Court
Rekhaben Kanaiyalal Desani vs Hasmukhbhai Hirjibhai Chavda on 29 July, 2022
Bench: Gita Gopi
C/FA/3114/2021 ORDER DATED: 29/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3114 of 2021
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REKHABEN KANAIYALAL DESANI
Versus
HASMUKHBHAI HIRJIBHAI CHAVDA
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 29/07/2022
ORAL ORDER
1. Mr. Tushar Sheth, learned advocate for the appellant stated
that the present appellant sustained injury during the accident
which occurred on 4.9.2002 on Padghari bye-pass road. Mr. Sheth
submitted that a group of claim petitions were filed and the
applicants of those claim petitions were travelling in Indica Car
No. GJ-3U- 1410 and because of the lights of the vehicles coming
from the opposite side, the driver could not control the vehicle
and it went down the road. During the period, the claimants were
injured and, therefore, claim petitions were filed by each of
them. Mr. Sheth states that the present applicant was along with
her husband and her claim petition was numbered as MACP No.
1285/2002 and while that of her husband was numbered as
C/FA/3114/2021 ORDER DATED: 29/07/2022
MACP No. 1287/2002. Mr. Sheth submits that thereafter she took
divorce from her husband and re-married one Jayeshbhai
Govindbhai Pitroda on 15.4.2010. Mr. Sheth stated that she was
not aware of the stage of the proceedings and was not informed
about proceedings by her earlier husband. Mr. Sheth submits that
thereafter she came to know about the judgment and award in
the month of June, 2019.
2. Mr. Sheth, learned advocate for the appellant submits that
the claim petition of the husband was dismissed on the ground
that he had not provided any documents with regard to the injury
and the expenses in support of his deposition and failed to prove
the injury and expenses, which according to Mr. Sheth is a
sufficient reason on record that earlier husband of the Appellant
had not taken care of his own claim, which had led to grave loss
to the appellant.
3. Countering the same, Mr. Mazmudar, learned advocate
submitted that it is impossible to believe the ground of the
appellant more so when the appellant had divorced her husband,
she was bound to inquire about the proceedings, which she had
instituted and after her re-marriage on 15.4.2010 and the
C/FA/3114/2021 ORDER DATED: 29/07/2022
judgment and award was declared on 17.8.2012 which, according
to Mr. Mazmudar was sufficient time to inquire about her
proceedings, and therefore, the ground does not appear to be
genuine or bonafide.
4. Every claim petition is required to be disposed of on merits.
The present appellant sustained injury and for that she had filed
MACP No. 1285 of 2002. She has pleaded about her injury and
made a claim of Rs.2 Lakh compensation for the injury so
sustained. The appellant is ready and willing to submit the
evidence. This Court considers that an opportunity is required to
be granted to the appellant lady for the wrong sustained by her
during the motor accident. However, it is also required to be
noted that the Insurance Company should not be penalised for
the negligence of the present appellant. It was for her to remain
vigilant to adduce evidence before the Tribunal. At the same
time, opportunity is also required to be granted to her when she
proposes to prove her case on merits but to balance the equity, it
is required to be directed to the appellant that she would not be
entitled for the interest amount from 17.8.2012 till today i.e. the
date of this Order.
C/FA/3114/2021 ORDER DATED: 29/07/2022
5. In the result, the order dated 17.8.2012 in connection with
the claim petition being MACP No. 1285 of 2002 is quashed and
set-aside. It is directed that the MACP No. 1285/2002 is ordered
to be restored on the file of the concerned Tribunal and evidence
be recorded after issuance of notice to the parties and advocate
on record and the same be disposed of in accordance with law
with condition that Appellant shall forego the interest from
17.8.2012 till today.
(GITA GOPI,J)
SAJ GEORGE
