Balvantsinh Nathubha Jadeja vs Rashiklal Laxmidas Bathiya
2022 Latest Caselaw 7683 Guj

     C/FA/2261/2011                                     JUDGMENT DATED: 08/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 2261 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                                 Sd/-

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1    Whether Reporters of Local Papers may be allowed                         No
     to see the judgment ?

2    To be referred to the Reporter or not ?                                  No

3    Whether their Lordships wish to see the fair copy                        No
     of the judgment ?

4    Whether this case involves a substantial question                        No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                         BALVANTSINH NATHUBHA JADEJA
                                     Versus
                      RASHIKLAL LAXMIDAS BATHIYA & 4 other(s)
==========================================================
Appearance:
MR AB GATESHANIYA(3766) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 5
MR HG MAZMUDAR(1194) for the Defendant(s) No. 5
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                                 Date : 08/09/2022

                                 ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied with the

C/FA/2261/2011 JUDGMENT DATED: 08/09/2022

impugned judgment and award dated 9.12.2009, passed

by the learned Motor Accident Claims Tribunal (Fast

Track Court No.2) Jamnagar in M.A.C.P. No. 179 of 2001

the appellant has filed present appeal. In the said

judgment and award the learned Tribunal has rejected

the claim petition of the appellant.

2. The short facts emerging from the record, are as

under:-

2.1 On 25.10.2000 when the applicant went to take

refreshment on the scooter bearing registration No.GJ-10-

D-1347 at about 9.30 O'clock while he was returning and

reached near Nagnath Corner, opposite Tin Factory at

that time one Maruti Van bearing registration No.GJ-3-K-

5026 came with rashed and negligent manner and dashed

with the scooter with the applicant. Due to this accident

the applicant received injuries and therefore filed

application before the Tribunal for the compensation to

the tune of Rs.1,50,000/- whereby the Tribunal has

C/FA/2261/2011 JUDGMENT DATED: 08/09/2022

rejected the claim petition of the applicant. Hence, he

filed present appeal.

3. Mr. Gateshaniya, learned Counsel for the appellant

submitted that the learned Tribunal has committed an

error while appreciating the evidence on record. He

further submitted that learned Judge has committed an

error by considering the 100% negligency on the part of

the appellant being a driver of the scooter offending

vehicle. It is also further contended that the learned

Motor Accident Claims Tribunal has not properly

appreciated income of the appellant while coming to the

conclusion and while passing the impugned order.

Therefore, the impugned judgment and order passed by

the learned Motor Accident Claims Tribunal is erroneous.

4. Per contra Mr. Mazmudar and Mr. Nanavati learned

Counsels for the respondents have submitted that the

Tribunal has passed the order by taking into account all

the relevant aspects and after appreciating all the

C/FA/2261/2011 JUDGMENT DATED: 08/09/2022

evidence placed on record and therefore, no interference

is made out and the appeal is required to be dismissed.

5. I have Mr.A.B. Gateshaniya, learned advocate for the

appellant and Mr. G.C. Mazmudar, learned advocate for

the respondent No.5 and Mr. Vibhuti Nanavati, learned

advocate for the respondent No.3.

6. I have also gone through the record and

proceedings, more particularly the panchnama of the

place of accident at Exh.46. It is clearly revealed that

while turning the maruti van the offending vehicle

involved in the accident i.e. marutivan, the appellant

dashed in middle of the maruti van and there is band also

found on the middle of the maruti van. It is observed in

the panchnama at Exh.46, which clearly reveals that

while turning and without indicating the appellant could

not control his vehicle and dashed his scooter with the

maruti van.

C/FA/2261/2011 JUDGMENT DATED: 08/09/2022

7. Considering the said facts it appears that the

learned Tribunal has not appreciated these evidence in its

proper spirit and completely overlooked and merely

relying upon the deposition of the witness, more

particularly the cross examination of the appellant, the

learned judge has passed the impugned judgment and

order while rejecting the claim petition.

8. In view of the above, I am of the opinion that the

impugned judgment and award passed by the learned

Tribunal is erroneous and against the facts of the present

case. Hence, the present appeal is hereby allowed in part

and the impugned judgment and award dated 9.12.2009,

passed by the learned Motor Accident Claims Tribunal

(Fast Track Court No.2) Jamnagar in M.A.C.P. No. 179 of

2001 is hereby quashed and set aside to the aforesaid

exte.

9. Considering the negligency on the part of the

scooter driver at 50%, as it appears that he also in very

C/FA/2261/2011 JUDGMENT DATED: 08/09/2022

high speed and he could not control the vehicle and he

dashed with the motor van, the present appellant is

entitled to get the compensation to the tune of Rs.68760/-

out of that considering his 50% negligency he is entitled

for Rs.34,380 towards the compensation. The same will

fetch 6% simple interest from the date of the application

till the final realization of the award.

10. The amount of compensation be deposited by the

respondent No.3-insurance company within 8 weeks from

the date of receipt of the order. No order as to costs.

11. The present appeal is allowed in part and modified

to that extent. Accordingly the appeal stands disposed of.

12. The record and proceedings be sent back to the

concerned Tribunal forthwith.

Sd/-

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI