Bansilal Dayaramji Prajapati vs Kantilal Shankerdas Prajapati
2023 Latest Caselaw 2959 Guj

       C/FA/770/2023                               ORDER DATED: 17/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 770 of 2023

                                      With

                CIVIL APPLICATION (FOR STAY) NO. 1 of 2023

                                       In

                        R/FIRST APPEAL NO. 770 of 2023

                                      With

     CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2023

                                       In

                        R/FIRST APPEAL NO. 770 of 2023
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                        BANSILAL DAYARAMJI PRAJAPATI
                                   Versus
                       KANTILAL SHANKERDAS PRAJAPATI
==========================================================
Appearance:
MR V B MALIK(5071) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 5,6
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 17/04/2023

                                ORAL ORDER

1. The present appeal has been filed for quashing

and setting aside the judgment and award passed by the

learned Motor Accident Claims Tribunal (Aux.-II),

Mahesana at Visnagar in Motor Accident Claim Petition

No.63/2014 dated 04.10.2022.

C/FA/770/2023 ORDER DATED: 17/04/2023

2. Mr. V.B. Malik, learned advocate for the

appellant submitted that the final copy of the judgment,

which was uploaded on 04.10.2022 is not consistent with

the judgment uploaded on 26.09.2022, copy of which is

produced in Civil Application No.2 of 2023 in First Appeal

No.770 of 2023. Mr. Malik submitted that in the said

judgment, the joint and several liability of opponent nos.1

and 2 was held by the Tribunal, where compensation

amount of Rs.14,54,000/- has been awarded to the

claimant at 9% interest. He submits that later on without

informing the owner of the vehicle i.e. the present

appellant, the learned Tribunal suddenly changed the

judgment by exonerating the Insurance Company, which

was pronounced on 04.10.2022 without giving any

opportunity to the owner of the Dumper bearing No.GJ-

09-X-8110 to even prove that the driver was holding a

valid license on the date of accident.

3. Advocate Mr. Malik further submitted that the

C/FA/770/2023 ORDER DATED: 17/04/2023

liability aspect was noted by the Tribunal, which lay down

the joint liability, while suddenly the Tribunal went on to

observe the defence taken by the opponent no.2 -

Insurance Company that the driver of the Dumper was

not holding valid license and, therefore, a prayer was

made to exonerate the Insurance Company. The

Insurance Company had examined Mr. Badarsinh

Bhavansinh Parmar, the driver of Dumber bearing No. GJ-

09-X-8110 at Exh.59, who admitted that he was not

holding a valid driving license on the date of accident,

and the license expired on 05.02.2008.

4. Advocate Mr. Malik referring to the extract of

the driving license issued from the Transport

Department, Government of Gujarat, stated that the

driving license transaction history, as has been received

from the R.T.O. Department, shows that the driving

license has been renewed time to time and necessary

endorsement of the authorities is on the license. He

submits that the learned Tribunal should have asked for

C/FA/770/2023 ORDER DATED: 17/04/2023

the copy of the driving license from the driver or from the

R.T.O. office, in stead of, just relying upon any admission

made by the driver without any supporting evidence.

5. In the uploaded judgment of 26.09.2022 by

M.A.C.T. Tribunal (Aux.-II), Mahesana at Visnagar in

M.A.C.P. No.63/2014, the copy of which is produced on

record in Civil Application No.2 of 2023 in First Appeal

No.770 of 2023, which starts from page nos.21 to 39,

reflects the liability aspect. The said judgment, thus, laid

down in para-13, as under:

"13. So far as question of payment of liability is concerned, as discussed in Issue No.1 that, the impugned accident was occurred upon sole negligence in driving on the part of the driver of Dumper No.GJ-

09-X-8110 and the claimants have produced Insurance Policy of the said vehicle at Exh.37, which shows that the Policy of said vehicle was in force at the time of the accident and the same is not denied by the opponent No.2. Thus, the opponent NO.1 as being owner and the

C/FA/770/2023 ORDER DATED: 17/04/2023

opponent No.2 as being insurer of Dumper No.GJ-09-X-8110 both are held liable to pay compensation to the applicants jointly and severally. The opponent No.3 is hereby exonerated from the liability to pay compensation to the claimants."

5.1 While suddenly, on 04.10.2022, the same

Auxiliary Tribunal of Mahesana at Visnagar, exonerated

the Insurance Company holding that the license was not

renewed.

6. The copy of abstract of the license shows the

name of driver - Mr. Badarsinh Bhavansinh Parmar. It

also shows the validity details of non-transport from

13.12.2012 to 12.12.2017 and transport from 13.12.2012

to 12.12.2015; the date of accident is 05.01.2014.

7. Advocate Mr. Malik stated that the driver has

not been made party respondent in the matter, where if

at all any negligence could be drawn, would be of driver

of the vehicle, and, thus should also be made jointly and

severely liable for paying the compensation; however,

C/FA/770/2023 ORDER DATED: 17/04/2023

stated that though the driving license from the R.T.O.

records shows that he was holding the copy of license on

the date of accident, the insurance company has been

wrongly exonerated. The concept of driving licence is

required to be considered by the Tribunal, since copy of

the same is produced by the owner.

8. In view of the above, the judgment and order

dated 01.10.2022 passed by the Motor Accident Claims

Tribunal (Aux.-II), Mahesana at Visnagar in M.A.C.P.

No.63/2014 stands quashed and set aside qua the liability

aspect. The matter is remanded back to the concerned

Tribunal. Let the driver of the Dumper namely Badarsinh

Bhavansinh Parmar be made party respondent, and the

appellant as owner, is permitted to adduce evidence

before the Tribunal and the Tribunal is, thus, directed to

reexamine the liability aspect for the payment of

compensation and decide the same within a month. The

present appeal stands disposed of.

9. Mr. Hiren M.Modi, learned advocate for the

C/FA/770/2023 ORDER DATED: 17/04/2023

claimants stated that the claimants have also challenged

the judgment and award dated 04.10.2022 by preferring

appeal being First Appeal No.101 of 2022 before this

Court with prayer for enhancement, which is admitted.

10. In view of the submission of the learned

Advocate of the claimants, the judgment of the Tribunal,

which would be passed after restoring the matter, be

placed in First Appeal No.101 of 2022.

11. In view of the above, no order in Civil

Application No.1 of 2023 and the same stands disposed of

accordingly.

Order in Civil Application No.2 of 2023

The present application for production of copy of

driving license of driver - Badarsinh Bhavansinh Parmar

on the record of First Appeal, is allowed.

(GITA GOPI,J) Pankaj