Baluben Vikramsinh Parmar vs Indravadan Prahladbhai Patel
2023 Latest Caselaw 1531 Guj

     C/FA/3713/2022                               JUDGMENT DATED: 14/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3713 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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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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                        BALUBEN VIKRAMSINH PARMAR
                                   Versus
                      INDRAVADAN PRAHLADBHAI PATEL
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Appearance:
MR DARSHAN DAVE ADVOCATE FOR MS KRUSHITA D DAVE(7857) for
the Appellant(s) No. 1,2,3,4,5,6,7
RULE SERVED for the Defendant(s) No. 1,2,3
==========================================================

    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 14/02/2023


                             ORAL JUDGMENT

1. Advocate Mr. Darshan Dave for Ms. Krushita

D.Dave, for the appellants submits that the claimants are

C/FA/3713/2022 JUDGMENT DATED: 14/02/2023

seven dependents of deceased - Vikramsinh Magansinh

Parmar, who had challenged the judgment and order

dated 08.10.2021 passed by the Motor Accident Claims

Tribunal (Main) Sabarkantha at Himatnagar in M.A.C.P.

No.142 of 2015, where the claim petition under section

166 of M.V. Act, came to be dismissed on the ground that

the involvement of vehicle bearing Registration No.GJ-01-

KL-4351, is not proved.

2. Mr. Dave submitted that deceased was on the

correct side of Talod Road, which was from Vavdi Chokdi

to Talod, and the accident occurred at about 7:30 in the

evening at Dhanpura Kampa Stand, when the car no.GJ-

01-KL-4351, came at very excessive speed and in a rash

and negligent manner. It is submitted by Mr. Dave that in

breach of traffic rule, though there was sufficient space

on the road, he came negligently and dashed the

deceased, who sustained severe head injury and serious

injury on the chest, and during the course of treatment he

was declared dead.

C/FA/3713/2022 JUDGMENT DATED: 14/02/2023

3. Mr. Dave submitted that FIR has been given by

cousin, who was not present at the place, but under

information received from others, he filed FIR, where in

the FIR he has noted as 'Jeep Car'. Mr. Dave submitted

that it is the duty of the Investigating Officer to find out

the real facts, where the person giving the FIR is not the

eye witness to the incident. In such a case, information in

the FIR would be collected from the person, who has

knowledge about the accident. Mr. Dave further stated

that, had the learned Tribunal any doubt about the

involvement of the vehicle, then should have follow the

directions given in Jay Prakash Vs. National Insurance

Company Ltd. & Ors., reported in (2010) 2 SCC 607,

and the Tribunal on its own should have received the

Accident Information Report (AIR) in Form No.54 of

Central Motor Vehicle Rules, 1989, and should have

verified all the real facts to the accident. Mr. Dave

submitted that the learned Tribunal has placed all the

burden on the claimants, who are not the eye witness to

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the incident. Mr. Dave states that the charge-sheet has

been filed against opponent no.1 - Driver, Indravadan

Prahaladbhai Patel of Hundai I-10 Car No.GJ-01-KL-4351,

and the owner of the vehicle is opponent no.2.

4. Mr. Dave further submitted that the Tribunal

inquiring in Form No.-54, placed much reliance on the

arguments of learned Advocate of the Insurance

Company, where it was rather the bounden duty of the

Insurance Company to have brought the real facts on

record to have shown the Court the actual vehicle

involved, where it was not at all necessary to go beyond

the charge-sheet which has been filed by the police,

would be only after the detail investigation.

5. It appears that the Insurance Company has

contended that the 'telephonic Vardhi', where the alleged

vehicle involved in the accident is shown as Bolero. The

FIR has been lodged by the cousin of the deceased

against unknown Jeep driver. Even at the time of drawing

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of Panchnama, on the next day, the vehicle was not

present. The eye witness - Dhirajbhai Babubhai Patel has

not disclosed the number of the car. Moreover, it has

been contended by the Insurance Company that Hyundai

I-10 Car No.GJ-01-KL-4351 was not involved in the

accident.

6. The learned Tribunal while considering the

case has found substance in the argument canvassed by

the Advocate of the Insurance Company, observing that

no complaint was lodged on the same day i.e. on

08.02.2012. The complainant has specifically lodged the

same against unknown Jeep and the word 'Jeep' has been

repeatedly used almost about six times in the complaint,

wherein the Vardhi Bolero has been specifically

mentioned; so, there is no chance of any faint memory

while lodging the complaint also. The learned Tribunal

has further mentioned that opponent nos.1 and 2 in their

reply admitted the incident of accident.

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6.1 It is strange to note that the learned Tribunal

has very categorically observed that opponent nos.1 and

2 have admitted the incident of accident in their reply,

but unfortunately has observed that it is not their lookout

as to whether the applicants should be awarded

compensation as per the policy condition or not? Such

observation of the learned Tribunal is very unfair,

unreasonable and against the object of M.V. Act, where it

is duty of all the concerned to assist the Court in coming

to just conclusion, and more so, where the victims of the

accident case are to be compensated, as has been rightly

observed in Jay Prakash Vs. National Insurance Company

Ltd. (Supra), and therefore the Hon'ble Apex Court

referring to the background of the facts had given

direction to the police authorities, claim Tribunals and

suggestions were also given to the Insurance Companies

by paragraph nos.16 to 31, and therefore every Tribunal

is bound to follow the directions laid down in Jay Prakash

case (supra).

C/FA/3713/2022 JUDGMENT DATED: 14/02/2023

7. While rejecting the claim petition, the learned

Tribunal has further observed that the opponent

Insurance Company has denied all the documents, while

opponent nos.1 and 2 have admitted all the documents by

putting an endorsement, but have never stepped in the

witness box, and opportunity to cross-examine the

opponent nos.1 and 2 was not available to the opponent

no.3, and they have not tendered any affidavit in the

entire litigation. Further, the learned Tribunal has

observed that the witness examined on behalf of the

applicants namely Dhirajbhai Babubhai Patel and

opponent no.1 i.e. driver, both are from the same village.

The learned Tribunal came to the conclusion that the said

witness is planted, whereas opponent no.1 - driver of the

offending vehicle has not tendered his evidence, and thus

the learned Tribunal has observed that after going to the

entire evidence, it transpired to the Tribunal that they

have improved the version to give shape to the claim of

the claimants.

C/FA/3713/2022 JUDGMENT DATED: 14/02/2023

8. Mr. Dave further stated that the Insurance

Company has examined Vijaysingh Vatsinghbhai Utedra

at Exh.79, who was the investigating officer of Cr.No.I-

2/2012, and the Panchnama was drawn on 09.01.2012,

and the telephonic Vardhi was received on 08.01.2012

from Talod CHC. Thus, Mr. Dave stated that after the

Panchnama, the FSL report was also received, where the

conclusion has positively been drawn about the accident;

however, FSL report writes about the make of the

Company as Alto Car of Maruti Company, while the

registration number in the FSL report is same. Thus, Mr.

Dave relying on the judgment of Kusum Lata Vs. Satbir,

reported in (2011) 3 SCC 646, states that when at the

time of accident, the deceased was with his wife, one son

and daughter. Both the children were minors at the time

of the accident, and under such circumstances when the

husband/father requires immediate medical aid, he was

taken to the hospital. Thus, Mr. Dave submitted that the

very fact of taking him to the hospital, where the fact of

vehicular accident was disclosed, would remove all the

C/FA/3713/2022 JUDGMENT DATED: 14/02/2023

doubts of the involvement of the vehicle, where the

accused himself has admitted before the investigating

officer regarding the accident, which has taken place; and

further there is no such suggestion made to the

investigating officer from the Insurance Company that he

had filed any false charge-sheet. While in the cross-

examination of the investigating officer, he has stated

that after receiving sufficient evidence he had filed

charge-sheet against Car No.GJ-01-KL-4351.

8.1 Mr. Dave stated that, in circumstance of a

accident of elder member, it would be difficult for the

members of the family to remember the number of the

vehicle or make of the vehicle, or could have even

differentiate between the vehicle as Jeep and Car, and the

FIR notes about some 'Jeep Car' and no further details of

brand of the Car.

9. In Kusum Lata (supra), the Hon'ble Apex Court

has observed in paragraph nos.8, 9 and 10, which read as

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under:

8. This Court is unable to appreciate the aforesaid approach of the Tribunal and the High Court. This Court is of the opinion that when a person is seeing that his brother, being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such mental strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural.

9. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The so-called reason that

C/FA/3713/2022 JUDGMENT DATED: 14/02/2023

as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact-situation in this case. It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.

10. Reference in this connection may be made to the decision of this Court in Bimla Devi and others v. Himachal Road Transport Corporation and others [(2009) 13 SCC 530], in which the relevant observation on this point has been made and which is very pertinent and is quoted below:-

"In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants.

The claimants were merely to establish their case on the touchstone of preponderance of probability. The

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standard of proof beyond reasonable doubt could not have been applied."

10. In this case, keeping in mind the observations

made in Kusum Lata Vs. Satbir (supra) and when the

investigating officer was examined by the opponent

Insurance Company at Exh.79, and when he has deposed

in the cross-examination in para-8 after receiving

sufficient evidence, he had filed the charge-sheet against

the driver of GJ-01-KL-4351, and when he had produced

all the documents regarding his investigation which is

notes made by his writer during the course of

investigation, at Exh.81, and when the respondent nos.1

and 2 have admitted in their written statement about the

accident, and when the charge-sheet have been filed, and

when no case of any fraud has been registered, this Court

feels that the observations made by the learned Tribunal

for dismissing the claim petition is erroneous, is not

consistent with the evidence on record and the learned

Tribunal has unnecessarily laid down onerous liability on

the claimants. Therefore, the observations for rejecting

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the claim is required to be set aside.

10.1 On the reasons given hereinabove, this Court

comes to the conclusion that the accident has occurred

because of sole negligence of Hyundai i-10 Car bearing

No.GJ-01-KL-4351, which has been chargesheeted against

opponent no.1.

11. In view of the above, the appeal is allowed in

the aforesaid terms. The judgment and order dated

08.10.2021 passed by the Motor Accident Claims Tribunal

(Main) Sabarkantha at Himatnagar in M.A.C.P. No.142 of

2015 is quashed and set aside. Since the learned Tribunal

has not considered the income aspect and other loss for

compensation on different heads, the M.A.C.P. No.142 of

2015 is remanded back to the concerned Tribunal on the

limited aspect of considering the loss to the dependents

in accordance to the settled judgments of the Hon'ble

Apex Court, and the same exercise be completed within a

period of Five Months from the date of receipt of copy of

this order.

C/FA/3713/2022 JUDGMENT DATED: 14/02/2023

11.1 Record and Proceeding, if any, be sent back to

the concerned Court forthwith.

Direct service is permitted.

(GITA GOPI,J) Pankaj