Gauravkumar Ambalal Chaudhry vs Nagjibhai Dahyabhai Rawal
2023 Latest Caselaw 293 Guj

     C/FA/2063/2020                              JUDGMENT DATED: 11/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2063 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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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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                      GAURAVKUMAR AMBALAL CHAUDHRY
                                   Versus
                        NAGJIBHAI DAHYABHAI RAWAL
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Appearance:
MR. BRIJESH RAMANUJ for MR ANKIT SHAH(6371) for the Appellant(s) No.
1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2,3
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
                     Date : 11/01/2023
                     ORAL JUDGMENT

1. The appellant - original claimant has filed this First Appeal against the judgment and award dated 25.4.2018 passed by the Motor Accident Claims Tribunal (Auxi-V), Mahesana in M.A.C.P. No.625 of 2006, which was preferred under Section 166 of the M.V. Act, whereby, against a claim valued at Rs.2,00,000/- for the injuries sustained in an accident that had occurred on 26.5.2006, the

C/FA/2063/2020 JUDGMENT DATED: 11/01/2023

Tribunal has awarded a sum of Rs.3,05,000/- with interest at the rate of 9% per annum from the date of claim petition till realization, holding liable the opponents therein to pay the compensation to the appellant - original claimant. Hence, grieved claimant has filed this appeal on the point of quantum.

2. The brief facts of the case are that on 26.05.2005, at about 10:00 hours, while minor applicant was riding on his bicycle towards house from Ramosana Chokdi and when he reached near old R.T.O., at that time, the opponent No.1 came with Tractor, bearing registration No. GJ-02-B-7633 and took a turn on wrong side and dashed with the bicycle, as a result, the appellant sustained fracture on his right leg, That, the appellant was 14 years old and was well and healthy and was studying at the time of accident. That, because of this accident, he was unable to do his routine work for long time. Accordingly, the appellant had preferred the claim petition as aforesaid.

3. Heard learned advocate Mr. Brijesh Ramanuj for learned advocate Mr. Ankit Shah for the appellant and learned advocate Mr. H.G. Mazmudar for the respondent No. 3 - the Insurance Company. Though notice is served upon the respondent Nos. 1 and 2, they have chosen not to remain present before this Court.

4. Learned advocate Mr. Brijesh Ramanuj for learned advocate Mr. Ankit Shah for the appellant has urged that the learned Tribunal has committed an error in considering the date of the accident. He has submitted that the accident in question had occurred on 26.5.2006, however, inadvertently, in the claim petition the same was mentioned to be 26.5.2005. Accordingly, taking into consideration such date of the accident vis-a-vis the Insurance

C/FA/2063/2020 JUDGMENT DATED: 11/01/2023

policy the learned Tribunal has come to the conclusion that on the date of accident, the insurance policy was not in operation and thereby, has erred in exonerating the insurance company from the liability to pay the compensation. He submitted that there are ample documentary evidence available on record suggestive of the fact the accident in question had occurred in the year 2006 and not in the year 2005. He has further submitted that the learned Tribunal, without considering the said aspect of the matter, has come to such an erroneous conclusion and hence, interference of this Court is required and accordingly, it is required to allow this appeal by remanding back the matter to the Tribunal concerned for deciding the same afresh.

5. Per contra, learned advocate Mr. H.G. Mazmudar for the respondent No.3 - Insurance Company, while heavily opposing the present appeal submitted that, in the claim petition, it is mentioned that the accident in question had occurred on 26.5.2005, and accordingly the learned Tribunal has rightly considered the claim petition as well as the documentary evidence and other evidence available on record. He further submitted that there was delay in filing the present First Appeal challenging the aforesaid judgment and award and now if the matter is remanded back to the learned Tribunal for deciding afresh, and in case the Tribunal comes to a different conclusion and the Insurance Company to be held liable to indemnify, the Insurance Company will have to pay the interest for such a period and accordingly for the so called error on the part of the appellant - claimant himself, the Insurance Company will have to suffer and accordingly, it is requested that this appeal, being bereft of any merits is required to be dismissed.

C/FA/2063/2020 JUDGMENT DATED: 11/01/2023

6. Regard being had to the submissions advanced by both the sides and a perusal of the record, more particularly, the medico legal case papers, prima-facie, it reveals that the accident in question had occurred in the year 2006. Further, perusal of the record prima-facie reveals that the Insurance policy of the vehicle in question was very in operation at the relevant point of time, i.e. in 2006 as canvassed by the learned advocate for the appellant. Accordingly, when it is a specific case of the appellant- claimant that out of inadvertence, the date of accident was wrongly mentioned in the claim petition, in the considered opinion of this Court, ends of justice would meet if the matter is remanded back to the Tribunal concerned for considering the said issue afresh, taking in to consideration all the aforesaid aspects, together with the documentary evidence available on record.

7. In the aforesaid backdrop, the appeal succeeds and is allowed in part. The impugned judgment and award dated 25.4.2018 passed by the Motor Accident Claims Tribunal (Auxi-V), Mahesana in M.A.C.P. No.625 of 2006 is set aside to the extent of exonerates the respondent No.3 - Insurance Company, the matter is remanded back to the Tribunal concerned to decide the said issue exonerating the Insurance Company afresh, considering the actual date of accident by referring the documentary evidence including medico legal papers, within six moths, from the date of receipt of writ of this order, in accordance with law, giving opportunity of hearing to both the sides without being influenced by any order. The rest of the judgment and award shall remain intact.

8. It is clarified that in case the Tribunal comes to the conclusion that the Insurance Company is liable to indemnify the owner of the offending vehicle, in that case, the claimant shall not be entitled to

C/FA/2063/2020 JUDGMENT DATED: 11/01/2023

the interest on the awarded amount, from the date of judgment and award of the Tribunal i.e. 25.4.2018 (now set aside as aforesaid) to the date of this order.

9. Amount, if any, disbursed in favour of the claimant, shall not be refunded and the same shall be subjected to the final order that may be passed in the petition.

10. R & P be sent back to the concerned learned Tribunal immediately.

(A. C. JOSHI,J) prk