Sevantibhai Somabhai Bhangi vs Devram Asharamji Chaudhary
2023 Latest Caselaw 4197 Guj

     C/FA/1799/2022                                    ORDER DATED: 08/06/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1799 of 2022
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                       SEVANTIBHAI SOMABHAI BHANGI
                                  Versus
                       DEVRAM ASHARAMJI CHAUDHARY
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MS RV ACHARYA(1124) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI
                  Date : 08/06/2023
                   ORAL ORDER

1. The claimant is before this Court

challenging the judgment and award dated

29.11.2021, which came to be dismissed by

the learned 4th MACT (Aux), Deesa, District

Banaskantha.

2. Advocate Mr. Vishal Mehta submitted that it

was a case of the claimant that on

11.4.2003, he was traveling on a scooter

bearing registration no. GJ-8 B-2394 as a

pillion rider from Village Thara and when

they reached near the temple of Bahuchar

Mata at Navrang Pan Center, at that time,

one truck bearing registration no. RJ-19 G-

C/FA/1799/2022 ORDER DATED: 08/06/2023

7608 coming from Radhanpur was in excessive

speed and was driving in a rash and

negligent manner dashed the scooter in full

force and the applicant who was pillion

rider sustained fracture injury on the left

leg and skull and multiple injuries on other

parts of the body. Immediately he was taken

to the hospital at Thara for primary

treatment, but since the injuries were

serious in nature, they have been taken for

further treatment at orthopedic hospital of

Dr. Patel at Patan.

3. Mr. Mehta submitted that the claim petition

came to be dismissed as the Judge found

variation in the registration number of the

scooter and that discrepancy was compared

with the number as noted in the claim

petition. Advocate Mr. Mehta submitted that

primary registration no.GJ-8 2395 is similar

in claim petition as well as in deposition

C/FA/1799/2022 ORDER DATED: 08/06/2023

and even in complaint Exh.20, but the only

error that was found of the series, where

actually in the complaint, the series is "B"

while inadvertently in the claim petition,

it was noted as "D" and the claimant while

in his deposition stated series as "T". Mr.

Mehta submitted that any such error has no

relevance to the merits of the case since

the claim is against the truck and the error

which has been noted is of the vehicle on

which the claimant was traveling and being a

case of composite negligence, the

compensation prayer is against the truck

which has registration no. RJ-19 G-7608. Mr.

Mehta referring to the complaint stated that

the learned Tribunal had dismissed the claim

petition on wrong premise observing that in

a cognate matter being MACP no.517 of 2015

(old case no.478 of 2003), appeal was filed

by another pillion rider and in that matter,

C/FA/1799/2022 ORDER DATED: 08/06/2023

it has not been stated that the present

claimant was sitting on the vehicle as a

pillion rider. Mr. Mehta submitted that in

the FIR, it is noted that the accident had

occurred when the persons traveling on the

scooter had alighted. In the FIR, it has

been categorically noted that the present

claimant had come near the scooter and was

talking with the motorcycle driver, at that

time, he met with an accident where the

truck no. RJ-19 G-7608 coming from Radhanpur

had dashed and the said fact as noted in the

FIR has been reflected in the judgment at

Paragraph 15. Inspite of that fact, the

learned Tribunal contrary to the facts on

record had dismissed the claim petition by

drawing discrepancy in the series number of

the scooter where the compensation has not

been even claimed from the scooter driver.

The charge-sheet is produced at Exh.28,

C/FA/1799/2022 ORDER DATED: 08/06/2023

wherein the truck driver has been charge-

sheeted.

4. It appears that the learned Tribunal has

gone into such detail which was not even

necessary to decide the claim petition when

the compensation has been claimed against

the owner, driver and the insurance Company

of the truck.

5. While countering the arguments, Ms. R.V.

Acharya submitted that the minor details of

the deposition which does not affect the

merits of the case are not to be dealt with,

however, every litigant is expected to come

before the Tribunal with clean hands and the

learned Tribunal has rightly observed about

the cognate matter which raises doubt about

the facts of the case and thus, stated that

dismissal of the claim petition should be

considered as just as the claimant's conduct

C/FA/1799/2022 ORDER DATED: 08/06/2023

is not bonafide and has not come to the

Court with clean hands.

6. The record suggest that the insurance

Company was joined as opponent no.2. They

had neither appeared before the Tribunal nor

produced the documentary evidence in support

of the defence and therefore, the claim

petition had been ordered to be proceeded

ex-parte against the opponent no.2 vide

order below Exh.1. The examination-in-chief

Exh.18 shows that the witness has not been

cross-examined by any of the respondents and

the right of cross-examination has been

closed on 1.2.2019.

6.1 Taking the fact to the notice that the case

of the claimant is of a composite

negligence, he can move the compensation

plea against any of the tort feasor. The

matter requires consideration. Hence, the

matter is required to be remanded back to

C/FA/1799/2022 ORDER DATED: 08/06/2023

the Tribunal concerned.

7. In the result, MACP no.3364 of 2009 is

remanded back to the Tribunal where the

claimant is permitted to make amendment

regarding registration number of the

motorcycle, if required. The learned

Tribunal is directed to consider the matter

on merits and decide the case accordingly

and if at all the insurance Company prefers

to resist the case, then right of cross-

examination be granted to the respondents.

Let the exercise of deciding the matter on

merits be completed within a period of four

months. Accordingly, the present appeal

stands disposed of. Record and proceedings

be sent back to the Tribunal forthwith.

(GITA GOPI,J) Maulik