Gujarat High Court
Sajanbahen Sanjaybhai Baraiya vs Nareshbhai Shankarbhai Rabari on 7 March, 2023
Bench: Gita Gopi
C/FA/4542/2022 ORDER DATED: 07/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4542 of 2022
With
R/FIRST APPEAL NO. 4548 of 2022
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SAJANBAHEN SANJAYBHAI BARAIYA
Versus
NARESHBHAI SHANKARBHAI RABARI
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 3
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 4
MR NK MAJMUDAR(430) for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 07/03/2023
COMMON ORAL ORDER
1. The above Appeals arise from a common judgment
and decree dated 28.09.2022 passed by the learned
Motor Accident Claim Tribunal (Auxi.), Kheda at
Nadia in M.A.C.P. No.774 of 2015 which pertains to
the same accident.
2. Learned Advocate for the appellants Mr. Nishit A.
Bhalodi submits that the challenge has been given to
the judgment and award primarily on the ground that
the learned Tribunal ought to have passed an order
C/FA/4542/2022 ORDER DATED: 07/03/2023
of pay and recover. Referring to the common order
of this Court dated 13.12.2021 passed in First Appeal
No.976 of 2020 with First Appeal No.975 of 2020, it
is submitted that the order of this Court was brought
to the notice of the Tribunal wherein modification
was made by the Co-ordinate Bench of this Court, in
the final paragraph directing the Insurance Company
to pay first and then recover from the owner of the
vehicle involved in the accident. Learned Advocate
Mr. Nishit A. Bhalodi thus, submitted that the
learned Tribunal had concluded that it does not have
the power to pass an order of pay and recover.
3. Learned Advocate for the Insurance Company Mr.
Chirayu A. Mehta submitted that the driver of the
offending vehicle did not have a valid permit and
that Co-ordinate Bench has dealt with the issue in the
order.
4. Heard learned Advocates appearing for the respective
parties and perused the records of the case. The
vehicular accident is of 18.07.2015. The deceased
was returning on his motor cycle bearing Registration
C/FA/4542/2022 ORDER DATED: 07/03/2023
No.GJ-07-AP-309 with a pillion rider (of M.A.C.P.
No.775 of 2015). When they reached at about 8.00
pm at the place of incident, it is stated that a vehicle
bearing Registration No.MH-04-GC-1303 driven by the
respondent No.1 with ownership of the respondent
No.2 came in a rash and negligent manner and
dashed with the motorcycle. Both the persons
sustained body injuries and succumbed to them. The
issue regarding negligence has been dealt with by the
Tribunal and it has been held the accident due to the
sole negligence of the offending vehicle bearing
Registration No.MH-04-GC-1303. There is nothing on
record to take a contrary view in this case.
5. In similar facts of the matter, as stated by learned
Advocate Mr. Nishit A. Bhalodi, a Dumper was held
liable for the accident which had dashed with two
motor cycle taking the lives of four people.
6. Since the other facts are undisputed without going
into other further details, relying on the order of the
Co-ordinate Bench dated 13.12.2021 passed in First
Appeal No.976 of 2020 with First Appeal No.975 of
C/FA/4542/2022 ORDER DATED: 07/03/2023
2020, the operative order of the learned Tribunal is
required to be modified.
7. Let the Insurance Company of the offending vehicle
on which the liability has been laid down pay the
amount of compensation and later on recover the
same from the concerned.
8. Both the Appeals stand disposed of in the aforesaid
terms. Direct Service is permitted.
Sd/-
(GITA GOPI, J)
CAROLINE
