Late Jaysukhbhai Kalubhai ... vs Bhopabhai Bachubhai Bharwad
2023 Latest Caselaw 3951 Guj

     C/FA/2003/2023                               ORDER DATED: 04/05/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2003 of 2023

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 LATE JAYSUKHBHAI KALUBHAI MAKWANA SINCE DIED THROUGH LH
                           Versus
              BHOPABHAI BACHUBHAI BHARWAD
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Appearance:
MR NIRAV C SANGHAVI(5950) for the Appellant(s) No. 1,1.1,1.2
for the Defendant(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 04/05/2023

                               ORAL ORDER

1. By way of this Appeal, the Appellants-claimants have challenged the judgment and award dated 29.01.2020 passed by the learned Motor Accident Claims Tribunal (Main), Bhavnagar in M.A.C.P. No.237 of 2014. The learned Tribunal had dismissed the Claim Petition on the ground of there being default of the claimants in not adducing evidence.

2. Learned Advocate for the appellants-claimants Mr. Nirav C. Sanghavi has referred to Paragraph 6 of the impugned order stating that the examination-in-chief was produced at Exhibit 34 and the claimant/s had produced the copy of the First Information Report,

C/FA/2003/2023 ORDER DATED: 04/05/2023

Charge-sheet, Panchnama which had been procured from the Police Station. It is further submitted that the learned Tribunal had observed that these documents were not proved and that the claimant No.1 had not remained present for cross examination by the respondents and therefore, the right of the claimants of the evidence was closed.

3. It is further submitted that the said observations are contrary to the record, since on 13.01.2017, the order was passed for ex-parte proceedings qua the the respondent No.1. Further, referring to the Affidavit Exhibit 38 produced under Order 18 Rule 4 of the Civil Procedure Code, it is submitted that the Affidavit was recorded while no adjournment was sought by respondent to cross examine the witnesses. It is further submitted that the evidence which has been produced by way of First Information Report, Charge-sheet were from the Investigating Officer. Hence, as provided under Section 166 sub-section (4), the learned Tribunal shall have to treat any Report of the accident forwarded under Section 159, as an application for compensation under the Motor Vehicles Act, 1988 (hereinafter referred to in short as

C/FA/2003/2023 ORDER DATED: 04/05/2023

'the M.V. Act'). It is therefore, submitted that the learned Tribunal should have granted the compensation amount and should have appreciated the Affidavit and the documents which have been supplied by the Police, or in absence, or, even if at all there was any doubt with regard to the documentary evidence, the learned Tribunal could have called for the information under Form 54 of the Central Motor Vehicles Act, 1988.

4. Learned Advocate for the appellants further submits that following the decision of the Hon'ble Apex Court in the case of Jai Prakash v. National Insurance Company Limited and Others reported in 2010 ACJ 455 could have passed the judgment and award. It is also submitted that it is not a case where no evidence has been provided by the claimant or that the claimant had not remained vigilant in providing the evidence. It is further submitted that the written arguments from the claimants were produced at Exhibit 49 and by an order dated 30.03.2019, Exhibit 24 was allowed, and the respondent No.3 - Manager, Shriram Transport Finance Company Limited,

C/FA/2003/2023 ORDER DATED: 04/05/2023

Choriayali, Surat was also ordered to be joined as party respondent. Thus, it is submitted that Shriram Transport Finance Company Limited Shree Ram Transport is on record.

5. Having heard learned Advocate for the appellants, perused the referred documents of the case. The learned Tribunal has failed to keep in mind the provision of Section 166(4) of the M.V. Act where any Report of the accident forwarded is to be treated as an application for compensation. The documents relied upon by the claimants were supplied by the Investigating Agency. There was no reason for the learned Tribunal not to believe the same and this being a fatal case, there was no requirement or necessity to produce any further evidence.

6. The learned Tribunal could have called for the Information under Form 54 of the Central Motor Vehicles Act, and should have granted the compensation and could have decided the case accordingly. No Tribunal can dismiss the claim petition without deciding the case on merits. Thus, keeping in mind the ratio as laid down in the

C/FA/2003/2023 ORDER DATED: 04/05/2023

referred decision of Jai Prakash (supra), the impugned order dated 29.01.2020 passed by the learned Motor Accident Claims Tribunal (Main), Bhavnagar in M.A.C.P. No.237 of 2014 is quashed and set aside. M.A.C.P. No.237 of 2014 is ordered to be restored to its original file of the learned Tribunal. An opportunity be granted to all the parties to produce evidence and further, to the respondent to cross examine the claimant/s. The matter be decided on merits. The above exercise be completed within a period of three months from the date of receipt of writ of the order of this Court.

7. The Appeal is allowed to the above extent. Direct Service is permitted.

Sd/-

(GITA GOPI, J) CAROLINE