Gujarat High Court

Jamnadas Dhanubhai Patel vs Yogeshbhai Amubhai Ghelani on 4 September, 2023

Bench: Ashutosh Shastri

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      C/FA/2349/2010                                 JUDGMENT DATED: 04/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                       R/FIRST APPEAL NO. 2349 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI                                   Sd/-

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1      Whether Reporters of Local Papers may be allowed to                 No
       see the judgment ?
2      To be referred to the Reporter or not ?                             No
3      Whether their Lordships wish to see the fair copy of                No
       the judgment ?
4      Whether this case involves a substantial question of                No
       law as to the interpretation of the Constitution of India
       or any order made thereunder ?

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                       JAMNADAS DHANUBHAI PATEL
                                 Versus
                  YOGESHBHAI AMUBHAI GHELANI & 2 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Appellant(s) No. 1
MR AKSHAY A VAKIL(5473) for the Defendant(s) No. 2,3
MR DIGANT M POPAT(5385) for the Defendant(s) No. 1
MR MANOJ N POPAT(671) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                              Date : 04/09/2023

                              ORAL JUDGMENT

[1] By way of present First Appeal under Section 96 of the

Civil Procedure Code, a challenge is made to decision dated

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01.02.2010 passed by the learned 2nd Additional Civil Judge,

Jamnagar whereby the suit proceedings i.e. Special Civil Suit

No.142 of 1993 - Regular Civil Suit No.328 of 1994 came to be

partly allowed and the opponents are jointly and severally held

responsible for payment of Rs.15,000/- to both the plaintiffs with

simple interest at the rate of 9% with effect from 24.08.1992

and it is this order is made the subject matter of present appeal.

[2] The brief background of the facts are that on 24.08.1992

at about 10.45 p.m. both these plaintiffs, who are closely

related, were on their vehicle Luna near Old Railway Station

and with a view to pouring the petrol, went to the Petrol Pump

held by original defendants. At that juncture, on account of

sudden blast in the machine of Petrol Pump, both these

plaintiffs have sustained serious injuries and were shifted to

Irvin Hospital, Jamnagar. The original plaintiff - Jamnadas

Dhanubhai Patel sustained serious injuries all over the body and

also received serious injuries in the eyes. This plaintiff could

not get any respite and as such was shifted to Eye Hospital of

Dr. Nagpal at Ahmedabad and wherein after prolonged

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treatment, this plaintiff had lost vision to the extent of 100%.

On account of this serious injuries, plaintiff - Jamnadas

Dhanubhai Patel had not only incurred heavy expenditure of

medical treatment, but has sustained several damages. Similar

is the case with respect to other plaintiff and as such both these

plaintiffs have filed suit proceedings for the purpose of seeking

compensation from the opponents under the various heads. The

suits have been registered as Special Civil Suit No.142 of 1993

whereas another as Regular Civil Suit No.328 of 1994 since

both the suits are related to very same controversy, arisen on

account of the same incident, by way of passing an order of

consolidation, both the suits were adjudicated together and

after considering the submissions and the record, the learned

2nd Additional Civil Judge, Jamnagar was pleased to partly allow

these suits vide judgment and order dated 01.02.2010.

[3] The present First Appeal, challenging the said judgment

and order, appears to have been admitted way back on

25.11.2010 and after receiving the record and proceedings, the

same has come up for consideration finally before this Court

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wherein today, upon the request of both the learned advocates,

present First Appeal is taken up for hearing.

[4] Mr. Dipak R. Dave, learned advocate appearing for the

appellant has vehemently contended that while passing the

impugned judgment and order, the learned Court below has not

properly appreciated the material and on the contrary, has

arrived at a conclusion as if the plaintiff has not produced any

documentary evidence nor laid any material to substantiate the

claim and as such, while passing the order since the Court

below has not considered the material which has already been

produced on record, the order suffers from vice of non-

application of mind and as such perverse. Accordingly, the

same is required to be corrected by quashing and aside the

order.

[4.1] Mr. Dave, learned advocate has further submitted that the

observations which are made in the order that plaintiffs have

not produced any documentary evidence nor has established the

material on record during the course of deposition, the same

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finding and the observations are quite in conflict with the

relevant record and for that purpose, Mr. Dave, learned

advocate has drawn the attention of this Court to the record and

proceedings and after bringing it to the notice of the Court such

record and proceedings, a contention is reiterated that the

order is suffering from vice of non-application of mind. It has

been submitted that, on the contrary, on account of such serious

incident, the negligence is apparently established, but be that as

it may, even if that be so, the occurrence of the incident at the

Petrol Pump held by opponent have not been in dispute and

injury which has been sustained is also evident from the record,

which is reflecting.

[4.2] It has been submitted that during the course of

adjudication of the suits, one of Doctors was also summoned as

a witness, and the said Doctor, Mr. D.D.Parmar, has also led

some documentary evidence in the original form. This material

is very much a forming part of the record and the same having

not been perused and held by the Court below that the appellant

has not laid any material. This finding is absolutely erroneous

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and on this count alone, the order requires to be quashed and

set aside.

[4.3] To further elaborate his submission, Mr. Dave, learned

advocate has drawn the attention of the Court to an application

for witness summons at Exh.24, reflecting at page 149 of paper

book compilation, and another Exh. i.e. Exh.27 which is clearly

reflecting that the witness Doctor D.D.Parmar has produced not

only the injury certificate of the plaintiff, but has also produced

in origin the medical papers including a X-Ray report and this

material is very much forming part of the record of the case.

[4.4] In addition thereto, Mr. Dave, learned advocate has

pointed out the deposition of one of plaintiffs, i.e. Jamnadas

Dhanubhai Patel at Exh. 44, in which also, not only in

examination-in-chief these documents have been referred to, but

in cross-examination also, the same has not been countenance

by the opponent. So when such material in the original form is

very much available on record, the observation made by the

learned Judge as if nothing is produced nor established by the

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plaintiff is nothing but a clear example of non-application of

mind and this is a classic case of perversity reflecting in an

order and as such the same is required to be quashed and set

aside.

[5] As against this, Mr. Manoj N. Popat, learned advocate

appearing on behalf of the opponent No.1 as well Mr. Akshay A.

Vakil, learned advocate appearing for opponent Nos.2 & 3 have

tried to made an attempt that the manner in which the

documents are required to be established have not been

established so far and that has led the learned Judge to pass an

order and as such in the background of this fact, no error can be

found by the Court about the exercise which has been

undertaken by the learned Judge. Since the original plaintiffs

have not established their case in the manner in which it is to be

established, the non-reference of such material would not vitiate

the entire order, and as such, the order passed by the learned

Judge requires no interference.

[5.1] In addition to that, both the learned advocates, in chorus,

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have also submitted that on the basis of material, on the

contrary, an amount of Rs.15,000/- has already been awarded in

addition to 9% simple interest and that would be sufficient

enough for the original plaintiff and as such in the absence of

any perversity or material irregularity, no interference be made

in the interest of justice. However, at the fag end of the

submissions, both the learned advocates on the basis of material

which is reflecting on the record have candidly submitted that

if the Court is inclined to remand the matter back for fresh

consideration there may not be any much reservation and as

such with the broad consensus of learned advocates appearing

on behalf of both the sides, a request is made to dispose of

present First Appeal.

[6] Having heard learned advocates appearing for the parties

and having gone through the material on record, the

observations which have been made by the learned Judge to the

effect that the original plaintiffs have not placed any material to

substantiate the claim or to establish the injury which has taken

place and further in paragraph 13 observed that though

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document might have been produced in the form of mark but

the same having not been established, do not require

acceptance and cannot be treated as evidence. These

observations basically which have been made to pass an order if

to be considered in the light of material, which have been

reflecting on record and proceedings, this Court is of the clear

opinion that order suffers from the vice of non-application of

mind as well as perversity. The record and proceedings which

have been called for and perused the same in the context of

observation which has been made, it appears that an application

for witness summons along with production of documents have

been given in specific form and the said application has been

registered at Exh.24 which is reflecting on page 149 of the

paper book compilation. The said application dated 30.12.1997

has been entertained by the learned trial Judge and by issuance

of summons, in that context, Dr. D. D. Parmar has stood as a

witness and produced the original document, the same

reflecting at Exh.27. A perusal of the said Exh.27 would

indicate that the said doctor has produced in original form the

injuries certificates of the plaintiff as well as all relevant papers

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indicating the treatment of plaintiff and also produced the

original X-Ray Film which material has been taken on record

and after receiving the copy, an endorsement is also made by

the learned advocate appearing on behalf of the deponent "as

recorded" .

[7] In addition thereto, the deposition which has been

recorded at Exh.44 of one of the plaintiffs - Jamnadas Dhanubhai

Patel and a perusal of the said deposition would clearly indicate

that not only the rigorous medical treatment is taken by him at

Irvin Hospital, Jamnagar, but also Dr. Jayesh Tahkore at

Ahmedabad and M. M. Medical Center at Mumbai as well as

Civil Hospital were also approached for seeking medical

treatment. For approximately six months period, Eye Surgeon

Dr. Nagpal at Ahmedabad was also treating the present one of

the appellants, but despite such rigorous medical treatment, the

plaintiff has not been able to see anything and there is a 100%

loss in the eyes. Now these documents, related to these

treatment, are also are very much referred to in the deposition

of one of the plaintiffs and in cross-examination also, the same

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has also been touched. If that be so, the conclusion arrived at

by the Court below as if nothing is produced by the appellant

nor established is quite erroneous perverse to the record and

this ground alone is sufficient enough to quash and set aside the

impugned order, as a consequence of it, the fresh consideration

deserves in the interest of justice.

[8] Apart from that, a perusal of the cross-examination of

another witness at Exh.129, reflecting on page 445 onward also,

would clearly indicating the factum of injuries sustained by

these original plaintiffs - present appellants and as such by no

stretch of imagination, it is possible to accept the conclusion

arrived at by the Court below.

[9] Apart from this, the observation made by the learned trial

Judge about fixing and ascertaining liability of defendants inter

se at one brief in the order, it has been submitted that the

defendant No.1 is merely a dealer, and every monitoring of the

units at Petrol Pump is the responsibility of defendant Nos. 2

and 3 and as such defendant No.1 is not responsible. But

thereafter, if gradual process which has been reflecting from

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later part of the judgment, it appears that the learned trial

Judge has submitted that all the opponents are responsible for

the amount of Rs.15,000/- which is awarded in lieu of original

claim, as indicated above. Further, if this be the reason of the

learned Judge that plaintiffs have not produced anything nor

established any such injuries and compensation claim then in

that case, there is absolutely no reason visible about awarding

even of Rs.15,000/- as well. If the view taken by the learned

trial Judge to be accepted that this awarding paltry amount of

Rs.15,000/- also is not just and proper. However, when it has

been clearly demonstrated by the learned advocate for the

appellant on the basis of material on record that the fact of

incident at Petrol Pump is not in dispute, the factum of

sustaining of injuries of these plaintiffs at the incident has not

been disputed and the record indicates that several original

medical certificates as well as medical treatment papers are

produced by the Doctor who has been call specifically as a

witness, this Court is of the clear opinion that order in question

is not sustainable in the eye of law and as such the same is

required to be quashed and set aside. However, considering the

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material which has not been discussed, though available on

record, instead of examining the same at this stage, the Court

deems it proper to remand the matter back for fresh

consideration by the competent Court. As such, a strong case

for remanding the case is made by the appellant to that extent.

As a result of this, the Court is of the clear opinion that the

following order would meet the ends of justice:

(i) The impugned dated 01.02.2010 passed by the

learned 2nd Additional Civil Judge, Jamnagar whereby

the suit proceedings i.e. Special Civil Suit No.142 of

1993 - Regular Civil Suit No.328 of 1994 is quashed

and set aside with a consequential direction to re-

consider and re-adjudicate the suits by the Court

concerned after extending fresh opportunity to both

the parties and on the basis of material on record, an

appropriate decision be taken afresh in accordance

with law after assigning proper reasons.

(ii) Since the issue about this compensation is

churning in the litigation since long and looking to the

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advance age of both the original plaintiffs, Court is of

the clear opinion that a fresh consideration should be

made in a time bound schedule and as such the

concerned Court shall try the case afresh in accordance

with law as earlier as possible preferably within a

period of SIX MONTHS from the date of certified copy

of this order .

(iii) It is made clear that since the Court has

remanded the matter back for fresh consideration on

the basis of material which is existing on record, this

Court has refrained itself from expressing any opinion

on merit and the same shall be decided afresh

independently in accordance with law.