Gujarat High Court
Gujarat State Road Transport ... vs Jayendra Mansukhlal Nimavat on 18 April, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 129 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SECOND APPEAL NO. 129 of 2024
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GUJARAT STATE ROAD TRANSPORT CORPORATION
Versus
JAYENDRA MANSUKHLAL NIMAVAT
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Appearance:
MR RUSHABH H MUNSHAW(8958) for the Appellant(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/04/2024
ORAL ORDER
1. The present Second Appeal is filed by the appellant
- original defendant under the provisions of Section 100
of the Civil Procedure Code, 1908 (hereinafter referred to
as "the C.P.C.") by challenging the judgment and order
dated 01.08.2023 passed by the learned Additional
District Judge, Porbandar in Regular Civil Appeal No.18
of 2022 (hereinafter referred to as 'appellate court') and
the judgment and decree dated 31.08.2021 passed in
Regular Civil Suit No.164 of 2017 by the learned Addl.
Senior Civil Judge, Porbandar (hereinafter referred to
learned trial court').
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2. Brief facts of the case are as such that the plaintiff
was working as a driver since 21 years in Gujarat State
Road Transport Corporation, Ahmedabad as well as
Junagadh. Due to heart problem, nowadays, the plaintiff
is working as a security guard instead of driver. After
primary treatment at Porbandar, the plaintiff takes heart
treatment at Ahmedabad namely Krishna Hospital
Ahmedabad, which is recommended by Government of
Gujarat. So, he is entitled to get reimbursement for the
medical treatment. Furthermore, after taking some money
from relatives, he spent some expenses i.e. Rs.1,65,447/-
behind his treatment in the saied Krishna Hospital.
Additionally, Krishna Hospital made some change
regarding its name like Krishna Shelby Hospital instead
of Krishna Hospital. Due to that changes in the name,
defendants declined to reimburse the said amount. Hence,
suit is filed, which was allowed and subsequently, the
said order dated 31.08.2021 is challenged before the
lower appellate court by the original defendant No.1 -
corporation, which was dismissed vide order dated
01.08.2023. Being aggrieved by the said order dated
01.08.2023, the present Second Appeal has been
preferred.
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3. Heard Mr. Rushabh H. Munshaw, the learned
counsel for the appellant at length for admission.
4.1 Mr. Rushabh H. Munshaw, the learned counsel for
the appellant, has submitted that both the courts below
have committed gross error of law by not properly
appreciating the fact that the plaintiff has undergone
treatment at Shalby Hospital, which is not recognized or
approved by the appellant - Gujarat State Road
Transport Corporation. Consequently, he has submitted
that the incurred treatment expenses cannot be
reimbursed. Furthermore, he has submitted that the both
the courts below have erred in awarding an amount
exceeding the coverage specified in the policy, which is
not in accordance with law. Hence, he has submitted
that both the courts below have found concurrently
against the present appellant, which is not in accordance
with law and the same amounts to miscarriage of
justice. Furthermore, he has submitted that the both the
courts below have committed substantial error of law by
ignoring the settled principle that Government Resolution/
Policy would not automatically apply to the appellant -
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corporation. Since the appellant - corporation is a
separate statutory body, therefore, he has submitted that
in view of the above-stated submissions, he is having
good ground for admission of the present Second Appeal.
4.2 He has drawn my attention towards the suggested
substantial question of law as framed in the memo of
this appeal, as under:
A.) Whether both the Ld. Trial Court as well as the Ld.
Appellate Court have committed substantial error of law
by misreading and misinterpreting the oral as well as
the documentary evidence on record.
B.) Whether both the Ld. Trial Court as well as the Ld.
Appellate Court have committed substantial error of law
by granting medical reimbursement to the Respondent
Original Defendant even though the same is contrary to
the Policy dated 20.12.2005 of the Appellant -
Corporation with regard to the grant of Medical
Reimbursement.
C.) Whether both the Ld. Trial Court as well as the Ld.
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Appellate Court have committed substantial error of law
by ignoring the settled legal principle that a Government
Resolution/Policy would not automatically apply to the
Appellant - Corporation since Appellant - Corporation is
a separate statutory body having its own Rules and
Policies.
D.) Whether both the Ld. Trial Court as well as the Ld.
Appellate Court have committed substantial error of law
by coming to the conclusion that Krishna Hospital and
Krishna Shalby hospital are one and the same entity
and hence would be included in the Policy of the
Corporation even though the policy dated 20.12.2005 of
the Appellant - Corporation only includes Krishna
Hospital.
E.) Whether both the Ld. Trial Court as well as the Ld.
Appellate Court have committed substantial error of law
by not adhering to the principle of preponderance of
probability.
F.) Whether the appellate court has committed
substantial error of law in in not framing points for
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determination as required under the provisions of Order
41 Rule 31 of the Code of Civil Procedure, 1908.
5.1 I have considered the submissions made at the bar
by the learned counsel for the appellant and perused the
materials available on record. Additionally, I have
perused the judgments passed by both the courts below
and materials produced by way of paper-book. It
transpires that the trial court has considered every
aspect of the matter in detail. The trial court has also
considered the following documentary evidence:
"3. Now, to prove this issues and in support of the
pleadings, the plaintiff had adduced oral and
documentary evidence on the record.
Sr.No. Exh. Description
1. 13 Oral evidence of plaintiff.
2. 16 A copy of circular dated 20/12/15
3. 17 A copy of circular dated 20/11/15.
4. 18 A copy of Shelby hospital letter dated 1/4/17
5. 19 A copy of Template of Krishna Shelby Hospital
6. 20 A copy of book of Maa Amrutam Yojana
7. 21 A copy of letter dated 29/9/16
8. 22 A copy of rejection medical bill
9. 23 A copy of legal notice
10. 24 A copy of taking report of Postal Department
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11. 25 Circular of Government
12. 26 Circular dated 20/12/2005 by defendants
13. 27 Copies of medical bills
14. 32 Closing pursis by plaintiff
4. Against this, to prove this issues and in support of
the pleadings, the defendants had adduced oral evidence
on the record.
Sr.No. Exh. Description
1. 42. A copy of letter of administrative.
2. 43. A copy of labor settlement booklet
3. 44. A copy of order
4. 45. A copy of circular of treatment
5. 46. Closing pursis by defendants
5.2 Subsequently, the trial court has framed various
issues below Exh.12, more particularly, specific issues,
whereby issue Nos.4 and 7 are regarding the entitlement
of the plaintiff, who has taken treatment at Shelby
Hospital, which is not in the approved list of the S.T.
Corporation, instead, Krishan Hospital is approved by the
S.T. Corporation, which is connected to Shelby Hospital.
5.3 The trial court has considered the documentary as
well as the oral evidence and referred to the provisions
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of Sections 101 & 102 of the Evidence Act, as under:
"Section 101 in The Indian Evidence Act, 1872:-
101. Burden of proof.
Whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of facts which
he asserts, must prove that those facts exist. When a
person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.
Illustrations
(a) A desires a Court to give judgment that B shall be
punished for a crime which A says B has committed. A
must prove that B has committed the crime.
(b) A desires a Court to give judgement that he is entitled
to certain land in the possession of B, by reason of facts
which he asserts and which B denies, to be true.
A must prove the existence of those facts.
Section 102 in The Indian Evidence Act, 1872:-
102. On whom burden of proof lies:-
The burden of proof in a suit or proceeding lies on that
person who would fail if no evidence at all were given on
either side.
Illustrations
(a) A sues B for land of which B is in possession, and
which, as A asserts, was left to A by the will of C, B's
father. If no evidence were given on either side, B would be
entitled to retain his possession. Therefore the burden of
proof is on A.
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(b) A sues B for money due on a bond. The execution of
the bond is admitted, but B says that it was obtained by
fraud, which A denies. If no evidence were given on either
side. A would succeed, as the bond is not disputed and the
fraud is not proved.
Therefore the burden of proof is on B."
5.4 After considering the deposition of the plaintiff at
Exh.13 and also taking into account the documentary
evidence at Exh.18, the trial court has come to the
definite conclusion by believing the case of the original
plaintiff. The trial court has also considered the circular
of the Government of Gujarat, whereby it is found that
Krishan Shalby Hospital is a valid hospital as per the
circular of the Government of Gujarat. It is undisputed
that the plaintiff, an employee of the appellant - S.T.
Corporation, underwent heart treatment at Krishna
Shelby Hospital, incurring expenses amounting to
Rs.1,65,447/-. Ample documentary and oral evidence
supports his claim. However, the appellant-corporation
rejected the claim, citing Shelby Hospital's absence from
its approved list.
5.5 I found that this aspect is properly considered by
the trial court in detail.
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5.6 Similarly, the lower appellate court has also
discussed every aspect in detail. The lower appellate
court has also considered that there is no evidence
against the deposition given by the plaintiff at Exh.18.
So whatever the plaintiff has asserted in the plaint is
proved by Exh.18. The lower appellate court has also
found from Exh.16 to 17 that Krishna Hospital is a
valid hospital for the purpose of heart treatment as per
the list of S.T. Corporation. It is also found by the lower
appellate court that from the documentary evidence vide
Exh. 22, the demand of plaintiff is rejected by the
Corporation. It also appears that the lower appellate
court has also found that Krishna Hospital is also a
Krishna Shelby Hospital and is a valid hospital as per
the circular of the Government of Gujarat. It is also
found from the record of the suit that Exh. 18, 19 are
supported by Exh. 20 as well as this document itself
speaks that the plaintiff's suit is fulfilling all the
conditions established by the circular of the Government
of Gujarat. The court has also considered that the
defendants have failed to establish their defence by
producing cogent and convincing reasons, whereby the
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plaintiff has proved his case on the test of preponderance
of probability.
5.7 Both the courts have upheld the reimbursement
amount of Rs.1,65,447/-, along with 8% p.a. towards
medical treatment for the heart ailment of the plaintiff
from the date of the suit till its realization.
5.8 I found that the concurrent findings of both the
courts below are not required to be disturbed as no
perversity or illegality is committed by both the courts
below. On the contrary, it is not proper that the
appellant - corporation is not taking care of its
employees and rejecting their claim in their difficult
times such as heart ailment, whereby the employee has
admittedly and undisputably taken the treatment from
the hospital. Merely on the hyper-technical ground that
such hospital is actually not considered as a valid
hospital by the S.T. Hospital, the appellant - corporation
has denied reimbursement. This reason is not found
proper and a just ground for rejection of such a claim.
The appellant - corporation, which is promoted by the
State Government, and in the present case, it is done by
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the Government of Gujarat, then the appellant -
corporation is also bound by the policy and circular of
the State Government on the principle. Moreover,
considering the fact that it is otherwise also the duty of
the appellant - corporation to provide necessary medical
facility to its employees and more particularly, when the
employee is facing some medical problems, the
corporation should not create any hindrance on the
hyper-technical ground in reimbursement of the amount
of the expenses incurred towards such medical treatment.
Considering all these aspects, and taking into account
the fact that both the courts below have dealt with the
subject matter by keeping in mind the pleadings of the
parties in proper context and also by appreciating the
documentary as well as oral evidence in an appropriate
manner, I found no perversity or illegality in the
findings of both the courts below as no case is made
out. No substantial question of law emerges from the
concurrent findings of fact of both the courts below.
5.9 It is required to refer the scope of Section 100 of
the Civil Procedure Code, which is as under:
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"[100. Second appeal.--(1) Save as otherwise expressly
provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High
Court from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is satisfied
that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate
decree passed ex parte.
(3) In an appeal under this section, the memorandum of
appeal shall precisely state the substantial question of law
involved in the appeal.
(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
that question.
(5) The appeal shall be heard on the question so formulated
and the respondent shall, at the hearing of the appeal, be
allowed to argue that the case does not involve such
question:
Provided that nothing in this sub-section shall be deemed to
take away or abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any other substantial
question of law, not formulated by it, if it is satisfied that
the case involves such question."
5.10 It is fruitful to refer the judgment in the case
of Gurbachan Singh (Dead) Through Lrs Gurcharan
Singh (Dead) Through Lrs and Others. reported in 2023
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SCC Online SC 875 paragraphs 7, 14 and 15 which are
reproduced as under:
"7. The parameters of an appeal under Section 100, CPC
passing muster are well established. The section itself
dictates that such an appeal shall only be maintainable
when the case involves a substantial question of law or that
the appellate decree has been passed ex parte. the latter,
obviously is not the case. This court has, in a multitude of
decisions, expounded on what may be termed as a
substantial question of law to satisfy the requirements of
section 100. In Nazir Mohamed v. J. Kamala (2- Judge
Bench), it was observed:--
"27. In HeroVinoth v. Seshammal [HeroVinoth v.
Seshammal, (2006) 5 SCC 545], this Court referred to
and relied upon Chunilal V. Mehta and Sons Ltd.
[Chunilal V. Mehta & Sons Ltd. v. Century Spg. &
Mfg. Co. Ltd., AIR 1962 SC 1314] and other
judgments and summarised the tests to find out
whether a given set of questions of law were mere
questions of law or substantial questions of law. The
relevant paragraphs of the judgment of this Court in
Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC
545] are set out hereinbelow : (SCC p. 554, para 21)
"21. The phrase "substantial question of law", as occurring
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in the amended Section 100 CPC is not defined in the
Code. The word substantial, as qualifying "question of law",
means-- of having substance, essential, real, of sound worth,
important or considerable. It is to be understood as
something in contradistinction with--technical, of no
substance or consequence, or academic merely. However, it is
clear that the legislature has chosen not to qualify the scope
of "substantial question of law" by suffixing the words "of
general importance" as has been done in many other
provisions such as Section 109 of the Code or Article 133(1)
(a) of the Constitution. The substantial question of law on
which a second appeal shall be heard need not necessarily
be a substantial question of law of general importance. In
Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928
SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC
172] the phrase "substantial question of law" as it was
employed in the last clause of the then existing Section 100
CPC (since omitted by the Amendment Act, 1973) came up
for consideration and their Lordships held that it did not
mean a substantial question of general importance but a
substantial question of law which was involved in the case.
In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century
Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution
Bench expressed agreement with the following view taken by
a Full Bench of the Madras High Court in Rimmalapudi
Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v.
Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad
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969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v.
Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p.
1318, para 5)
'5. ... when a question of law is fairly arguable, where there
is room for difference of opinion on it or where the Court
thought it necessary to deal with that question at some
length and discuss alternative views, then the question
would be a substantial question of law. On the other hand
if the question was practically covered by the decision of the
highest court or if the general principles to be applied in
determining the question are well settled and the only
question was of applying those principles to the particular
facts of the case it would not be a substantial question of
law.'
28. To be "substantial", a question of law must be
debatable, not previously settled by the law of the land or
any binding precedent, and must have a material bearing on
the decision of the case and/or the rights of the parties
before it, if answered either way." (Emphasis supplied)
14. As already noted above, another ground of objection
taken by the Appellant is the fact of the impugned
judgment entering into a reappreciation of evidence. While it
is true that ordinarily, in second appeal, the court must not
disturb facts established by the lower court or the first
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appellate court. However, it is also equally well recognised
that this rule is not an absolute one or in other words, it
is not a rule set in stone. In Nazir Mohamed (supra) this
Court has recognised three conditions in which a court in
such jurisdiction, may disturb findings of fact. They are:--
"(i) the courts below have ignored material evidence or acted
on no evidence; (ii) the courts have drawn wrong inferences
from proved facts by applying the law erroneously; or (iii)
the courts have wrongly cast the burden of proof. A decision
based on no evidence, does not refer only to cases where
there is a total dearth of evidence, but also refers to case,
where the evidence, taken as a whole, is not reasonably
capable of supporting the finding."
15. A Bench of three learned Judges, recently in
Balasubramanian v. M. Arockiasamy (Dead) Through LRs. ,
had referred to, with approval judgment rendered in
Ramathal v. Maruthathal (two-Judge Bench) wherein it was
observed that the restraint in interfering with questions of
fact under the jurisdiction of second appeal, is not an
absolute rule. Where the court is of the view that the
conclusions drawn by the court below do not have a basis
in the evidence led or it is of the view that the
appreciation of evidence "suffers from material irregularity"
the court will be justified in interfering with such findings."
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5.11 It is also fruitful to refer to the judgment of
the Hon'ble Apex Court in the case of Nazir Mohamed
vs J. Kamala reported in AIR 2020 SC 4321, wherein, it
is observed in paragraphs 56, 57 and 59 as under:
"56.As held by the Privy Council in Peri v. Chrishold
reported in (1907) AC 73, it cannot be disputed that a
person in possession of land in the assumed character of
owner and exercising peaceably the ordinary rights of
ownership has a perfectly good title against all the world
but the rightful owner...and if the rightful owner does not
come forward and assert his right of possession by law,
within the period prescribed by the provisions of the statute
of limitation applicable to the case, his right is forever
distinguished, and the possessory owner acquires an absolute
title.
57.The condition precedent for entertaining and deciding a
second appeal being the existence of a substantial question
of law, whenever a question is framed by the High Court,
the High Court will have to show that the question is one
of law and not just a question of facts, it also has to show
that the question is a substantial question of law.
59.When no substantial question of law is formulated, but a
Second Appeal is decided by the High Court, the judgment
of the High Court is vitiated in law, as held by this Court
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in Biswanath Ghosh v. Gobinda Ghose. Formulation of
substantial question of law is mandatory and the mere
reference to the ground mentioned in Memorandum of
Second Appeal can not satisfy the mandate of Section 100 of
the CPC."
5.12 In view of the above discussions and in
totality, I am of the opinion that no case is made out as
no substantial question of law is involved in the present
matter. This Court has very limited jurisdiction under
Section 100 of the C.P.C. and considering the above-
mentioned judgments, I am of the opinion that no error
is committed by the trial court as well as the lower
appellate court as no perversity or illegality is found
from the findings of both the courts below and, therefore,
the present appeal is required to be dismissed at the
admission stage.
6. As a result, the present Second Appeal is dismissed.
Civil Application stands disposed of accordingly.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
