Gujarat High Court

Chhaganlal Marwadi(Decd) Thr'Heirs vs The Gujarat State Road Transport ... on 2 August, 2024

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     C/FA/1723/2008                               JUDGMENT DATED: 02/08/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1723 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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           CHHAGANLAL MARWADI(DECD) THR'HEIRS & ORS.
                             Versus
         THE GUJARAT STATE ROAD TRANSPORT CORPORATION
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Appearance:
MR SANDIP C SHAH(792) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MR C S SHUKLA(7549) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 02/08/2024

                             ORAL JUDGMENT

1. The present appeal is filed by the appellant - Insurance

Company under Section 173 of the Motor Vehicles Act, being

aggrieved by and dissatisfied with the judgment and award

dated 26.8.2005 passed by the Presiding Officer, Fast Track

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Court No.5, Ahmedabad (Rural) in Motor Accident Claim

Petition No.1841 of 2000, by which, the Tribunal has

dismissed the claim petition of the claimants.

2. The facts of the present appeal are as under :

2.1 The claimants filed the claim petition stating that the

applicant died on 30.9.1995 when he was lifting the goods

from the S.T.bus stand at Gita Mandir, Ahmedabad.

Therefore, the claim petition was filed claiming compensation.

2.2 On service of notice, the opponent-S.T.Corporation filed

the written statement. The issues were framed by the

Tribunal. Oral as well as documentary evidence were led

before the Tribunal. After hearing the submissions made by

the rival parties, the Tribunal has dismissed the claim

petition.

2.3 Hence, the claimants filed this appeal before this

Court.

3. Heard learned advocates for the parties.

3.1 Learned advocate for the claimants-appellants has

drawn my attention to the findings of the learned Tribunal,

more particularly, paragraphs 6 and 7 and also towards the

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paper book produced on the record, more particularly,

paragraph no.9 onwards of the pleadings in claim petition

and also to some documents whereby it is stated that the

S.T.Corporation has given immediate assistance to the

claimants and some amount is paid on the death of the

deceased from the welfare fund of the S.T.Corporation and

the receipt to that effect by the claimants is also produced

on record stating that he has received Rs.500/- towards

immediate relief from S.T.corporation. He submitted that the

other documents and correspondence also indicates that the

deceased was working as Hamaal with ST corporation and

badge is also mentioned.

3.2 Learned advocate for the claimants-appellants

referred to the deposition recorded on behalf of the claimants

of Taraben Exh.17 and the deposition of the employee of ST

corporation at Exh.20-Naresh Himmatbhai and submitted that

it clearly indicates that the incident has taken place in the

ST corporation premises and it has occurred due to use of

the ST bus as some parcel fell on the head of the deceased.

There is sufficient material available on the record which

indicates that the deceased was working as Hamaal with the

ST corporation. He submitted that, however, the learned

Tribunal has dealt with the said issue in a very hyper

technical manner and against the object of the provisions of

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the MV Act where strict proof is not required to be produced

by the claimants. He, therefore, submitted that this appeal be

allowed.

3.3 Per contra, learned advocate for the respondent- GSRTC has vehemently contested this petition mainly relying

on the fact that there is no bus number coming on the

record as there is no FIR or panchanama registered pursuant

to the said accident and therefore merely some amount is

paid to the claimants, it does not give any cause of action to

the claimants to file claim petition in absence of any

material indicating that the accident has occurred due to the

use of motor vehicle and ST corporation is not liable to pay

the compensation under the provisions of MV Act. He,

therefore, submitted that this appeal be dismissed as the

learned Tribunal has rightly dismissed the claim petition.

4. I have considered the submissions made by the

respective parties and perused the material produced on the

record. I have gone through the impugned judgment and

award passed by the Tribunal. I have also considered the

pleadings of the parties before the Tribunal.

5. It is true that there is no FIR or panchanama

available on the record or any other material which indicates

that the accident has taken place in the premises of the ST

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corporation. However, the fact remains that the deceased was

working as Hamaal at the time of accident and the death is

caused due to the injury received by the deceased as parcel

fell on the head of the deceased at the time of climbing on

the ST bus. These aspects clearly reach to the inference that

the accident has occurred at the ST bus stand and at the

time of climbing the ST bus, the deceased has received injury

as he was working as Hamaal.

6. Provisions of Sections 166 read with 167 and 168

of the MV Act which read as under:

"166. Application for compensation.--(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the

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deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. [(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] [(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.]

167. Option regarding claims for compensation in certain cases.--Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923), where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.

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168. Award of the Claims Tribunal.--(1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:

Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

(3) When an award is made under this section, the person who is required to pay any amount in terms of such award

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shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."

7. Considering the above, I am of the view that the

learned Tribunal has taken hyper technical view in the

matter that the fact remains that there is no FIR or

panchanama or inquest panchanama of the said incident but when there is sufficient material to connect the respondent-

ST corporation as the said incident has taken in the place

owned by ST corporation and also during the use of motor

vehicle i.e. ST bus at the time of loading and unloading

parcels on the top of the ST bus, the view taken by the

learned Tribunal is very hyper technical.

8. One of the contentions raised by the learned

advocate for the ST corporation is that even assuming for the

sake of argument that the deceased was working with the ST

corporation, then at the best, he could have filed the

proceeding under the Workmens' Compensation Act and not

under the MV Act.

9. Considering the above provisions of the MV Act,

the object of the MV Act and the various judgments of the

Hon'ble Apex Court whereby it is observed that the Court

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should try to give proper meaning to the provisions of the

MV Act in such cases filed under the MV Act and such

claim petitions, normally, should not be rejected by taking

hyper technical view and if sufficient material is available on

the record of the learned Tribunal or Court, the learned

Tribunal shall consider the such claim petitions on its own

merits instead of dismissing the such claim petitions by

taking hyper technical view and by asking for strict proof

about the cause of the accident and involvement of the

vehicle.

10. The learned Tribunal has observed in paragraph

nos.6 and 7 as under:

"6. That burden to prove this issue is now entirely lying upon the applicants' side, however I have read the contents of the claim petition, contents of the reply filed by the opponent, and the contents of the documentary evidence submitted from applicant's side. I have also heard the arguments from the learned advocate of both the sides while resisting the claim petition on hand. The learned advocate for the applicant has argued out the subject matter just similarly which is mentioned in the plaint of this petition, saying that deceased Chhaganbhai was working as a labour at S.T.Bus Stand at Gitamandir and thus while lifting the goods from the S.T.Bus of the opponent he had succumbed and die on 30/9/95 and as he was hale and hearty and as

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he was non addict person and he was the only person who was earning bread and butter for the applicants and as the applicants have lost their economical source due to the death of said deceased Chhaganbhai, the applicants have filed this claim petition seeking compensation to the tune of Rs.4,00,000/-. Now here at this very juncture, it is very pertinent to note that though the applicants have submitted that deceased Chhaganbhai had died in an accident on 30/9/95 at Gitamandir S.T.Bus Stand while lifting the goods from the S.T.Bus of the opponent, they have not at all submitted cogent, certain and relevant evidence to prove the said fact before the Tribunal. And while making attempt to prove the said fact, the learned advocate for the applicant has merely kept reliance on the strength of the petition on hand. By and by the applicant has also deposed on oath at Exh.17 saying that her son was succumbed to death on 30/9/95 while working as coolie/labourer with the opponents S.T.Bus at Gitamandir and when she was crosse xamined from the opponents side no fruitful substance came out to prove this very fact within the gamut of law. And from the opponent's side at Exh.20 their witness is examined on oath of one Shri Nareshkumar Mimmatlal Dave, who is senior clerk serving with the opponent since last 27 years. He has deposed on oath that it is true that deceased Chhaganbhai was killed in mishap on 30/9/95 while lifting the goods from the S.T.Bus of the opponent and he has further deposed that deceased Chhaganbhai succumbed to death only because

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of his fault, carelessness, and negligence too. He further deposed that upon considering the precarious position of the deceased and his relatives they have given Rs.1000/- as a help at this critical juncture. In his cross examination he has deposed that though the deceased Chhaganbhai was working at S.T.Bus Stand of the opponents as a coolie/labourer, they are least-concerned with his income and also about his activities. He further deposed that they have helped him only because of the humanity to then.

7. From the applicants' side vide Exh.11 death certificate is produced pertaining to death of said deceased Chhaganbhai and vide Exh.12 another xerox copy of death certificate of the deceased is seen produced. Vide Exh.13 xerox copy of a certificate is seen produced showing that deceased was paid Rs.1000/- from the opponent side for his treatment. Exh.14 is a xerox copy of the certificate is produced while giving help tot he deceased Chhaganbhai of Rs.500/- for his treatment. Exh.15 is a copy of the letter is produced by the applicants issued from the opponent side. Exh.16 is a copy of letter dtd.4/10/95 is produced written by the opponents side. While perusing the contents of all these documents it is seen that at no where it is shown by the opponents that deceased Chhaganbhai was their employee and it is seen that whatever they have done is done while considering the ethics of the humanity. Not only that but no F.I.R./Complan, Panchanana, Inquest Report, is filed for the mishap of dated 30/9/95 by anybody. Here at this juncture, I

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must say that the real test is an intention of the party and it can be gathered from the records which are made available on hand but while taking this test the applicants have entirely failed to prove that deceased Chhaganbhai was the legally employed of the opponents, and/or that he was valid worker of the opponents, and with this fact it is proved that it is the deceased Chhaganbhai who himself is responsible for his death at the relevant point of time. More over no number of the S.T.Bus is also shown by the applicants in their petition while seeking compensation and ST Bus was stationed at Depot No.4. And, therefore, while considering all the legal hurdles and certain substances of this case, I come to the conclusion that the applicants have no miserably failed to prove and to establish their case before the Tribunal within the gamut of law, and thus on the strength of these facts and circumstances, the applicants have not proved that deceased Chhaganbhai was killed in an accident on 30/9/95 because of the carelessness and negligence of the opponents, hence I answer issue No.1 in negative."

11. In the facts and circumstances of the present case,

the learned Tribunal has committed error in giving the above

findings and taking a hyper technical view in the matter.

The learned Tribunal ought to have considered the

documentary evidence as well as the deposition of the parties

in proper context and thereafter decide the claim petition on

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merits, instead of rejecting the claim petition on hyper

technical grounds.

12. Considering the totality of the facts and