Gujarat High Court

Reliance General Insurance Co. Ltd vs Mansinh Bhinsinh Bager (Gaderiya) on 8 February, 2024

Author: Gita Gopi

Bench: Gita Gopi

                                                                                        NEUTRAL CITATION




     C/SCA/2010/2024                                    ORDER DATED: 08/02/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 2010 of 2024
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 2080 of 2024
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 2083 of 2024
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 2099 of 2024

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                 RELIANCE GENERAL INSURANCE CO. LTD.
                                Versus
                  MANSINH BHINSINH BAGER (GADERIYA)
==========================================================
Appearance:
MASUMI V NANAVATY(9321) for the Petitioner(s) No. 1
MR VIBHUTI NANAVATI(513) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6,7
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 08/02/2024

                            COMMON ORAL ORDER

1. Learned advocate Mr. Tirth Nayak states of having

instructions to appear on behalf of the original

claimants. Let his Vakalatnama be accepted.

2. Learned advocate Mr. Vibhuti Nanavati for the

petitioner states that common order below Exh.154

was passed in MACPs no.707, 708, 734 and 735/2011

which were the applications given by the insurance

company - opponent no.3 making a prayer to join

driver Mansinh Bhinsinh Bajar (Gaderiya) as

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opponent and a prayer was also made to issue

summons to Investigating Officer - Anopsinh

Ajitsinh Rajput. Advocate Mr. Nanavati submitted

that both the prayers were rejected on 24.1.2024

by MACT (Aux), City Civil Court, Ahmedabad.

3. Referring to the common judgment of this Court

dated 27.9.2023 passed in First Appeals no.351 to

354 of 2023, Advocate Mr. Nanavati submitted that

the appeals were raised by the claimants

challenging the common judgment and award dated

21.11.2022 passed in MACPs mentioned hereinbefore

on the ground that the learned Tribunal has erred

in holding the driver of Indica car negligent for

the vehicular accident and that the negligence

aspect is not considered in accordance to the

proof and on that basis, challenge was given to

the Tribunal's judgment stating to be incorrect,

improper, unjust and without any conclusive proof

attributing negligence on the part of the car

driver. It is further stated that on hearing both

the sides, the judgment and award was quashed and

all the MACPs were ordered to be restored on the

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file of the learned Tribunal to decide the matter

on merits and further a direction was given to

grant opportunity to all the parties to provide

further evidence on record and the learned

Tribunal was directed to consider the further

evidence that may be provided by the parties.

Advocate Mr. Nanavati submitted that since the

driver was deleted from one matter being MACP

no.733/2011, prayer was made to rejoin him since

he is opponent in other three claim petitions.

4. Advocate Mr. Nanavati further submitted that a

prayer was made for issuance of the summons to the

Investigating Officer, since earlier when he was

examined as witness no.1 on behalf of opponent

no.3, Investigating Officer had not brought the

original final report nor had brought the FIR.

Advocate Mr. Nanavati submitted that now in the

change circumstances of the matter being remanded

back for reconsideration on the negligence aspect,

copy of the final report and the FIR along with

the further evidence of the witness would be

necessary, to be recorded as the original judgment

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and award was quashed only on this aspect, where

the claimants had raised a specific contention of

incorrect observation of the Tribunal contending

that the respondent no.1, truck driver had not

given a rebuttal evidence nor there was any

independent witness to prove the fact of sole

negligence of the car driver.

5. Countering the arguments and supporting the order

of the Tribunal below Exh.154, learned advocate

Mr. Tirth Nayak for the original claimants

submitted that the order below Exh.154 cannot be

subjected to challenge since the power exercised

is discretionary in nature and the discretion

exercised by the Tribunal is sound and since the

driver is already party respondent in the matter,

there was no necessity of further joining him in

all the matters and therefore, stated that the

application was rightly rejected since the

insurance company cannot be allowed to fill in the

lacuna. Advocate Mr. Nayak has relied upon the

judgment in the case of Smt. Shashi Sehdev v. Sh.

Narender Kumar Sharma passed by the High Court of

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Delhi on 6.7.2022 to submit that exercise of

powers under Article 227 of the Constitution of

India would become very limited since the Court

under such jurisdiction is not concerned much with

the correctness of the order impugned, as the

discretion is exercised by the original Court.

Thus, Mr. Nayak urged to state that since the

jurisdiction under Article 227 of the Constitution

of India does not call for the supervisory

correction, this Court should restrain itself, and

should not unsettle the order of original Court

under assumption of any such jurisdiction.

6. The matters have put to challenge the order which

has rejected the prayer, under Order 1 Rule 10 and

Order 18 Rule 17 of the Code of Civil Procedure,

1908 read with Section 151 of the Code of Civil

Procedure, 1908. The order impugned is in

connection with the Motor Accident Claim Petition

governed under the Motor Vehicles Act, 1988.

Article 227 of the Constitution of India gives

superintendence powers to the High Court over all

Courts and Tribunals throughout the territories in

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relation to which it exercises the jurisdiction.

The superintendence power of the High Court is

both administrative and judicial, but such powers

are to be exercised sparingly and only in

appropriate cases to keep the subordinate Courts

within the bounce of the authority. It is clear

that such powers of superintendence cannot be

exercised to influence subordinate judiciary to

pass any order/judgment in a particular manner.

Section 115 of the CPC gives authority to the High

Court to exercise the jurisdiction in case where

no appeal lies, where additional powers can also

be exercised when the Court/Tribunal fails to

exercise the jurisdiction so vested or have acted

in exercise of its jurisdiction illegally or with

material irregularity.

7. The order impugned is not appealable and when any

orders are brought to the notice of the Court

which stands contrary to any observation or order

made by this Court earlier, then this Court would

have all the powers to supervise such orders for

correction. It is required to be noticed that the

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application Exh.154 was moved by the insurance

company to join the driver as opponent in the

matters. All the four MACPs have been

consolidated. In all the four MACPs, driver is

respondent no.1, but in MACP no.733 of 2011, he

came to be deleted by an order below Exh.31 and

therefore, as per the record, driver is already

respondent no.1 as joined in the connected

matters. Thus, in view of this fact, the prayer of

the insurance company ought to have been allowed

since the only order which was necessary was to

revive him as opponent no.1 in MACP no.733 of

2011.

8. The judgment and award passed by the Tribunal on

21.11.2022 in MACPs no.707, 708, 734 and 735 of

2011 was challenged by the appellant by way of

filing First Appeal, where the contention with

regard to the decision of negligence was raised

and on detail observations, the judgment and award

was quashed for reconsideration. Liberty was

granted to any parties to provide further evidence

on record and the learned Tribunal was directed to

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consider the same. In the change circumstances of

the judgment and award being quashed and when the

issue of negligence was ordered to be

reconsidered, the application moved by the

insurance company for recalling the Investigating

Officer was required to be allowed. The

investigating officer, at the relevant time when

was examined before the Tribunal earlier, had

failed to produce a copy of the FIR as well as the

report.

9. The accident as has been noted had occurred

between the Indica car bearing registration no.

GJ-1 KD-6432 and a truck bearing registration no.

RJ-05 GA-6432 and after considering the negligence

aspect, all the MACPs came to be dismissed. The

complaint at Exh.62 was referred by the Tribunal

in the earlier round of proceedings. The FIR was

given by the respondent no.1, driver of the truck.

According to him, after loading the potatoes in

the truck, he was going from Agra towards

Bhavnagar. He was accompanied by Bhagwansinh

Parmaram Modi as a Conductor and when he reached

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Laxmi Highway Hotel at about 4.00 a.m., the tyre

got burst and therefore, he had parked his truck

on the side of the road opposite the hotel and

according to him, after parking his truck, when he

was changing the tyre, one Indica car came from

the side of Sirohi in rash and negligent manner,

collided with the truck and on account of the

accident, the driver and the person sitting

besides the driver of the car died, while three

persons sitting in the rear side of the Indica car

sustained grievous injuries. Respondent no.1 being

the complainant of the FIR and a driver of the

truck is a necessary party to the proceedings. The

claimant had disputed the observations of the

Tribunal. The fact has come on record that the

Investigating Officer has noted certain

statements. The summary report at Exh.127 was

produced by the insurance company. However, on the

date of examination of the Investigating Officer,

he failed to bring copy of the FIR and the report

and thus, necessary evidence could not be brought

by the insurance company on record. Now in the

changed circumstances of reappreciation of the

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evidence and when liberty has been granted, the

learned Tribunal ought to have exercised its own

power as was granted under Section 169 of the M.V.

Act, where procedure and power to the Claims

Tribunal has been laid down and in such

circumstances, where a specific direction has been

given by this Court for the Tribunal to allow the

parties to adduce further evidence, the Tribunal

ought to have exercised the power under Section

169(2) of the M.V. Act, which reads as under:-

"169(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)."

10. Thus, to the reasons given hereinabove to the

position of law, Mansinh Bhinsinh Bajar (Gaderiya)

who was earlier respondent no.1 deleted by order

below Exh.31 in MACP no.733/2011 be joined as

party respondent no.1. Since he is respondent in

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other proceedings, there would be no necessity to

again issue summons to him.

11. The prayer for recalling the Investigating

Officer-Anopsinh Ajitsinh Rajput is thus allowed.