Gujarat High Court
Decd. Keshubhai Kalubhai Barotthro' ... vs Ganpatlal Mansukhlal Decd.Through The ... on 2 April, 2025
NEUTRAL CITATION
C/FA/5321/2007 JUDGMENT DATED: 02/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5321 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
================================================================
Approved for Reporting Yes No
================================================================
DECD. KESHUBHAI KALUBHAI BAROTTHRO' HEIRS & ORS.
Versus
GANPATLAL MANSUKHLAL DECD.THROUGH THE LRS & ORS.
================================================================
Appearance:
MR P J YAGNIK(1004) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 3
================================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 02/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. P. J. Yagnik for the
appellants and learned advocate Mr. H. G. Mazmudar
for the respondent No.4. Rule could not be served
upon respondent No.3. Perused the record.
2. The challenge in the present appeal is by the original
claimants challenging the judgment and award dated
18.2.2006 passed by learned Court of Presiding
NEUTRAL CITATION
C/FA/5321/2007 JUDGMENT DATED: 02/04/2025
undefined
Officer, Fast Track Court No.3, Navrangpura,
Ahmedabad (Rural) in M.A.C.P. No.1008 of 1996.
3. The facts in brief of the case are as under:
* On 11.3.1989 at about 3:16 hours, original
claimant - Keshubhai Kalubhai Barot was travelling to
Rajkot in a Swaraj Mazda No.GRP 5626. When he
reached near Mithapur Bagodara Highway, one truck
bearing registration No.GRU-4163 came from
opposite direction in full speed and in a rash and
negligent manner dashed with the car. Devjibhai,
driver of Swaraj Mazda car was expired due to
vehicular accident and the claimant sustained
injuries and he was admitted to LG Hospital and,
thereafter for further treatment he was admitted in
Civil Hospital, Ahmedabad. The claimant sustained
injuries over left leg, right leg and sustained injuries
on eyes. The claimant also suffered dis-figuration of
face due to two teeths broken.
NEUTRAL CITATION
C/FA/5321/2007 JUDGMENT DATED: 02/04/2025
undefined
* The legal heirs of deceased filed a claim petition
for a compensation of Rs.2,30,000/- before the
learned Motor Accident Claims Tribunal,
Navrangpura, Ahmedabad (Rural). Opponents were
served with the notice of claim petition.
* Opponent Nos.1 & 3 did not appear to contest
the claim petition, however, opponent No.4 -
insurance company appeared and filed Written
Statement at Exh.29. Pending the claim petition,
original claimant namely; Keshubhai Kalubhai Barot
died naturally and the legal heirs of the deceased
were brought on record. Issues were framed.
* The widow of the deceased was examined at
Exh.82 and has produced documentary evidence
such as FIR, Panchnama and other documents in
support the claim petition and certificate of Dr. Adiya
Upadhyaya.
NEUTRAL CITATION
C/FA/5321/2007 JUDGMENT DATED: 02/04/2025
undefined
* After considering the evidence on record and
considering the submissions, learned Tribunal held
that the driver of the Swaraj Mazda was negligent to
the extent of 40% and the driver of the truck was
held negligent to the extent of 60%. Learned tribunal
partly allowed the claim petition by awarding
Rs.9,000/- (60% of Rs.15,000/-) in favour of the
claimants against the opponents with interest @
7.5% p.a. and proportionate cost from the date of
application till realisation from the opponents.
* Being aggrieved and dissatisfied with the
impugned judgment and award - the appellants have
preferred this appeal.
4. Learned advocate for the appellant has submitted
that the accident has occurred on 11.3.1989.
Pending the application, deceased died because of
severe fatal injuries. The learned tribunal has not
NEUTRAL CITATION
C/FA/5321/2007 JUDGMENT DATED: 02/04/2025
undefined
properly considered the period of hospitalization of
52 days in all. However, learned tribunal has
considered the cross examination of widow who has
stated that deceased was admitted in hospital only
for two days. It is submitted that claimants have
produced documentary evidence which supports the
contention that the victim was admitted in the
hospital and has taken treatment for 52 days.
Certificate of Dr. Upadhyaya has stated that the
victim sustained 20% disability body as a whole. It is
submitted that considering the fact that the widow
was aged about 35 years and having 3 minor
children on the date of application, lump-sum
compensation may be awarded in favour of the
claimants.
5. Per contra, learned advocate for respondent No.4 -
Insurance Company has supported the judgment and
award and submitted that learned Tribunal has
rightly considered the evidence on record and
NEUTRAL CITATION
C/FA/5321/2007 JUDGMENT DATED: 02/04/2025
undefined
awarded just and reasonable compensation. It is
further submitted that evidence which is placed on
record indicates that deceased had taken treatment
in the hospital only for two days and there is no
material on record to substantiate the contention of
the appellant that victim was admitted in the hospital
for 52 days. He has further submitted that there is no
PM report of the deceased after death. Even the
evidence which is coming on record states that the
victim had continued in his service after he sustained
injuries in the accident. Rest of the award passed by
the learned Tribunal does not require any
interference looking to the facts and circumstances
of the case.
6. I have considered the submissions canvassed by
learned advocates for the respective parties and
perused Record and Proceedings. The claim
application under the M.V. Act is benevolent
legislation. The claimants cannot be deprived off the
NEUTRAL CITATION
C/FA/5321/2007 JUDGMENT DATED: 02/04/2025
undefined
compensation merely on technical ground such as
non-proving of disability, income etc. Considering the
peculiar set of facts such as deceased was aged about
35 years of age at the relevant point of time and after
almost four years of present petition, the victim
expired and widow and three minor sons were joined
as legal representatives in the proceedings.
7. The record reveals that the claimant had sustained
injuries out of vehicular accident and has taken
treatment in the LG hospital as well as in the Limbdi
Hospital. It appears that the claimants have not been
able to establish the disability despite the fact that a
certificate of Dr. Upadhyaya was produced on record.
It also appears from the record that the driver of
insurance company of the joint tort feasors namely;
Swaraj Mazda are not joined in the claim petition.
When learned Tribunal has found driver of Swaraj
Mazda to the extent of 40% negligent, the claimants
can recover the amount from either of the owner,
NEUTRAL CITATION
C/FA/5321/2007 JUDGMENT DATED: 02/04/2025
undefined
driver and insurance company of the offending
vehicle. Considering the said fact, compensation of
Rs.9,000/- which has been awarded in favour of
claimant (60% of Rs.15,000/-) as lump-sum
compensation to be recovered from opponent No.4
with interest @ 5% p.a. from the date of application till
realisation. The respondent No.4 shall first pay the
amount of compensation to the claimant and
thereafter can recover from the owner and driver of
the Swaraj Mazda Car, if so desires.
8. For the reasons recorded hereinabove, the following
order is passed:
[A]. The present appeal is partly allowed
accordingly in above terms.
[B]. The Insurance Company is directed to
deposit the enhanced amount Rs.9,000/- with
5% p.a. interest from the date of claim petition
till its realisation before the concerned Tribunal,
NEUTRAL CITATION
C/FA/5321/2007 JUDGMENT DATED: 02/04/2025
undefined
within a period of four weeks from the date of
receipt of this order.
[C]. The Tribunal shall disburse the entire
awarded amount lying in the FDR and / or with
the Tribunal, with accrued interest thereon if
any, to the claimant, by `Account Payee
Cheque' / RTGS / NEFT', after proper
verification and after following due procedure.
[D]. While making the payment, the
Tribunal shall deduct the Courts fees, if not paid,
in accordance with the Rules.
[E]. Record & Proceedings, if any, be sent
back to the concerned Tribunal, forthwith.
(D. M. DESAI,J)
vk
