Gujarat High Court
Devabhai Dhulabhai Patel vs Damor Gokulbhai Damjibhai on 22 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1490 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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DEVABHAI DHULABHAI PATEL & ORS.
Versus
DAMOR GOKULBHAI DAMJIBHAI & ORS.
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Appearance:
MR KASHYAP R JOSHI(2133) for the Appellant(s) No. 1,2,3,4,5,6
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4
MR PUSHPADATTA VYAS(1296) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 22/04/2025
ORAL JUDGMENT
1. This appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 challenging the judgment and award / decree
dated 21.03.2011 passed in MACP No.399 of 2003 by learned
Motor Accident Claims Tribunal (Main), Bharuch.
2. Heard learned advocate Mr. Kashyap R. Joshi for the
appellants, learned advocate Mr. Palak H. Thakkar for
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respondent No.4 and learned advocate Mr. Pushpadatta Vyas for
respondent No.2. Though served, none appeared for respondent
No.3.
3. The brief facts of the case are as under:-
3.1. It is the case of claimants in the petition that on 25.02.2003
at around 1.30 p.m., deceased was coming on Suzuki
Motorcycle bearing Registration No.GJ-16-J-4320 on Bharuj-
Dahej Road near Vasedra village within the jurisdiction of
Bharuch Rural Police Station after completing his duties. A
tanker bearing Registration No.GJ-16-U-9991 being driven by
opponent No.1 came from Bharuch side. As other two vehicles
were passing nearby the said tanker in full speed, driver of the
tanker tried to take tanker on right side but as tanker was loaded
with water, he lost control over the vehicle and went on wrong
side and dashed with Suzuki Motorcycle. Resultantly, deceased
sustained injuries and succumbed on the spot. FIR was lodged
by cleaner of tanker. Legal heirs of deceased filed a clam
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petition before the learned Tribunal claiming compensation of
Rs.20,00,000/-. Though opponent Nos.1 and 3 were served with
notice of the claim petition but they did not remain present to
contest the claim application. Opponent No.2 appeared and filed
Written Statement at Exhibit-33. Opponent No.4-Insurance
Company though served did not file any written statement.
Claimant No.3 widow of deceased filed examination-in-chief at
Exhibit-45. Opponent No.2 owner of tanker has filed
examination-in-chief at Exhibit-103. Opponent No.2 examined
one witness at Exhibit-113 who is the Sarpanch of Gram
Panchyat, Vesadra. Claimants have produced FIR, copy of
additional statement of the complainant, panchnama of the scene
of accident and statements taken by police of different witnesses
and other documents in support of claim petition. After
considering the evidence and material available on record,
learned Tribunal rejected the claim application.
3.2. Being aggrieved and dissatisfied with the impugned
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judgment and order of dismissal of claim petition, appellants-
original claimants have filed present First Appeal.
4. Learned advocate for the appellant submits that deceased
was on the date of accident coming back from Dahej road to
Bharuch on motorcycle TVS Suzuki and tanker dashed with
motorcycle. Because of the accidental injuries, deceased
succumbed. The cleaner of the tanker lodged FIR on 25.02.2003
but did not mention the involvement of motorcycle in the
accident. On the next date, a further statement of the
complainant was recorded, wherein he has stated that tanker
dashed with Suzuki Motorcycle. Panchnama of the place of
accident was done on 26.06.2003. Before the submission of
charge-sheet, police has recorded statements of various persons
including the statements of the employees of opponent No.2-
onwer of tanker and all those persons whose statements were
recorded by police have stated that tanker had dashed with
motorcyclist. The statements recorded by police are produced at
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Exhibit-88 to 100. However, learned Tribunal has failed to
appreciate such statements and held that claimants have failed to
establish involvement of tanker in the accident in question.
Learned advocate for the appellants has further submitted that in
the cases where the involvement of the vehicles is at stake,
learned Tribunals ought to have resorted to the provisions of
Section 169 of the Motor Vehicles Act, 1988 (hereinafter
referred to as 'the Act'). Section 169 of the Act is reproduced
for the sake of convenience.
"69. Procedure and powers of Claims Tribunals.
(1) In holding any inquiry under section 168, the Claims
Tribunal may, subject to any rules that may be made in this
behalf, follow such summary procedure as it thinks fit.
(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.
(3) Subject to any rules that may be made in this behalf, the
Claims Tribunal may, for the purpose of adjudicating upon
any claim for compensation, choose one or more persons
possessing special knowledge of any matter relevant to the
inquiry to assist it in holding the inquiry.
(4) For the purpose of enforcement of its award, the Claims
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Tribunal shall also have all the powers of a Civil Court in the
execution of a decree under the Code of Civil Procedure,
1908, as if the award were a decree for the payment of money
passed by such court in a civil suit."
It is submitted that the provision gives powers of a Civil
Court to Tribunals 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.
Learned Tribunal ought to have called for the reports of the
investigation which was done by the jurisdictional police
authorities and ought to have inquired with regard to the
involvement of tanker in the event of accident.
4.1. The Panchnama of the place of accident which has been
relied upon by learned advocate for the appellants reveals that
Suzuki Motorcycle bearing Registration No.GJ-16-J-4320 was
lying at the spot of accident in a damaged condition. Tanker
involved in the accident bearing Registration GJ-16-U-9991 was
also found at the place of accident. It is submitted that when
vehicles are found on the spot of accident, presumption can also
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be drawn that the accident has occurred because of involvement
of tanker. A charge-sheet was also filed on 13.05.2003, wherein
it is mentioned that driver of tanker was driving the vehicle in a
rash and negligent manner and dashed with motorcyclist.
However, during the course of submission, learned advocate for
the appellant has placed on record a simple copy of order dated
17.04.2017 passed in Criminal Case No.9059 of 2003, wherein,
learned 4th Additional Judicial Magistrate, First Class, Bharuch
acquitting driver by invoking the provisions of Section 258 of
Criminal Procedure Code. The reason assigned in the order for
acquittal is that the investigating officer could not produce death
certificate of accused for a long period of time. The said order is
taken on record. The copy of order is taken on record.
4.2. It is further contended that an application Exhibit-48 was
tendered by claimants to issue witness summons to Investigating
Officer to remain present with documents mentioned in Exhibit-
48. Summons was issued to the Investigating Officer. However,
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despite service of summons, the Investigating Officer did not
remain present with the required documents. When claimants
made an attempt to prove the involvement of the vehicle and
when Investigating Officer did not co-operate in bringing the
material on record, learned Tribunal has erred in coming to the
conclusion that claimants have failed to establish the
involvement of the vehicle.
4.3. In support of submission, learned advocate for the
appellants has placed reliance upon the decision in the case of
Hiraben mangabhai & Ors versus Maganbhai Somabhai &
Ors. reported in 1997 (1) G.L.H. 837.
4.4. It is submitted that in the cases of vehicular accident,
statements recorded by the police during the investigation can
be used and statements made by driver of the vehicle involved
in the accident is admissible in evidence.
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5. Per contra, learned advocate for respondent No.2 has
vehemently submitted that there is no flaw in the findings of
learned Tribunal and he has supported the impugned judgment
and award. It is submitted that original opponent No.2 who was
the owner of the tanker has examined the Sarpanch of village
Vesadra at Exhibit-113-Raj Kanak Singh. As per deposition of
the said witness, he had visited the place of accident and he
found damaged tanker on road side and found that three persons
who were injured were shifted in Hospital at Bharuch. However,
he has denied the fact of involvement of motorcycle in the
accident. The evidence of said witness carries more weight than
the statements recorded by police. It is further submitted that
police has not recorded the statements of said witness. The oral
deposition of the owner of tanker which is recorded at Exhibit-
103 also establishes the fact that tanker was not involved in the
accident. It is further submitted that none of the witnesses whose
statements recorded by police were examined by claimants
before learned Tribunal and therefore, the statements which are
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relied upon by claimants are not in its sense evidence to hold
that tanker is involved in the accident.
5.1. When claimants have failed to establish involvement of
the tanker in the accident, no interference is required in the
finding of fact and the appeal may be dismissed.
6. Learned advocate Mr. Palak H. Thakkar for respondent
No.4 has supported the impugned judgment and award and
submitted that impugned judgment and award is just and
reasonable and therefore, appeal may be dismissed.
7. I have considered the submissions canvassed by learned
advocates for the parties and have perused record and
proceedings. It appears from the complaint filed by cleaner of
tanker, which is found at Exhibit-84, that on the date of
accident, driver of tanker was rashly driving vehicle and the
tanker was loaded with water. When the tanker reached near the
boundary of village Vasedra, two vehicles came from opposite
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direction and passed through the tanker in high speed. The third
vehicle which was trying to overtake other vehicle came in front
of tanker. Resultantly, opponent No.1 lost control over the
steering and went on wrong side and dashed with a tree.
Because of that, complainant as well as other three persons
including driver of tanker were injured and were taken to
Hospital for treatment. In Exhibit-84, complainant has not
mentioned about the tanker being dashed with the Suzuki
Motorcyclist but on the next date i.e. on 26.02.2003, in further
statement, complainant has stated that tanker dashed with
Suzuki Motorcyclist and thereafter dashed with a tree. It is also
stated by complainant that driver of tanker went on wrong side
and dashed with Motorcycle which was drivern by deceased.
Panchnama of the place of incident produced at Exhibit-85 also
indicates presence of tanker as well as Suzuki Motorcyclist in a
damaged condition. P.M. report also suggests that the cause of
death is accidental injuries. Charge-sheet was also filed
however, the same was not exhibited but while deciding claim
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application, Tribunal has not given due consideration to the
statements recorded by police authority during the course of
investigation which are produced vide Exhibit-88 to 92. In all
the statements, all witnesses have stated that tanker had dashed
with Suzuki Motorcycle and the accident has taken place.
Ranchhodbhai Devabhai Patel who is the brother of deceased
has also deposed before learned Tribunal at Exhibit-47 has also
confirmed that deceased was driving motorcycle on the date of
accident and the driver of tanker who was rash and negligent,
dashed with Motorcycle which resulted into death of his brother.
It is pertinent to observe that while discussing the issue of
involvement of Tanker in the accident, in the oral deposition of
claimant which is recorded at Exhibit-45, has relied upon the
statements recorded by police during the investigation.
However, the opponents have failed to cross-examine claimants
on either veracity or authenticity of the statements and nothing
contradictory evidence surfaced on record. Except only general
questions of denial there is no effective and prposeful cross-
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examination was done on the question of involvement of Tanker
in the accident. Even in the cross-examination of witness who
has been examined by claimants, opponents could not extract
any clinching adverse material. Reliance is placed upon by
learned advocate for the respondent No.2 on the oral deposition
of Raj Kanak Singh but if the oral deposition of the said witness
is scrutinized, it does not help the case of respondent for the
reason that the said witness after seeing the place of accident has
neither reported to the police authorities nor tried to find out the
cause of accident. When the Panchnama clearly indicates the
presence both the vehicles at the place of accident in damaged
condition, oral version of the witness Raj Kanak Singh is not
trustworthy.
8. Learned Tribunal had a good opportunity to inquire with
regard to the question of involvement of the vehicle and the
powers are given to the Tribunals in Section 169 of the Act.
Sub-section 2 of Section 169 of the Act gives power to the
Tribunals to take evidence on oath and of enforcing the
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attendance of witnesses and of compelling the discovery and
production of documents and material objects and while
exercising such powers, Tribunals are functioning as Civil
Courts. It would be apt to refer the decision of Jay Prakash
versus National Insurance Company Limited & Ors reported in
(2010) 2 SCC 607 wherein, the Hon'ble Apex Court has given
directions to the claims Tribunals and suggestions are also given
for the Insurance Company in paragraph Nos.20 and 21. In the
said paragraphs, the Hon'ble Apex has directed as under;
"20. The Registrar General of each High Court is directed to
instruct all Claims Tribunals in his State to register the reports
of accidents receive under Section 158 (6) of the Act as
applications for compensation under Section 166 (4) of the Act
and deal with them without waiting for the filing of claim
applications by the injured or by the family of the deceased. The
Registrar General shall ensure that necessary Registers, forms
and other support is extended to the Tribunal to give effect to
Section 166 (4) of the Act.
21. For complying with section 166(4) of the Act, the
jurisdictional Motor Accident Claims Tribunals shall initiate the
following steps:
(a) The Tribunal shall maintain an Institution Register for
recording the AIRs which are received from the Station House
Officers of the Police Stations and register them as
miscellaneous petitions. If any private claim petitions are
directly filed with reference to an AIR, they should also be
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recorded in the Register.
(b) The Tribunal shall list the AIRs as miscellaneous petitions.
It shall fix a date for preliminary hearing so as to enable the
police to notify such date to the victim (family of victim in the
event of death) and the owner, driver and insurer of the vehicle
involved in the accident. Once the claimant/s appear, the
miscellaneous application shall be converted to claim petition.
Where a claimant/s file the claim petition even before the receipt
of the AIR by the Tribunal, the AIR may be tagged to the claim
petition.
(c) The Tribunal shall enquire and satisfy itself that the AIR
relates to a real accident and is not the result of any collusion
and fabrication of an accident (by any `Police Officer - Advocate
- Doctor' nexus, which has come to light in several cases).
(d) The Tribunal shall by a summary enquiry ascertain the
dependent family members/legal heirs. The jurisdictional police
shall also enquire and submit the names of the dependent legal
heirs.
(e) The Tribunal shall categories the claim cases registered,
into those where the insurer disputes liability and those where
the insurer does not dispute the liability.
(f) Wherever the insurer does not dispute the liability under
the policy, the Tribunal shall make an endeavour to determine
the compensation amount by a summary enquiry or refer the
matter to the Lok Adalat for settlement, so as to dispose of the
claim petition itself, within a time frame not exceeding six
months from the date of registration of the claim petition.
(g) The insurance companies shall be directed to deposit the
admitted amount or the amount determined, with the claims
tribunals within 30 days of determination. The Tribunals should
ensure that the compensation amount is kept in Fixed deposit
and disbursed as per the directions contained in General
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Manager, KSRTC v. Susamma Thomas [1994 (2) SCC 176].
(h) As the proceedings initiated in pursuance of Section 158(6)
and 166(4) of the Act, are different in nature from an application
by the victim/s under Section 166(1) of the Act, Section 170 will
not apply. The insurers will therefore be entitled to assist the
Tribunal (either independently or with the owners of the
vehicles) to verify the correctness in regard to the accident,
injuries, age, income and dependents of the deceased victim and
in determining the quantum of compensation."
9. It is unfortunate that this Court has found in number of
claim petitions, where a question of involvement of the vehicle
is raised, and without following guidelines issued by the
Hon'ble Apex Court, Tribunals tend to decide claim
applications in a casual manner. Tribunals are expected to
follow guidelines issued by the Hon'ble Apex Court and should
decide the claim petitions after having ample evidence with
regard to either involvement of the vehicle or non-involvement
of the vehicle in accident.
10. In the present case, though learned Tribunal had enough
evidence for its consideration, failed to appreciate the evidence
with regard to the involvement of the vehicle. More particularly,
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when there is no effective cross-examination with regard to the
statements recorded before the jurisdictional police authority,
Tribunal ought not to have taken a hypertechnical approach in
dismissing the claim application. Instead of resorting to the
provisions of Section 169 of the Act, learned Tribunal decided
the application mainly on the evidence of a witness-Raj Kanak
Singh. The claimants, it appears, that, did make an attempt to
call upon the investigating officer to produce the statements of
the witness despite notice being issued by learned Tribunal and
which was duly received by the concerned Police Station. The
Investigating Officer reasons best known to him did not remain
present and openly violated the order of issuance witness
summons. This is in its sense a very serious issue. When Court
issues notice to the witness to remain present with documents
and more particularly, to the Investigating officer, who has
investigated into the complaint filed by complainant, has an
attitude not to remain present and flouted the order of the
learned Tribunal. Learned advocate for the appellants could not
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point out from the record as to what steps were taken by the
claimant or by the learned Tribunal in complete violation of the
order passed by learned Tribunal. It is the legal duty of the
Investigating Officer to remain present in the Tribunal / Court
with the documents mentioned in the witness summons. Learned
Tribunal has completely overlooked the conduct of the
Investigating Officer and erred in observing that no witness
have been examined by claimants to establish the involvement
of the vehicle. It is apt to observe that if witness summons
issued by learned Tribunal has been openly breached,
appropriate legal remedy could have been resorted to by learned
Tribunal. A non-bailable warrant should have been issued
against the concerned Investigating Officer for non-remaining
present before Tribunal. However, learned Tribunal failed to
resort to such legal remedy which was available under the law.
In majority of the cases for compensation under the Motor
Vehicles Act, eyewitness is not available. In cases where
eyewitness/es / is /are not available, tribunal can FIR,
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Panchnama, Charge-sheet and the statements recorded by police
during the investigation and decide claim application on
material available. If FIR and Panchnama are not sufficient in
coming to a conclusion on an issue of involvement of offending
vehicle/s, Tribunal should take resort to provisions contained in
Section 169 of Motor Vehicle Act.
11. It is submission of learned advocate for the appellants that
claimants have also produced other evidence for proving
income. It is contended that on the date of accident, deceased
was serving as an Assistant Labour Officer at Vaghra and
Exhibit-54 is the oral deposition of the witness from the office
of Assistant Labour Office, Vaghra. The said witness has
established through documentary evidence income of deceased
and other relevant facts which are stated by claimants in her
cross-examination and also in the claim petition. The
appreciation of the evidence on income for awarding just and
reasonable compensation, it would be desirable to remand the
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claim petition for its due adjudication. To such submission there
was no resistance from respondents.
12. In view of the above discussion, First Appeal stands
allowed accordingly. The judgment and award / decree dated
21.03.2011 passed in MACP No.399 of 2003 by learned Motor
Accident Claims Tribunal (Main), Bharuch is hereby quashed
and set aside and it is held that Tanker bearing Registration
No.GJ-16-U-9991 is involved in the accident which has
occurred on 25.02.2003 and finding to the effect of non-
involvement of the vehicle is hereby quashed and set aside.
13. Learned Tribunal shall decide claim application, except,
the question of involvement of vehicle, within a period of four
months from the receipt of the copy of this order.
14. It is clarified that learned Tribunal shall decide the claim
petition on the basis of oral as well as documentary evidence
produced by the parties and parties to the claim petition are not
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allowed to lead any further oral or documentary evidence. It is
directed that parties shall give full cooperation to the learned
Tribunal in deciding the claim application without seeking
unnecessary adjournments.
15. Record and proceeding, if any, be sent back to learned
Tribunal / Court.
(D. M. DESAI,J)
RINKU MALI
