Gujarat High Court
Desai Amrutbhai Motibhai vs Hanumanram Bhanvarlal Gurjar on 28 April, 2025
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C/FA/853/2009 JUDGMENT DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 853 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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DESAI AMRUTBHAI MOTIBHAI
Versus
HANUMANRAM BHANVARLAL GURJAR & ORS.
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Appearance:
MR MP SHAH(2418) for the Appellant(s) No. 1
MS. KRUTI M SHAH(2428) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 5
MS HINA DESAI(1023) for the Defendant(s) No. 3
RULE SERVED BY DS for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 28/04/2025
ORAL JUDGMENT
1. Heard learned advocate Ms. Kruti M. Shah for the
appellant, learned advocate Mr. Sunil B. Parikh for
respondent No.5 while learned advocate Ms. Hina Desai
for respondent No.3. Rule could not be served upon
respondent Nos.1 and 2 while respondent No.4, though
served, did not appear. Perused the record.
2. The challenge in the present appeal is with regard to the
judgment and award dated 18.8.2007 passed by learned
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Motor Accident Claims Tribunal (Aux), Viramgam,
District Ahmedabad in M.A.C.P. No.54 of 2006.
3. The facts in brief of the case are as under:
* On 14.1.2006, the claimant was travelling in
Qualis Car bearing registration No.GJ-03-W-9997 from
Vadhvan to Viramgam. When the said car reached near
the place Ramchhapri situated near Viramgam,
opponent No.1 - driver of tanker bearing registration
No.RJ-29-G-0276 came opposite side in full speed and
dashed with the said car. Resultantly, claimant
sustained severe injuries.
* The claimant filed a claim petition being MACP
No.54 of 2006 before the learned Motor Accident
Claims Tribunal claiming compensation of Rs.3,00,000/-
from the opponents. Opponents were served with the
notice of claim petition. Opponent Nos.1 and 2 did not
appear to contest the claim petition, however,
opponent No.3 - insurance company appeared and
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filed Written Statement at Exh.24 and denied its
liability. Opponent No.4 driver of car was deleted from
the array of parties on 26.6.2007. Opponent No.5 -
owner of the car though served, did not appear.
Opponent No.6 - insurance company of the car
appeared and filed Written Statement at Exh.15 and
contested the claim petition. Issues were framed.
* Claimant examined himself at Exh.27 and
produced documentary evidence such as FIR, RC Book,
Panchnama, Driving license, injury certificate in
support of claim petition.
* After considering the evidence on record and
considering the submissions, learned Tribunal
dismissed the claim petition.
* Being aggrieved and dissatisfied with the
impugned judgment and award - the appellant -
original claimant has filed this appeal.
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4. At the outset, learned advocate for the appellant
submitted that the deceased was travelling in the Qualis
Car on the date of accident and because of the rash and
negligent driving of the driver of tanker, the accident
occurred. Resultantly, the claimant sustained fractures
in ribs and also sustained fracture in spine. He was
admitted in Viramgam Government Hospital being
registration number MLC 17 and, thereafter, he was
shifted to Ahmedabad. Claimant was admitted in the
hospital under the treatment of Dr. Dhaval Bhatia,
where he was operated. On 1 st January, 2006, claimant
was admitted at Ganesh Orthopedic Hospital and he was
discharged from the said hospital on 25.1.2007. It is
further submitted that complaint was filed by one
Chandrasekhar Sumanrao on 14th January, 2006.
Pursuant to the FIR, charge sheet was filed by the
investigating officer which is produced at Exhibit 34 and
the name of claimant is shown as Sr. No.16 as a witness.
The disability certificate issued by Dr. Aditya Upadhyaya
of Srirang Polyclinic and certificate issued by Dr.
Babubhai Patel of Ganesh Orthopedic Hospital are
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sufficient evidences. Whereby, the fact has been proved
by claimant that he has sustained serious injuries in the
accident. The X-ray report of Dr. Narendra Patel was
also produced on record.
5. Per contra, learned advocate for respondents -
Insurance Companies have supported the judgment and
award and submitted that learned Tribunal has rightly
considered the evidence on record and awarded just and
reasonable compensation. 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 submissions canvassed by learned
advocates for the respective parties and perused the
Record and Proceedings. The case set up by claimant in
the claim application is that on 14.1.2006 while
proceedings towards Viramgam from Vadhwan in Qualis
Car because of rash and negligent driving of the driver
of tanker, the accident occurred. It is coming out from
the cross examination of the claimant which is recorded
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at Exh.27 that claimant is a government employee. The
complaint is filed by one Chandrashekhar Patvardhan
(Exh.28) and as per his statement, three persons were
sitting in the Qualis Car before the accident occurred
with the tanker, the said car was dashed with another
vehicle at the driver side. Resultantantly, smoke started
coming out from the car despite the fact that driver of
car continued with driving and after some time, the
accident with the tanker occurred. Interestingly, as per
the statement of the complainant which is reflected in
the impugned award that after the mishap with the
tanker, the car turned turtled on the side of the road and
then the car came into original position and, thereafter,
driver of the said car had started his car and brought it
on the road and told the passengers to leave the car.
The claimant has not examined the complainant,
however, in the cross examination complainant has
stated that he has no knowledge about the first accident
before the Qualis car dashed with the tanker.
Interestingly, the name of claimant is shown as witness
in the charge-sheet at Sr. No.16. The claimant has
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stated that he was admitted after the accident. He was
admitted in Government Hospital, however, it appears
that claimant has not produced any certificate of
hospital to that effect. Claimant has not examined any
officer of the government hospital to substantiate his
say that he was admitted in the said hospital on
14.1.2006.
7. It is the common practice in the claim petitions that the
claimant produce disability certificate much after filing
of the claim petition which is also found in the present
case. Disability certificate Exh.31 issued by Dr.
Upadhyaya is dated 1.6.2007 and the certificate issued
by Ganesh Orthopedic Hospital Exh.30 is of 2.11.2006.
In the certificate Exh.30 of Ganesh Orthopedic Hospital,
a mention is made about the admission of claimant at
Medilink Hospital for treatment, however, record reveals
that claimant has neither examined any Doctor from
such hospital. It also appears that claimant has not
examined Dr. B. C. Patel of Ganesh Orthopedic Hospital
in support of the certificate Exh.30.
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8. In claim applications which is arising out of Motor
Vehicles, preliminary burden is on the claimant to
establish that he has sustained injuries in the vehicular
accident and because of such vehicular accidental
injuries, he has taken treatment in the hospital. In the
cross examination Exh.27 claimant has admitted for the
period from 14.1.2006 till 18.1.2006 for which, no proof
has been produced to that effect. By placing reliance
upon one X-ray, the disability of proving the burden of
accidental injuries cannot be attributed. The disability
certificate Exh.31 is of no significance and it seems that
certificate is issued in a routine manner. Dr. Aditya
Upadhyaya is known for issuing such certificates in
almost accidental injury cases. The certificate issued by
Dr. Aditya Upadhyaya is of no assistance to the claimant
in establishing the fact that claimant has sustained
injuries in the accident.
9. In totality of facts and circumstances of the case and
considering the nature of accident, I am of the view that
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present First Appeal is meritless and the same deserves
to be dismissed and is dismissed accordingly.
10. R & P, if any, to be sent back to the concerned Court
immediately. No order as to costs.
(D. M. DESAI,J)
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