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Gujarat High Court
Thakor Chanduji Dolaji vs Patel Nileshbhai Nagerbhai on 10 December, 2025
NEUTRAL CITATION
C/FA/1133/2010 JUDGMENT DATED: 10/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1133 of 2010
With
R/FIRST APPEAL NO. 1134 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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THAKOR CHANDUJI DOLAJI
Versus
PATEL NILESHBHAI NAGERBHAI & ORS.
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Appearance:
MR JM BAROT(143) for the Appellant(s) No. 1
MS KIRAN D PANDEY(3337) for the Defendant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 10/12/2025
ORAL JUDGMENT
1. The captioned appeals have been preferred by the
appellants against the common impugned judgment and award
dated 24.07.2009 passed by the learned Tribunal in Motor
Accident Claim Petition No.26 of 2003 and 27 of 2003, whereby
the learned Tribunal had partly allowed the claim petition and
awarded a sum of Rs.40,800/- and Rs.77,000/- respectively as a
compensation along with the interest at the rate of 7.5% per
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annum from the date of filing of the claim petition till its
realization.
2. The succinct facts leading to file the captioned appeals are
that the claimants of both the claim petitions namely Thakor
Chanduji Dolaji and Thakor Karsanji Dolaji were returning from
village Der to Sihi and when they came between village Sihi and
Sunak at about 11:00 hours at the place of accident, in the
meantime a jeep bearing registration No.GJ-2-X-3198 came from
behind and dashed with the claimants. The
claimants/appellants- herein sustained grievous injuries and
they were taken to the hospital. It is also pleaded before the
learned Tribunal that the accident occurred owing to the sole
negligence of the driver of the jeep i.e. respondent No.1-herein. It
has also been averred that at the time of accident, the claimants
were engaged in agricultural work and they were earning
Rs.1,500/- per month. In the said accident, they sustained the
permanent disability, therefore, they prayed for compensation.
3. On being served, opponent No.1 and 2 i.e. driver and owner
of the offending vehicle had chosen not to appear before the
learned Tribunal, however, the Insurance Company filed the
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written statement at Exh-36 and 40 respectively. The Insurance
Company denied the factum of accident, age and income and it
has also been pleaded that the vehicles in question were goods
vehicles and the passengers are not allowed in it as per the
terms of the policy. Even though, the vehicle was being used for
carrying the passengers at the time of accident.
4. Having considered the pleadings of the parties, the learned
Tribunal framed the following issues at Exh-13 and 14
respectively in both the claim petitions.
"1. Whether it is proved that the claimants
sustained injuries on account of rashness or negligent
driving on the part of the driver of vehicle involved in
the accident?
2. What amount, if any, the claimant is entitled to
receive by way of compensation and from which of the
opponent?
3. What order and decree?"
5. In order to prove their respective claims, the
claimants/appellants have led the following oral as well as the
documentary evidence before the learned Tribunal:-
Sr Particulars Exhibit
No.
1. Affidavit in examination-in-chief 19
and cross-examination of Thakor
Chanduji Dolaji (in M.A.C.P. No.26
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of 2003)
2. Affidavit in examination-in-chief 21
and cross-examination of Thakor
Karsanji Dolaji (in M.A.C.P. No.27 of
2003)
4. Copy of panchnama of place of 25
accident
5. Copy of R.C. book of offending 27
vehicle
6. Copy of injury certificate of Thakor 28
Chanduji Dolaji
7. Copies of medical bills of Thakor 28 & 47
Chanduji Dolaji
8. Medical certificate of Thakor 29 & 30
Karsanji Dolaji
13. Medical bills of Thakor Karsanji 42
Doalji
15. Copy of statement of Thakor 44 & 45
Chanduji Dolaji and Thakor
karsanji Dolaji recorded by the
investigating officer
16. Injury certificate of Thakor 47
Chanduji Dolaji
17. Disability certificate of Thakor 50
Chanduji Dolaji
18. Disability certificate of Thakor 49
Karsanji Dolaji
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6. Having considered the pleadings, evidence and
submissions advanced by the learned advocates for the
respective parties, the learned Tribunal had partly allowed the
claim petition and awarded a sum of Rs.40,800/- as a
compensation along with the interest at the rate of 7.5% from
the date of filing of the claim petition till its realization in Motor
Accident Claim Petition No.26 of 2003 and a sum of Rs.77,000/-
in Motor Accident Claim Petition No.27 of 2003 as a
compensation along with the interest at the rate of 7.5% from
the date of filing of the claim petition till its realization.
7. While question of fastening the liability to satisfy the award
came for consideration, the learned Tribunal had exonerated the
Insurance Company of the offending jeep and opponent No.1 and
2/respondent No.1 and 2- herein were held liable to satisfy the
award.
8. Being aggrieved and dissatisfied with the exoneration of the
Insurance Company, the claimants of both the claim petitions
preferred their respective appeals.
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9. Heard learned advocates for the parties.
10. Mr. J. M. Barot, learned advocate for the original
claimants/appellants-herein, vehemently submitted that it is the
case of the claimants throught the trial that the claimants were
hit by the jeep bearing registration No.GJ-2-X-3198 while they
were walking on the road as respondent No.1-herein the driver of
the offending jeep lost the control and thereafter the said jeep
turned turtle. He further submitted that the F.I.R was came to
be registered by one Naranbhai Chaturbhai. In the said F.I.R, he
stated that amongst the other passengers, the Thakore of village
Der were also travelling in the jeep. He further submitted that
the learned Tribunal relied upon the F.I.R and exonerated the
Insurance Company on the ground that at the time of accident
the claimants/appellants were travelling in the jeep. However, it
is the case of the claimants that they were walking on the road
at the time of accident and the jeep hit them and resultantly
they sustained injuries. They had also pleaded the said fact in
the claim petition and they have also filed the affidavit along with
the lines of pleading. He further submitted that both the
claimants stepped into the witness box, however, their version
was not challenged in cross-examination. Not only this, the
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investigating officer had also recorded the statements of both the
claimants. The statement of claimant/appellant Thakor
Chanduji Dolaji was recorded on 11.05.2002 while the statement
of Thakor Karsanji Dolaji was recorded on 17.05.2002. In their
respective statements, they stated that while they were walking
on the road, the driver of the jeep came with the jeep at an
excessive speed and hit them and thereafter the said jeep turned
turtle. He further submitted that despite this fact, the learned
Tribunal did not believe the version of the claimants and
exonerated the Insurance Company on the ground that at the
time of accident, the claimants/appellants were travelling in the
goods vehicle. He further submitted that when there is some
contradiction between the police papers and the version of the
claimants, the learned Tribunal ought to have given more
weightage to the version of the claimant and oral evidence of the
claimant. In support of his contention, learned advocate has
placed reliance upon the judgment of the Apex Court rendered in
the case of National Insurance Company Limited Vs
Chamundeshwari & Ors, reported in 2021 ACJ 2558. Placing
reliance upon the aforesaid judgment, learned advocate for the
appellant submitted that the present appeal deserves to be
allowed and accordingly prayed that Insurance Company be held
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liable to satisfy the award.
11. On the other hand, Ms. Kirti S. Pathak, learned advocate
appearing on behalf of the Insurance Company, vehemently
submitted that at the time of accident, the claimants were
travelling in the offending jeep, which is meant for carrying
goods, therefore, the Insurance Company is not liable to satisfy
the award and hence, the Insurance Company has rightly been
exonerated by the learned Tribunal. She further submitted that
so far as the statements of the claimants are concerned, the said
statements were recorded after a long time from the date of
accident. Therefore, the learned Tribunal had not rightly believed
the statement dated 11.05.2002 of Thakor Chanduji Dolaji and
17.05.2002 of Thakor Karsanji Dolaji. She further submitted
that there is no infirmity in the impugned judgment and award,
therefore, the present appeal deserves to be rejected.
12. Having considered the submissions of the learned
advocates for the parties and having gone through the record,
the date of accident, age, income and occupation of the
claimants are not under challenge. The claimants have not
challenged the impugned judgment and award on the point of
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quantum. Learned advocate for the appellant has argued only in
respect of the exoneration of the Insurance Company.
13. The Motor Accident Claim Petition No.26 of 2003 and 27 of
2003 came to be filed by the claimants/appellants on the ground
that at the time of accident, the claimants/appellants were going
to purchase the buffalo and when they returning from it, the
offending jeep came from behind at an excessive speed in a rash
and negligent manner without blowing the horn and hit both the
claimants/appellants from behind. In the said accident, they
sustained the grievous injuries and they were taken to the
hospital. The FIR at Exh-24 came to be lodged by one Naranbhai
Chaturbhai, in the said FIR, he narrated that the accident
occurred owing to the rash and negligent driving of the driver of
jeep bearing registration No.GJ-2-X-3198. He also stated in the
said FIR that at the time of accident, the passengers were
travelling in the said jeep and some Thakore of Der village were
also sitting in the jeep. He nowhere stated that the very same
claimants were sitting in the jeep. The names of the claimants
were not mentioned in the entire FIR. The investigating officer,
during the course of investigation, also recorded the statements
of both the claimants. The statement of Thakor Chanduji Dolaji
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came to be recorded on 11.05.2002 while the statement of
Thakor Karsanji Dolaji came to be recorded on 17.05.2002. The
accident in question took place on 07.05.2002, however, the
learned Tribunal disbelieved both the statements on the ground
that these statements were recorded after a long time of
accident. In my considered view, the learned Tribunal has lost
the sight to the fact that both the claimants/appellants
sustained grievous injuries and they were admitted in the
hospital and they remained admitted in the hospital as an indoor
patient for a considerable time. The incident which took place on
07.05.2002, and for which the I.O. recorded the statement on
11.05.2002 and 17.05.2002, in my considered view it is not to be
ignored on the ground that the said statements were recorded
after a long time. In fact, these statements were recorded in the
proximity of time of accident. Medical papers further transpires
that Thakore Karsanji Doalji sustained the head injuries and
other fracture injuries while the claimant/appellant Thakor
Chanduji Dolaji also sustained the grievous injuries and also
sustained the multiple fractures.
14. The injury certificate of Thakor Karsanji Dolaji at Exh-30
also transpires that the history given by the Thakore Karsanji
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Dolaji to the doctor he stated that he sustained the injuries
owing to the over turning of the jeep. In the affidavit of
examination-in-chief at Exh-19 and 21, the claimants remained
affirmed to their version. They were also cross-examined and
they denied the suggestions that at the time of accident they
were travelling in the jeep. The Insurance Company has not led
any evidence in rebuttal to rebut the version of the
claimants/appellants.
15. At this juncture, it would be profitable to refer the
judgment of the Apex Court rendered in the case of
Chamundeshwari (supra), relied by the learned advocate for the
appellant, wherein the Apex Court has held that where there is
some contradiction between the police papers and the version of
the claimants, the oral evidence of the claimant adduced before
the learned Tribunal must be given more weightage. Thus,
considering the version of the claimant before the learned
Tribunal throught and the oral evidence adduced by the
claimants/appellants, which is also supported by the statements
of the claimants recorded by the I.O., in my considered view
sufficient to hold that at the time of accident
claimants/appellants were not travelling in the offending vehicle
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and hence, the learned Tribunal has committed serious illegality
in not accepting the version of the claimants/appellants.
16. It is also on record that the insurance policy of the
offending vehicle was proved before the learned Tribunal at Exh-
27. Perusal of the policy transpires that the Insurance Company
has charged the premium of Rs.50/- on account of non-fare
paying passengers as per IMT No.13 and also charged the
premium of Rs.50/- for non-fare paying passengers as per IMT
No.14. The Insurance Company had charged the separate
premium for the persons employed in connection with the
operation of loading and unloading of the motor vehicle IMT 17
and also charged the premium of Rs.75/- for the paid driver.
Even if, for the sake of argument if it is presumed that the
claimants were travelling in the jeep, even though their claim
was covered under the policy as the Insurance Company has
charged the premium of Rs.50/- for non-fare paying passengers
as per IMT No.13 and Rs.50/- for non-fare paying passengers as
per IMT No.14. But the said fact was also ignored by the learned
Tribunal.
17. Thus, considering the totality of the fact that the claimants
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have successfully proved that at the time of accident they were
walking on the road when they were hit from behind by the
offending jeep, therefore, the Insurance Company cannot avoid
its liability to satisfy the award and accordingly, the captioned
appeals are stand allowed partly and all the respondents i.e.
driver, owner of the offending jeep and the Insurance Company
of the offending jeep are held liable to satisfy the award. The
impugned judgment and award is modified to that extent. All the
respondents are made liable to satisfy the award jointly and
severally.
18. The Insurance Company shall deposit the awarded amount
along with the interest within a period of 6 weeks from today.
19. Upon depositing of the said amount, the learned Tribunal
shall disburse the amount to the original claimants, after
deducting the deficit court fees, if any, and after due verification.
20. Amount, if any, lying deposited with the Registry of this
Court, the same be transmitted to the concerned learned
Tribunal forthwith.
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21. R & P, if any, be sent back to the concerned learned
Tribunal forthwith. No order as to costs.
(MOOL CHAND TYAGI, J)
CDP
