Gujarat High Court
Jan Mamad Amadbhai Safia vs Karshan Naran Gadhvi on 5 February, 2025
NEUTRAL CITATION
C/FA/2963/2012 ORDER DATED: 05/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2963 of 2012
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JAN MAMAD AMADBHAI SAFIA
Versus
KARSHAN NARAN GADHVI & ORS.
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Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
MR HITESH N ACHARYA(2302) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 2,3,4,5,6
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
claimant being aggrieved and dissatisfied with the judgment and
award dated 27.04.2012 passed by the Motor Accident Claims
Tribunal, Jamnagar in Motor Accident Claim Petition No.495 of
2004.
2. Though respondent no.4 is represented by learned
advocate Mr.Hitesh Acharya, he is not present when the matter
is taken up for hearing.
3. Heard learned advocate Mr. Mansuri for the appellant.
Learned advocate for the appellant would submit that claimant
was passenger in Chokdo Rickshaw No.GJ-12-W-6429. Learned
Tribunal after assessing evidence on record, in absence of
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C/FA/2963/2012 ORDER DATED: 05/02/2025
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deposition of driver of vehicles believed that accident took place
due to sole negligence of the driver of Chokdo rickshaw and as
such exonerated another vehicle being Vespa Rickshaw No.GJ-
10-V-541 involved in the road accident. It is further submitted
that so far as case of the claimant is concerned, it is case of
composite negligence and involvement of two vehicles is
sufficient for the claimant to claim compensation from either of
the wrong doer but learned Tribunal taking hyper technical
approach exonerated Vespa Rickshaw driver, owner and insurer
of liability to pay compensation. In crux, learned advocate Mr.
Mansuri submitted that claimant would be entitled for
compensation jointly and severally from the wrong doer or any of
them. It is submitted that matter may be remanded back for
fresh consideration by allowing present appeal.
4. As stated herein-above, learned advocate Mr.Acharaya for
respondent no.4 is absent though served, did not chose to
contest present appeal.
5. Having heard learned advocate Mr.Mansuri for the
appellant and perusing impugned judgment and award, more
particularly on the point of liability, what could be noticed that
claimant was travelling in Rickshaw No.GJ-12-W-6429 and
when it reached near accident spot, it dashed with vehicle
coming ahead i.e. Vespa Rickshaw and due to which accident
took place. Learned Tribunal having visualized scene of accident
from FIR and Panchnama, applying ratio of res ipsa liquotor
believed that Chakdo Rickshaw driver and owner are liable to
pay compensation and exonerated driver, owner and insurer of
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C/FA/2963/2012 ORDER DATED: 05/02/2025
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Vespa Rickshaw.
6. It is to be borne in mind that claimant was one of the
passenger in Chakdo Rickshaw. Accident took place between two
vehicles. Either of drivers of vehicle would fall within definition of
wrong doer. It is issue of composite negligence and while
deciding composite negligence, learned Tribunal was expected to
keep in mind law laid down in the case of Pawan Kumar & Anr
vs M/S Harkishan Dass Mohan Lal [2014 (3) SCC 590] which is
reiterated in the case of Khenyei v/s. New India Assurance
Company Ltd. [2015 (9) SCC 273]. Moreover, what could be
noticed that driver of either of the vehicle did not step into
witness box to deny assertion made by the claimant involving
both the vehicles. Claimant being eye witness was required to be
believed on this aspect.
7. In view of above, without further delving into merits of the
case, I find that it is fit case to remand the claim petition for
fresh consideration.
8. For the aforesaid reasons, the appeal is allowed in
aforesaid terms. The impugned judgment and award qua MACP
No.495 of 2004 is quashed and set aside. Proceedings of MACP
No.495 of 2004 is remanded and restored back to learned MACT,
Jamnagar concerned for fresh decision permitting both the
parties to lead evidence, if they so desire. Needless to state that
MACP shall be decided on its own merits. Endevour of the
learned Tribunal should be to dispose of the matter within six
months from the date of receipt of the order or as early as
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C/FA/2963/2012 ORDER DATED: 05/02/2025
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possible, in view of the fact that MACP is filed in the year 2004.
Learned Tribunal shall issue notice to both the insurance
companies in remanded matter. The claimant shall personally
remain present before the learned Tribunal concerned on
11.03.2025. Registry to ensure that Record and Proceedings
shall reach to learned Tribunal before 11.03.2025.
(J. C. DOSHI,J)
SATISH
