Gujarat High Court
Hasmukhbhai Fatehchand Shah Through ... vs Kashmirsing Amarsing Rajput on 12 February, 2025
NEUTRAL CITATION
C/FA/5767/2008 ORDER DATED: 12/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5767 of 2008
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HASMUKHBHAI FATEHCHAND SHAH THROUGH POA
Versus
KASHMIRSING AMARSING RAJPUT & ORS.
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Appearance:
MR RAKESH R PATEL(3239) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 2
MR KASHYAP R JOSHI(2133) for the Defendant(s) No. 5
MR SHASHIKANT S GADE(1706) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/02/2025
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 08.02.2008 passed by the Motor Accident Claims
Tribunal, Vadodara in Motor Accident Claim Petition No.969 of
1993.
2. Brief facts of the case are as under :
2.1 The brief fact of the present appeal is such that on
20.12.1992, deceased Hasmukhbhai Shah was travelling in
Tempo bearing No.GJ-7-T-8801 from Anand to Manmad village
and when they reached near the place of accident, one Tanker
No.HNU-8596 came in rash and negligent manner and dashed
NEUTRAL CITATION
C/FA/5767/2008 ORDER DATED: 12/02/2025
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with the tempo. As a result, the accident took place and
deceased sustained severe injuries. The claimant has filed
aforestated claim petition under Section 166 of the Motor Vehicle
Act, 1988 claiming compensation of Rs.2,50,000/-. The learned
Tribunal vide impugned judgment and award dated 08.02.2008
has dismissed the claim petition. Hence, the present appeal.
3. Heard learned advocates for the respective parties.
4. M.A.C.P. No.969 of 1993 filed by Mr.Hasmukhbhai
Fatechand Shah has been rejected by the learned Tribunal by
returning the following findings :
"This issue is connected with medical expenses other
expenses loss of income and future loss of income due to
permanent disability. In this claim petition applicant is
the injured person and present applicant filed a claim
petition to get Rs.6,00,000/- as a compensation with
interest. As per the averment of claim petition that
applicant was of the age of 38 years at the time of
accident and earn Rs.2,000/- per month by way of
salary at the time of accident. They served with business
man of tobacco. Due to this accident this applicant
sustained grievous injury of multiple fracture on both the
legs, head, forehead, hand and other part of the body.
This applicant sustained injury on both the legs and due
to this injury this applicant do not able to perform his
duty up to two years. This applicant gave his oral
evidence affidavit on oath by Exh.28. In cross
examination this applicant say that he is not owner of
tobacco and not served with tobacco business and they
are not connected with the tobacco business man. As per
the averment of claim petition and oral evidence of
Exh.28. That applicant sustained grievous injury of
fracture injuries on both legs. Primary he admitted in
hospital at Vadodara and than after on dated
25.12.1992 admitted in Shri Krishna Hospital and
treated as indoor patient and discharged on dated: 15-
03-1993 treatment of plaster given of both legs and plate
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C/FA/5767/2008 ORDER DATED: 12/02/2025
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and steel rings are fixed in his both the legs. As this
applicant say that they engage in a transport work and
ownership of Tempo no. GJ-17-T-8801 of his father. So, I
have to presume that applicant earn Rs.2,000/- per
month at the time of accident but this applicant not
produced any treatment papers of date 20.12.1992 and
only produced a discharged card of Shri Krishna
hospital by Exh.30. Out of that discharge card no any
discharge was of the date of 20-11-1992 and all the
discharge cards are onwards after dated: 25-01-1993.
So, I am unable to find that applicant sustained grievous
injuries on both the legs of fracture, this applicant
produced permanent disability certificate by Exh.37. As
per that certificate this applicant have a permanent
disability of 72% and it becomes 30% on whole body but
in absence of any other treatment papers of Vadodara
hospital and nearly accident period. So, I am unable to
award any compensation amount for the same. Not only
that present applicant is not a driver or labourer on
tempo no. GJ-17-T-8801. He is owner of own vehicle can
not filed claim petition against his vehicle above
discussion, I come to the conclusion that applicant of this
claim petition is not entitled to get any compensation
amount for this claim petition. So, I answer issue no.2 in
the negative."
5. The finding of the learned Tribunal is found to be
conservative and totally in teeth of the very purport and object of
Motor Vehicle Act, 1988. Section 168 is mandating the learned
Tribunal to grant just and fair compensation. I am failed to
understand that on which ground the learned Tribunal believed
that the claimant was the owner of the vehicle and cannot claim
the compensation for his own vehicle. The claimant according to
his pleadings was standing in the tempo which is owned by his
brother and this tempo dashed with the truck. The driver, owner
and insurer of the truck is also joined as party in the claim
petition. For the truck, the claimant was third party and even for
tempo, he is third party, but the learned Tribunal on very rustic
and cryptic manner rejected the claim petition believing that the
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C/FA/5767/2008 ORDER DATED: 12/02/2025
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claimant was owner of the tempo. Moreover, despite the claimant
has produced the discharged card and disability certificate,
learned Tribunal find it short of sufficient evidence and returned
the finding that insufficient medical papers are produced on
record and on this two grounds the learned Tribunal has
rejected the claimant. I found the approach of the learned
Tribunal as totally incorrect which is against the very settled
principles of law, cryptic and deplorable and accordingly it is
deprecated. Also the aforesaid finding cannot sustain in Court of
law and deserves to be set aside and accordingly, it is set aside.
6. For the reasons stated hereinabove, the appeal is allowed.
The impugned judgment and award passed in M.A.C.P. No.969
of 1993 is quashed and set aside. The proceedings of the
M.A.C.P. No.969 of 1993 is remanded back to the learned
Tribunal for fresh hearing. Both the parties are given liberty to
lead necessary evidence, if they so desire. Both the parties or
their representatives shall remain present before the learned
Tribunal on 10.03.2025. Registry shall ensure that record and
proceedings be returned back so as to reach to the learned
Tribunal before 10.03.2025. Since claim petition is of the year
1993, it is expected from learned Tribunal to give top priority to
the hearing of the claim petition and it is expected that same
shall be decided within six weeks from 10.03.2025.
(J. C. DOSHI, J)
GAURAV J THAKER
