Gujarat High Court
Umiyaben Wd/O Abherajbhai Dalsangbhai ... vs Maljibhai Jivanbhai Desai on 14 February, 2025
NEUTRAL CITATION
C/FA/3500/2009 ORDER DATED: 14/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3500 of 2009
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UMIYABEN WD/O ABHERAJBHAI DALSANGBHAI CHAUDHRI &
ORS.
Versus
MALJIBHAI JIVANBHAI DESAI & ORS.
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Appearance:
MR SHAILESH C SHARMA(3450) for the Appellant(s) No. 1,2,3,4
ADVOCATE NOTICE SERVED for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 14/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
claimants being aggrieved and dissatisfied with the judgment
and award dated 18.09.2008 passed by the Motor Accident
Claims Tribunal, Patan in Motor Accident Claim Petition
No.1695 of 2002.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
20.11.1994, deceased Abherajbhai was sitting as pillion rider on
scooter No.GAQ-3725 driven by Pratapbhai Chaudhari and when
they reached near the place of accident, one bicyclist rushed to
the road and to avoid the accident, Pratapbhai applied break and
stopped the scooter. When the scooter was stopped, one Truck
coming from back side in rash and negligent manner dashed
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with the scooter. As a result, the accident took place and
deceased sustained severe injuries and succumbed to the
injuries. Therefore, offence to that effect is registered before the
Patan city Police Station vide FIR being I-C.R.No.239 of 1994.
The legal heirs of the deceased have filed aforestated claim
petition under Section 166 of the Motor Vehicle Act, 1988
claiming compensation of Rs.7,00,000/-. The learned Tribunal
vide impugned judgment and award dated 18.09.2008 has
granted compensation to the tune of Rs.7,00,000/-. Hence, the
present appeal.
3. Heard learned advocate Mr.Shailesh Sharma appearing for
the claimants. Learned advocate appearing for the Insurance
Company since elevated to the bench of this Court, Registrar
(Judicial) issued notice on 12.12.2024 to the United India
Insurance Company Limited. Notice is served but no
arrangement has been made to represent the Insurance
Company and therefore, the appeal is heard in absence of
learned advocate for the Insurance Company.
4. In the appeal challenge is made to the impugned judgment
and award whereby learned Tribunal rejected the claim petition
on the ground of non-involvement of Truck No.GQD-4647.
Learned advocate Mr.Sharma having read the entire judgment
and award would argue that learned Tribunal has failed to
consider the statements recorded by the police during the
investigation of the offence which indicates that driver of truck
has dashed the truck with scooter. He would further submit that
these facts were oozing out of the statements of the witnesses
recorded during the police investigation of the offence but the
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learned Tribunal believed non-involvement of the vehicle i.e.
truck and dismissed the claim petition. Upon above
submissions, he would submit to allow the appeal.
5. At the outset, I refer to the pleading of the case which
indicates that on ill-fated day i.e. on 20.11.1994, deceased
Abherajbhai was sitting as pillion rider on scooter No.GAQ-3725
driven by Pratapbhai Chaudhari and when they reached near the
place of accident, one bicyclist rushed to the road and to avoid
the accident, Pratapbhai applied break and stopped the scooter.
When the scooter was stopped, one Truck coming from back side
in rash and negligent manner dashed with the scooter. As a
result, the accident took place and deceased sustained severe
injuries and succumbed to the injuries. The offence to that effect
was registered before the Patan city Police Station vide FIR being
I-C.R.No.239 of 1994.
6. Learned Tribunal has framed the issues at Exhibit-15
which reads as under :
"(1) Whether it is proved that the claimant sustained
injuries on account of rashness or negligence in driving on
the part of the driver of the vehicle bearing No.GQD4647
involved in the accident and succumbed to death?
(2) What amount, if any, the claimants are entitled to by
way of compensation and from which of the opponents?
(3) What order and award?"
7. To prove the pleadings and its claim, the claimant has
produced oral as well as documentary evidence. The claimants
are not eye-witness, therefore, her deposition will not be
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material. Copies of FIR is produced at Exh.24, panchnama at
Exh.25, PM report at Exh.26, injury certificate at Exh.27 and
inquest panchnama is produced at Exh.28. In the FIR it is stated
by the first informant that she was pillion seated in the cycle
driven by Rameshji and near the accident spot, scooter came
from opposite side and dashed with the cycle. In the first
statement before police, nowhere involvement of truck is
mentioned. Though number of scooter was mentioned. In
strange procedure, the further statement of first informant was
recorded below FIR by IO to involve the truck in the road
accident. Panchnama which is taken place post accident does
not disclose the present of truck. Learned advocate for the
claimants relied upon the statements of witness, however, none
of the statements were proved before the learned Tribunal.
Except the statement recorded below FIR, no other documents
are produced to show that truck was involved in the accident.
The first informant has not been examined by the claimant nor
the scooterist. It is important to note that deceased was sitting
pillion on the scooter received fatal injuries out of the road
accident whereas driver of scooter did not receive single scratch
from the accident. There are sufficient clouds about the
involvement of the truck in the road accident. The claimants
were required to remove these clouds by leading necessary
evidence. Had the claimant led the evidence of scooterist or even
IO, to remove the doubt on involvement of the truck, upon
principle of preponderance of probabilities, the court can held
that truck was involved in the road accident. In absence of the
evidence, this Court cannot believe that the truck was involved
in the road accident.
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8. At this juncture, I may refer to the finding of the learned
Tribunal as under :
"5 . Negligence.
Prior to enter into merits of the case, it is useful to
note here that in the occurred accident two vehicles are
involved, one is scooter No.G.A.Q.3725 on which the
deceased Abherajbhai was pillion rider and it was being
driven by Pratapbhai when it met with an accident. The
driver, an owner and insurance company of this scooter
No. G.A.Q..3725 are not joined as the parties to the
proceedings.
It is further useful to note here that according to the
claimants, this accident has occurred on 20/10/94, the
deceased Abherajhai who had received injuries in this
accident is died in hospital on 25/11/94. It is further
useful to note here that, the driver i.e. Pratapbhai
Fuljibhai who was driving this scooter No.G.A.Q.3725
when it met with an accident had not received grievous
injuries in this accident occurred on 20/11/94 and this
Pratapbhai Fuljibhai who was driving this scooter
No.G.A.Q.3725 has not lodged the complaint before the
police for the occurred accident on very day of an
accident, subsequently also this Pratapbhai has not gone
to the police for lodging the complaint before the police
for this occurred accident.
In the case on hand , the claimants have produced
the complaint for the occurred accident at Ex.24. This
complaint of Ex.24 has been lodged by Manguben
Ambaram Kanjibhai Raval before the city Patan police
station, Patan on 20/11/94. On going through this
complaint of Ex.24, it appears that the has occurred
between bicycle which was being ridden by Jayantiji
Ratnaji and on carrier of this bicycle Vishnuji Ambaram
Raval was sitting, it also appears from the complaint of
Ex.24 that another bicycle was rode by Rameshbhai and
on carrier of this bicycle, the complainant Manguben was
sitting an the scooter No.GAQ.3725 was dashed against
bicycle of Rameshji Keshaji Thakor and therefore, the
complainant Manguben as well as Rameshji both were
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fell down from the bicycle. In this complaint of Ex.24 it
has not mentioned that any truck had dashed behind
the scooter No.G.A.Q.3725. In other words, in regard to
any motor vehicle truck, no reference has been given in
this complaint of Ex.24, on the contrary, it has been
alleged in this complaint that the scooter No.G.A.Q.3725
had dashed against the bicycle ridden by Rameshji and
in this accident, this Rameshji as well as complainant
Manguben both had received injuries. It is further useful
to note here that prior to 15/1/95, in no document
produced by the claimants, the reference of truck
No.G.Q.D.4647 is given. It is useful to note here that in
the inquest panchnama of Ex.28 the crime register
number of the offence registered in connection of the
occurred accident on 20/11/94 has not been mentioned.
This inquest panchanama of Ex.28 has been drawn on
25/11/94. In the claim petition of Ex.1 on first
paragraph of page No.6, it has been mentioned that for
this occurred accident in city police station, the crime has
been registered, bearing crime registration No.I-239/94.
In charge sheet of Mark 21/4 no such Patan city crime
register No.I-239-94 is mentioned. In this charge sheet of
mark 21/4 the crime register Number is shown as
"Patan City Police Station Crime Register No.259/94". In
P.M. Report of Ex.26 no reference of crime register
number is mentioned, in this P.M.report of Ex.26 it is
stated that the Head constable Shri Chimangiri, base
No.1115, Civil hospital, Mahesana had sent the dead
body of deceased Abherajbhai D. Chaudhri for the
postmortem. At this stage, it is necessary to note here
that in the claim petition of Ex.1 it has been stated that
this deceased Abherajbhai Chaudhri was died during
the treatment in the hospital of Dr.Mahesh Trivedi on
25/11/94. In other words, we can say that no authority
was informed in regard to occurred accident in which as
pleaded the deceased Abherajbhai had received injury
and had subsequently died. In view of the claim petition
of Ex.1, after accident, this deceased Abherajbhai was
removed to the hospital of Dr. Mahesh B. Trivedi,
Mahesana.
6]. On strength of the complaint lodged by Messers
Manguben Ambaram Raval in the city police station,
Patan, crime bearing registration No.I-259/94 was
registered and on strength of the complaint lodged by
Manguben which is on record at Ex-24, panchnama of
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scene of occurrence of Ex.25 was drawn on 21/11/94,
the place of occurrence was shown by Rameshji Keshaji
who was riding bicycle at the time of an accident and on
carrier of this bicycle the complainant Manguben was
sitting. In panchnama of scene of occurrence produced
on record at Ex.25 no reference has been given in
connection of the vehicle truck No.GQ.D.4647 and at the
time of drawing this panchnama, the bicycle in damaged
condition was found at the place of occurrence.
Now let us see, how and when the number of motor
truck No.GQD.4647 has come in picture or brought on
record? The complainant Manguben has lodged the
complaint of occurred accident on 20/11/94 which is on
record at Ex.24. If we go through this complaint of Ex.24.
The statement of this Manguben has been recorded
below this complaint of Ex.24 on 15/1/95 and in
statement of this Manguben recorded on 15/1/95, it is
stated that this truck No.G.Q.D.4647 had dashed behind
the scooter No.G.A.Q.3725 for the first time. In other
words, the number of truck No. G.Q.D 4647 has come in
picture after more than 51 days of accident occurred on
20/11/94 and in this case, this complainant Manguben
has not been examined to prove the factum of occurred
accident. The driver of the scooter No.G.A.Q.3725
Pratapbhai is also examined to prove the occurred
accident, to show how and in which manner, this
accident has occurred. It is further useful to note here
that in Patan City Police Station crime register No.I-
259/94 which was registered on basis of the complaint
lodged by Manguben Raval, opponent No.1 Maljibhai
Jivanbhai Desai was arrested by the police on 30/1/95
and this present claim petition has been submitted on
court on 26/6/95 i.e. after arrest of the opponent No.1
Maljibhai Jivanbhai Desai on 30/1/95.
When in the case on hand, the driver, an owner
and insurance company of scooter No.G.A.Q.3725 are
not joined as opponents to the proceedings on which this
deceased Abherajbhai was pillion rider and in absence
in evidence, it is difficult to presume, whether this
scooter No.G.A.Q.3725 was insured with any insurance
company or not?
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In order to prove this claim petition, one of the
claimants Umiyaben Abherajbhai Dalsangbhai Chaudhri
has submitted her affidavit at Ex.22 under Order 18
Rule 4 of C.P.C. by way of examination in chief and this
claimant Umiyaben is cross examined on behalf of the
insurance company. In her cross examination, this
claimant Umiyaben has admitted that she is not an eye
witness to the occurred accident on the documentary as
well as ocular evidence brought on record, it is difficult to
accept that this deceased Abherajbhai is died in the
accident occurred on 20/11/94 and this accident has
occurred due to rashness and negligence on part of the
opponent No.1 Maljibhai Jivanbhai Desai who is driver of
truck No.G.Q.D.4647. It is also not satisfactorily proved
that in this accident, this truck No.GQ.D.4647 is involved
and it has dashed behind the scooter No. G.A.Q.3725 on
which deceased Abherajbhai was pillion rider. Hence in
the facts and circumstances of the case, the claimants
are failed to prove that this accident has occurred due to
rashness and negligence on part of the opponent No. 1
i.e. driver of truck No.GQ.D.4647 and therefore, issue
No.1 is answered in negative."
9. This Court on re-appreciation of evidence does not find any
error much less error of understanding the facts of the case or
evidence or law. The appeal, therefore, sans merit and deserves
to be dismissed. However, while dismissing the appeal, what
could be set aside is recovery right given to the Insurance
Company for recovering the amount of interim relief granted
under Section 140 of the Motor Vehicle Act, 1988. For the
foregoing reasons, the appeal is dismissed. The recovery right
given to the Insurance Company to recover the amount of
interim relief granted under Section 140 of the Motor Vehicle
Act, 1988 is hereby set aside. Registry is directed to send back
the record and proceedings to the concerned Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
