Gujarat High Court
Shambhubhai Chimanlal Prajapati Since ... vs Jashubhai Budhabhai Parmar on 18 February, 2025
NEUTRAL CITATION
C/FA/3122/2009 ORDER DATED: 18/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3122 of 2009
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SHAMBHUBHAI CHIMANLAL PRAJAPATI SINCE DECD. THROUGH HEIRS
& ORS.
Versus
JASHUBHAI BUDHABHAI PARMAR & ORS.
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Appearance:
MR MR PRAJAPATI(1532) for the Appellant(s) No. 1,1.1,1.2,1.3
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 18/02/2025
ORAL ORDER
1. Heard learned advocate Mr. M. R. Prajapati for the
appellants, Ms. Masumi Nanavati for the respondent No.2
and Mr. Palak H. Thakkar for the respondent No.4. Though
served, none appeared for respondent No.3. Rule could not be
served upon respondent No.1.
2. Present First Appeal is filed by the appellant - original
claimant challenging the disposal of the claim petition by the
learned Motor Accident Claims Tribunal (Main), Gandhinagar
wherein the claimant has been found negligent 100% in the
occurrence of accident.
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3. Learned advocate for the appellant has submitted that
though learned Tribunal has erred in not considering the
policy in question, it is submitted that as per the policy
Mark 23/4, the risk of driver is covered. It is submitted that
though the claimant has been found negligent, as per the
decision of the Full Bench of this Court in the case of
Valiben Laxmanbhai Thakore (Koli) Wd/o Late Laxmanbhai
Ramsingbhai Thakore v. Kandla Dock Labour Board, the
Tribunal ought to have awarded compensation in favour of
the claimant. It is further submitted that though the ground
of challenge of covering or non-covering the risk is not raised
before the Learned Tribunal as well as before this Court, he
may be permitted to raise this legal contention. It is further
submitted that so far as the negligence is concerned, the
appellant/claimant is accepting the findings of 100%
negligence of the claimant in the occurrence of accident.
However, on the grounds of quantum, the appeal may be
remanded back to the concerned learned Tribunal. Reliance is
also placed by the learned advocate for the claimant in the
decision of the Coordinate Bench of this Court in the case of
Valji Aatu Maheshwari Vs. Ibrahim Ramju Kumbhar & Ors.
reported in First Appeal No.478 of 2018 wherein the
Coordinate Bench has also considered the decision of Valiben
(supra) and has remanded back the matter.
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4. Per contra, learned advocate Ms. Masumi Nanavati
submits that if the matter is remanded back, the Insurance
Company may be permitted to lead the evidence and
submitted that the judgment and award passed by learned
Tribunal is just and proper.
5. Learned advocate Mr. Palak H. Thakkar for respondent
No.4 - Insurance Company of the Truck submitted that the
risk of the driver is not covered under the policy and
therefore, the findings arrived at by the learned Tribunal is
correct and may not be interfered with.
6. Considering the submissions canvassed by learned
advocates for the parties and on perusal of the policy of the
Truck bearing No. GQD-4854, it indicates that premium
covering the risk of the driver has been accepted by the
Insurance Company and therefore the risk of the driver is
covered under the policy of insurance. When this Court is
satisfied with the evidence that the risk of the driver is
covered under the policy, the learned Tribunal ought to have
calculated the compensation on the basis of evidence available
on record. Considering the decision of Valiben (supra) in para
15, the same issue was cropped up before the coordinate
bench of this Court in the case of Valji Aatu Maheshwari
(supra) wherein the Coordinate Bench has also taken into
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C/FA/3122/2009 ORDER DATED: 18/02/2025
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consideration the decision of Valiben and thereafter remanded
the proceedings to the Tribunal to consider the issue of
awarding compensation in respect of the accident.
7. In view of the aforesaid settled position of law, I am of
the view that it would be in the interest of justice if the
matter is remanded back to the learned Tribunal to decide
the quantum on the basis of evidence which is already
available before the learned Tribunal. As learned advocate for
the appellant has fairly admitted that the claimant -
appellant has admitted the negligence to the extent of 100%
in the occurrence of accident. Learned Tribunal is not
required to go into the question of negligence while deciding
the negligence on either of the parties. It is further clarified
that the learned Tribunal shall decide the issue of quantum
without being influenced by the observations made herein
after and shall decide independently relying upon the
evidence already available on record. So far the question of
awarding interest for the period of appeal is concerned, it is
left open to the learned Tribunal to decide on the basis of
submissions that may be urged by respective parties before
the Learned Tribunal.
8. It is further submitted that after the pronouncement of
the judgment and award, the original claimant Shambhubhai
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Chimanlal Prajapati has passed away and the heirs of the
deceased has preferred the present First Appeal.
9. While deciding the issue of quantum, both the parties
are permitted to raise respective contentions. The First
Appeal is allowed accordingly.
10. The exercise of deciding the question of quantum
shall be decided preferably within a period of three months
from the date of the receipt of the order. Both the parties
are directed to cooperate the learned Tribunal without asking
for unnecessary adjournments.
11. Record and Proceedings to be sent back to the
concerned Tribunal.
12. The finding of negligence is hereby confirmed. First
Appeal is allowed and disposed of in view of the above
observations.
(D. M. DESAI,J)
MAYA
