Gujarat High Court
Sheetaldas Kevalram Chavla vs Decd Rameshbhai Punjibhai Vasava ... on 18 February, 2025
NEUTRAL CITATION
C/FA/4219/2018 ORDER DATED: 18/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4219 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 4219 of 2018
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SHEETALDAS KEVALRAM CHAVLA
Versus
DECD RAMESHBHAI PUNJIBHAI VASAVA THROUGH LH & ORS.
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Appearance:
KURVEN K DESAI(7786) for the Appellant(s) No. 1
MR NIKUNT K RAVAL(5558) for the Appellant(s) No. 1
VIDIT S SHARMA(7365) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1.1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 18/02/2025
ORAL ORDER
1. Heard learned advocate Mr. Kurven K. Desai for the
appellant. Though served, none appears for respondents.
2. Present First Appeal is filed by the appellant
challenging the judgment and award passed in MACP No.75
of 2016 filed before the learned Motor Accident Claims
Tribunal (Main), District Narmada at Rajpipla.
3. On 13.11.2015, deceased Rameshbhai Punjibhai Vasava
along with minor Apasara Harisingh Vasava and Raisinghbhai
Jatariyabhai Vasava were going on in Motorcycle bearing
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C/FA/4219/2018 ORDER DATED: 18/02/2025
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registration No. GJ.22F.1327. When they reached Umarpada
Kevdi Public Road, opponent came in Maruti Van bearing
registration No. GJ.19A.3622 at an excessive speed and
dashed with the Motorcycle, resultantly, Rameshbhai
Punjibhai Vasava died because of accidental injuries and the
pillion rider minor Apasaraben Harisingh Vasava sustained
injuries. Heirs of deceased Rameshbhai Punjibhai Vasava filed
Claim Petition being MACP No. 75 of 2016 claiming
compensation of Rs.40,00,000/-. The MACP No. 76 of 2016
came to be filed by minor Apasaraben Harisingh Vasava.
Both the claim petitions were consolidated and decided by the
common judgment and award dated 15.09.2018. Learned
Tribunal awarded Rs.5,12,960/- in favour of the deceased and
deducted Rs.1,20,000/-. The claimants of MACP No.75 of 2016
were granted compensation of Rs.3,92,960/- with cost and
interest @ 9% from the date of application till realisation
from the opponent. In MACP No.76 of 2016, learned Tribunal
awarded Rs.25,000/- as compensation.
4. Being aggrieved and dissatisfied with the impugned
judgment and award passed in MACP No.75 of 2016, the
original opponent has filed present First Appeal.
5. Learned advocate for the appellant submits that the
vehicle being Maruti Van was owned by the appellant,
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however there was no insurance coverage of the same vehicle.
After the accident and during the pendency of the MACP
proceedings as well as the proceedings pending before the
learned Magistrate Court, the settlement was arrived at
between the parties and three agreements were executed
between the parties which are produced at Exhs.-45, 46 and
47. It is submitted that pursuant to the said agreements, a
settlement was arrived at wherein it was agreed that the
claimants shall not claim any further compensation from the
appellant. The appellant paid an amount of Rs.1,20,000/- to
the claimants - heirs of deceased, however, after accepting
the amount of compensation, the claimants did not withdraw
the claim petition. It is submitted that once the issue of
compensation is settled between the parties, Tribunal ought
not to have awarded compensation in favour of the original
claimants. It is also submitted that learned Tribunal has
erred in holding the appellant negligent in occurrence of the
accident. The case of granting compensation and the
calculation which has been arrived at by learned Tribunal
are faulty and without any evidence.
6. Looking to the evidence placed on record, more
particularly, Panchnama of the place of accident, learned
Tribunal has committed an error by holding driver of the
Maruti Van 80% negligent. In absence of any material,
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learned Tribunal ought not to have awarded compensation in
favour of the claimants.
7. Considering the submission canvassed by the learned
advocate for the appellant and considering the Record and
Proceedings, the accident has occurred on 13.11.2015 and
during the pendency of the claim petition, a settlement came
to be arrived at between the parties whereby the appellant
has paid Rs.1,20,000/- towards the claim of amount. However,
considering the provision of law and more particularly,
Section 28 of the Indian Contract Act, 1872 (herein after
referred to as "Act") which prohibits any agreement in
restraint of legal proceedings. Even if any agreement is
executed between the parties restraining the other party from
initiating any legal proceedings, the agreement being void
cannot be looked into. However, considering the undisputed
fact that the appellant has paid an amount of Rs.1,20,000/-
to the claimants, learned Tribunal has deducted the said
amount from the awarded compensation. When the Maruti
Van was not insured by an Insurance Company, it is the
legal liability of the owner of the Maruti Van to compensate
the claimants by paying the amount of compensation. Except
the reliance placed upon the three agreements, nothing
contrary could be pointed out from the record which can
weigh this Court to alter the findings arrived at by learned
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Tribunal. As learned Tribunal has considered the evidence on
record and also considered the provisions of law, I do not
find any reason to interfere in the findings arrived at by
learned Tribunal.
8. Section 28 of the Contract Act is reproduced as under
which in clear terms bars any agreement restraining any
party from initiating any proceedings. Despite the agreement
being executed between the parties, that does not dis-entitles
the claimant from claiming compensation from the owner of
the offending vehicle.
"28. Every agreement, by which any party thereto is
restricted absolutely from enforcing his rights under or in
respect of any contract, by the usual legal proceedings in the
ordinary tribunals, or which limits the time within which he
may thus enforce his rights, is void to that extent.
Exception 1.-This section shall not render illegal a contract
by which two or more persons agree that any dispute which
may arise between them in respect of any subject or class of
subjects shall be referred to arbitration, and that only the
amount awarded in such arbitration shall be recoverable in
respect of the dispute so referred.
Exception 2.-Nor shall this section render illegal any contract
in writing, by which two or more persons agree to refer to
arbitration any question between them which has already
arisen, or affect any provision of any law in force for the
time being as to references to arbitration."
8.1 The proceedings under MACP are benevolent
proceedings. Resultantly, the First Appeal fails and the same
is dismissed.
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9. Record and Proceedings to be sent back to the
concerned Tribunal forthwith. Civil Application is disposed of.
(D. M. DESAI,J)
MAYA
