Gujarat High Court
Deviben @ Bhikhiben Wd/O Dahyabhai ... vs Sureshkumar Jaysing Tiwari on 21 January, 2025
NEUTRAL CITATION
C/FA/2948/2010 ORDER DATED: 21/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2948 of 2010
With
R/FIRST APPEAL NO. 2949 of 2010
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DEVIBEN @ BHIKHIBEN WD/O DAHYABHAI BHIKHABHAI AAHIR
AND D/O & ORS.
Versus
SURESHKUMAR JAYSING TIWARI & ORS.
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1,2,3
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 21/01/2025
COMMON ORAL ORDER
1. Since both the First Appeals filed u/s 173 of the Motor
Vehicles Act, 1988 (in short "the Act") arise out of selfsame
accident having judgment and award in two different MACP
being MACP Nos.170 of 1992 and 171 of 1992 filed u/s 166 of
the Act and dismissing both the petitions by judgments and
award dated 08.05.2009 passed by the learned MACT (Main),
Surat, they are being disposed of by this common order.
2. Brief facts of the case are as under :
2.1 The brief fact of the present appeal is such that on
12.12.1991, the deceased persons were travelling in Tempo
No.GJ-5-T-2314 and was going towards Kamrej Cross roads.
When they reached near the place of accient, one Truck No.HR-
29-B-4212 came in rash and negligent manner and dashed with
the tempo on right side. As a result, the accident took place and
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deceased persons sustained severe injuries and succumbed to
the injuries. The legal heirs of the deceased persons have filed
aforestated claim petitions under Section 166 of the Motor
Vehicle Act, 1988 claiming compensation of Rs.2,00,000/- and
Rs.4,00,000/-, respectively. The learned Tribunal vide impugned
judgments and award dated 08.05.2009 has dismissed both the
claim petitions. Hence, the present appeals.
3. Heard learned advocates for the respective parties and
perused the record and proceedings. It is a classic case where
the learned Tribunal ignored the phrase "use of motor vehicle"
employed in Section 165 of the Motor Vehicle Act, 1988.
Noticeably, the deceased were occupants of Tempo No.GJ-5-T-
2314 which was dashed with Truck No.HR-29-B-4212. It is a
case of composite negligence. Yet learned Tribunal in absence of
driver, owner and insurer of both vehicles decided inter se
negligence of both the wrong doers and believed that the driver
of tempo is fully negligent in causing the road accident to
exonerate driver, owner and insurer of Truck No.HR-29-B-4212.
The approach of the learned Tribunal is expected to be
benevolent as Section 168 of the Motor Vehicle Act, 1988
mandates to grant just and fair compensation to the person
having lost limb or life from the road accident.
4. In case of N. K. V. Bros (P) Ltd vs M. Karumai Ammal
And Ors - 1980 (3) SCC 457, the Hon'ble Supreme Court held
as under :
"3. Road accidents are one of the top killers in our
country, specially when truck and bus drivers operate
nocturnally. This proverbial recklessness often
persuades the courts, as has been observed by us
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earlier in other cases, to draw an initial presumption in
several cases based on the doctrine of res ipsa loquitur.
Accidents Tribunals must take special care to see that
innocent victims do not suffer and drivers and owners do
not escape liability merely because of some doubt here or
some obscurity there. Save in plain cases, culpability
must be inferred from the circumstances where it is fairly
reasonable. The court should not succumb to niceties,
technicalities and mystic maybes. We are emphasising
this aspect because we are often distressed by transport
operators getting away with it thanks to judicial laxity,
despite the fact that they do not exercise sufficient
disciplinary control over the drivers in the matter of
careful driving. The heavy economic impact of culpable
driving of public transport must bring owner and driver
to their responsibility to their 'neighbour'. Indeed, the
State must seriously consider no- fault liability by
legislation. A second aspect which pains us is the
inadequacy of the compensation or undue parsimony
practised by tribunals. We must remember that judicial
tribunals are State organs and Article 41 of the
Constitution lays the jurisprudential foundation for state
relief against accidental disablement of citizens. There is
no justification for niggardliness in compensation. A third
factor which is harrowing is the enormous delay in
disposal of accident cases resulting in compensation,
even if awarded, being postponed by several years. The
States must appoint sufficient number of tribunals and
the High Courts should insist upon quick disposals so
that the trauma and tragedy already sustained may not
be magnified by the injustice of delayed justice. Many
States are unjustly indifferent in this regard."
5. In the case of Mathew Alexander vs. Mohammed Shafi
and another - 2013 (13) SCC 510, the Hon'ble Supreme Court
has held as under :
"9. Insofar as the claim petition filed by the Appellant
herein is concerned, alleged negligence on the part of the
driver of the tanker lorry and pickup van in causing the
accident has to be proved. That is a matter which has to
be considered on the basis of preponderance of the
possibilities and not on the basis of proof beyond
reasonable doubt. It is left to the parties in the claim
petitions filed by the Appellant herein or other claimants
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to let in their respective evidence and the burden is on
them to prove negligence on the part of the driver of the
Alto car, the tanker lorry or pickup van, as the case may
be, in causing the accident. In such an event, the claim
petition would be considered on its own merits. It is
needless to observe that if the proof of negligence on the
part of the drivers of the three vehicles is not established
then, in that event, the claim petition will be disposed of
accordingly. In this context, we could refer to judgments
of this Court in the case of N.K.V. Bros. (P) Ltd. vs. M.
Karumai Anmal reported in AIR 1980 SC 1354, wherein
the plea that the criminal case had ended in acquittal
and that, therefore, the civil suit must follow suit, was
rejected. It was observed that culpable rashness under
Section 304-A of IPC is more drastic than negligence
under the law of torts to create liability. Similarly, in
(2009) 13 SCC 530, in the case of Bimla Devi vs.
Himachal Road Transport Corporation ("Bimla Devi"), it
was observed that in a claim petition filed under Section
166 of the Motor Vehicles Act, 1988, the Tribunal has to
determine the amount of fair compensation to be granted
in the event an accident has taken place by reason of
negligence of a driver of a motor vehicle. A holistic view
of the evidence has to be taken into consideration by the
Tribunal and strict proof of an accident caused by a
particular vehicle in a particular manner need not be
established by the claimants. The claimants have to
establish their case on the touchstone of preponderance
of probabilities. The standard of proof beyond
reasonable doubt cannot be applied while considering
the petition seeking compensation on account of death or
injury in a road traffic accident. To the same effect is the
observation made by this Court in Dulcina Fernandes vs.
Joaquim Xavier Cruz, (2013) 10 SCC 646 which has
referred to the aforesaid judgment in Bimla Devi."
6. Perusal of the impugned judgment along side the evidence
on record indicates that before learned Tribunal driver of either
of the wrong doer i.e. drivers of vehicles involved in the road
accident did not appear. Learned Tribunal taken up FIR,
panchnama etc. for deciding the inter se negligence of the wrong
doer and ignored the oral evidence of the claimants. Even
principle of res ipsa loquitor is not observed in its fullest sense.
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Perusal of para 13 and 14 of the impugned judgment indicates
that learned Tribunal having believed that both vehicles were on
the middle of the road assessed the evidence not on touchstone
of preponderance of probabilities and decided the claim petitions
as if deciding the litigation under the adversial jurisdiction. The
error on the part of the learned Tribunal is apparent and found
to be conspicuous. Learned Tribunal was required to take
holistic view of the evidence and decide the matter accordingly
by keeping in mind that either of the wrong doer did not enter
into witness box.
7. The reasons stated hereinabove would suffice to say that
impugned judgment and award is unsustainable and requires to
be quashed and set aside and accordingly, they are quashed and
aside. Both appeals are partly-allowed. The matters are
remanded to the learned Tribunal. M.A.C.P. No.170 of 1992 and
M.A.C.P. No.171 of 1992 are restored to the Motor Accident
Claim Tribunal (Main), Surat for fresh hearing in accordance
with law, permitting both parties to lead evidence, if they so
desire and also expecting from the learned Tribunal to decide the
same within four months from the date of receipt of this order as
the matter is pertaining to 1992.
8.1 Needless to state that learned Tribunal shall not be
influenced by any observation made hereinabove but shall
assess the issue on its own merit.
8.2 Both contesting parties i.e. claimants and Insurance
Company shall remain present before learned Tribunal on
31.01.2025. Registry shall ensure that record and proceedings
of these claim petitions shall reach to the Motor Accident Claim
Tribunal (Main), Surat before 31.01.2025.
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8.3 The request of learned advocates for the claimants is also
accepted and they are permitted to join driver, owner and
insurer, if any, of Tempo No.GJ-5-T-2314. The newly joined
parties shall be served through Registered Post A.D. at the cost
of the claimants. Direct service is permitted.
(J. C. DOSHI, J)
GAURAV J THAKER
