[Cites 3, Cited by 0]
Gujarat High Court
Simkiben Bhanabhai Rathod vs Mustakkhan Shafikhan Pathan on 25 March, 2026
NEUTRAL CITATION
C/FA/142/2015 JUDGMENT DATED: 25/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 142 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE --Sd/-
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Approved for Reporting No Yes
No
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SIMKIBEN BHANABHAI RATHOD & ANR.
Versus
MUSTAKKHAN SHAFIKHAN PATHAN & ORS.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 25/03/2026
ORAL JUDGMENT
1. Heard Mr. Hiren Modi, learned advocate on record for
the appellant - original claimants. Mr. Rathin P. Raval,
learned advocate has entered appearance on behalf of
respondent no.3 - insurance company.
2. The record indicates that rule of admission of appeal is
duly served upon respondent nos.1 and 2, who are the driver
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and owner of the offending vehicle alleged to be involved in
the accident. Despite service of rule, the said respondents
have chosen not to appear and contest the present appeal.
With the able assistance of learned advocate on record, the
appeal is heard finally.
3. The present appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 at the instance of the original
claimants, being aggrieved and dissatisfied with the judgment
and award dated 24th September, 2014, passed by the learned
Motor Accident Claims Tribunal (Main), Surat in Motor
Accident Claim Petition no.296 of 2007. By the said judgment
and order, the Tribunal has dismissed the claim petition
preferred by the original claimants under Section 166 of the
Act of 1988 mainly on the ground that the claimant have failed
to prove the involvement of the offending vehicle in the
accident and therefore the issue of negligence and quantum of
compensation has been rendered redundant.
4. The learned advocate has vehemently submitted that the
Tribunal committed grave error in dismissing the claim
petition despite sufficient material being brought on record. It
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was pointed-out that the claimants along with the claim
petition have produced the copy of the Suchi Patra issued by
the concerned Police Station at Exh.21, the copy of the FIR
lodged before the Rander Police Station at Exh.22, the copy of
the Panchnama of the place of accident at Exh.23. Apart from
the aforesaid documentary evidence laid on record by the
claimants, the son of the deceased has entered the witness
box and has categorically deposed on oath that his father was
hit by the offending vehicle i.e. Luxury bus bearing
registration no. GJ-15 U-3399. It was further pointed-out that
in cross-examination, the aforesaid evidence of the claimant
has remained uncontroverted despite being cross-examined
by the counsel for the respondent - insurance company.
Learned advocate had further submitted that even on close
reading of the written statement submitted by the insurance
company at Exh.18, it is evident that no defense with regard
to the dispute of involvement of the offending vehicle has
been raised by the respondent - insurance company. On the
contrary, the insurance policy of the alleged offending vehicle
has been produced on record by the respondent - insurance
company with list at Exh.36 and has been admitted as an
evidence at Exh.37.
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4.1 It was further pointed-out that despite service of
summons upon the driver and owner of the vehicle involved in
the accident, they have chosen not to appear and contest the
claim petition. In such circumstances, according to learned
advocate, there was no rebuttal to the evidence led by the
claimant prima facie establishing their case of involvement of
the Luxury bus no.GJ-15 U-3399.
4.2 Learned advocate had further invited my attention to the
findings and reasons assigned by the Tribunal and has
submitted that the Tribunal on its own has entered into the
issue of involvement of the vehicle and has recorded that in
absence of any corroborative material in the nature of charge-
sheet being produced on record in light of the fact that the
FIR was registered by a complainant who was an hearsay
witness, has doubted the involvement of the vehicle and has
thereby drawn erroneous conclusion that the claimants have
failed to not only prove the involvement of the vehicle but
there is no reason for examining the issue of negligence. It
was further submitted that in view of the Rule-211 of the
Gujarat Motor Vehicles Rules, 1989, the documents which are
mandatory required to be produced on record includes the
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FIR in respect of the accident, the medical certificate of
injuries or the postmortem report or the death certificate and
a certificate regarding ownership and insurance particulars of
the vehicle involved in the accident from the Regional
Transport Officer or the Police Station concerned. Learned
advocate had therefore submitted that the claimants have
complied with the aforesaid rule by placing on record the
requisite documents along with the claim petition. It was
further submitted that recently the details of charge-sheet
were sought for from the claimant, wherein it has transpired
that at the end of the investigation, the charge-sheet was filed
against the respondent no.1 - driver of the vehicle alleged to
have involved in the accident, which was registered as
Criminal Case no.6500 of 2007 before the Court of Civil Judge
and Judicial Magistrate First Class, Surat. The criminal case
was registered on 21st March, 2007. In order to assist the
Court, learned advocate had placed on record the online case
status details available from the official website of the
concerned Court. Referring to the aforesaid case status
details, learned advocate had stated that unfortunately the
prosecution had failed to serve the process upon the accused
and the learned Magistrate, therefore, in exercise of power
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conferred under Section 258 of the Code of Criminal
Procedure, had proceeded to dismiss the criminal case for
non-prosecution vide order dated 2nd May, 2022. However,
learned advocate had submitted that the fact remains that
charge-sheet has been filed against the driver of the alleged
vehicle and therefore he may be extended one opportunity to
lead further evidence on record before the Tribunal by
remanding the matter back to the Tribunal for fresh
consideration.
4.3 It was lastly submitted that considering the benevolent
scheme of the Act, the claimant who are duly pursuing the
matter for so many years, may not be deprived of the benefit
of the scheme, who have lost their dear ones in the motor
vehicle accident.
5. Per contra learned advocate appearing for the
respondent - insurance company was unable to dispute the
submission made by learned advocate for the appellant as
regards no challenge being made to the averments made in
the claim petition with regard to the involvement of the
vehicle vis-a-vis the liability of the insurance company in the
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written statement. Learned advocate had therefore fairly
submitted that the matter may be remanded to the Tribunal
for fresh consideration, however they may also be given
opportunity to lead appropriate evidence in support of their
defense.
6. Having heard the learned advocates appearing for the
respective parties and having appreciated their submissions in
light of the findings and reasons assigned by the Tribunal, the
only question which arises for consideration is as to whether
the Tribunal committed any error in dismissing the claim
petition filed under Section 166 of the Motor Vehicles Act ,
1988, in the facts of the case and the evidence brought on
record?
7. In order to appreciate the submissions made by learned
advocate for the appellant, I have closely perused the findings
and reasons assigned by the Tribunal and I have also carefully
re-appreciated the evidence on record. As rightly pointed-out
by learned advocate for the appellant a specific averment has
been made by the claimants in the claim petition with regard
to the manner in which the accident had taken place and the
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involvement of the specific vehicle i.e. the Luxury bus bearing
registration no. GJ-15 U-3399. Even in the examination-in-
chief affidavit tendered by the claimant no.2 before the
Tribunal which is marked as Exh.27, it has been categorically
stated on oath that the accident was caused due to rash,
negligent driving of the driver of the Luxury bus bearing
registration no.GJ-15 U-3399 which had caused death of his
father. On appreciation of the cross-examination of the said
witness, as rightly noted by the learned Tribunal, the
insurance company for the reasons best known to them have
choose not to contradict the aforesaid fact by putting any
question to the said witness. Even on close appreciation of
the contents of the written statement filed by the respondent -
insurance company at Exh.18, the only averment which
appears disputing their liability is to the extent that "the said
vehicle involved in the accident was not fit or roadworthy and
that is the reason for the accident and in such circumstances,
insurance company cannot be held liable to pay any amount of
compensation to the claimant."... Para-8. Without prejudice to
the above averments, the insurance company further submit
as under : "All particular shown in the petition regarding the
accident are not true and the applicant must prove accident
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and involvement of vehicle say to be insured with opponent
no.3 by reliable documentary evidence."
8. Thus, a general defense has been raised by the
respondent - insurance company disputing the involvement of
the vehicle in the accident. With such evidence on record, the
Tribunal has further appreciated the FIR produced on record
at Exh.22 and the panchnama at Exh.23. The Tribunal has
noted that the complaint was lodged by one Pravinbhai who
appears to be a hearsay witness and not an eye witness to the
incident. With such averment noted in the FIR, the Tribunal
has sought for further corroboration with regard to
involvement of the vehicle by appreciating the panchnama of
the place of accident. On bare appreciation of the
panchnama, it does not indicate the presence of the alleged
vehicle at the spot of accident. Thus, in absence of any cogent
proof of the involvement of the vehicle, the Court has
proceeded to dismiss the claim petition without further
entering into the issue of negligence, quantum of
compensation.
9. Having noted the aforesaid findings and reasons
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assigned by the Tribunal, in absence of any contradiction
being pointed-out by the learned advocates on record, as such
there is no reason for this Court to interfere with the
impugned judgment and order. However, considering the fact
that the learned advocate has placed on record the case
details of the Criminal Case no.6500 of 2007 being tried
against the said driver of the alleged vehicle involved in the
accident, though subsequently being dismissed for want of
prosecution, a case for remand is made-out by the appellant
for reconsideration of the matter afresh. Despite sufficient
time being given to the learned advocate for the appellant, the
appellant have failed to produced on record the entire charge-
sheet papers for re-appreciation. However, the fact remains
that the investigation of the FIR had culminated into filing of
charge-sheet against the driver of the alleged vehicle involved
which has further been tried as Criminal Case no.6500 of
2007.
10. Considering the benevolent scheme of the Act, this Court
is inclined to remand the matter back to the concerned
Tribunal, however, with a word of caution. Considering the
fact that the accident relates to year 2007, the claim petition
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being filed in the year 2007, being dismissed in the year 2014
and the captioned appeal being adjudicated finally in the year
2026, the claimants are directed to diligently pursue the
matter before the Tribunal without seeking unnecessary
adjournment. Considering he overall circumstances on
record, the appeal is hereby allowed.
11. The impugned judgment and order dated 24 th
September, 2014 passed by the Motor Accident Claims
Tribunal (Main), Surat in MACP no.296 of 2007 is hereby
quashed and set aside. The MACP no. 296 of 2007 is directed
to be restored to its original file before the concerned
Tribunal. On restoration of the claim petition, the claimant
shall be at liberty to produce on record the additional
evidence in the nature of charge-sheet as prayed for before
this Court. On production of such documents or any witness
being examined in this regard by the claimant, the respondent
- insurance company shall be at liberty to lead further
evidence.
12. It is further directed that let the claim petition be
decided finally within period of eight months from the date
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of receipt of writ of this order. It is clarified that this Court
has not opined on the merits of the case and the Tribunal shall
adjudicate on all the issues independently, in accordance with
law and in light of the evidence brought on record.
13. With these observations, the First Appeal stands
allowed to the aforesaid extent. The R. & P. are directed
to be sent back forthwith to the concerned Tribunal with the
writ of this judgment.
Sd/-
(NISHA M. THAKORE, J.)
AMAR RATHOD.../sfs/25.03
