Gujarat High Court
Vinitaben W/O Jentibhai Mamtora vs State Of Gujarat on 5 May, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/17973/2021 ORDER DATED: 05/05/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17973 of 2021
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VINITABEN W/O JENTIBHAI MAMTORA
Versus
STATE OF GUJARAT
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Appearance:
NISHIT A BHALODI(9597) for the Petitioner(s) No. 1,2,3,4,5
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/05/2023
ORAL ORDER
1. By way of present petition, the petitioners herein have prayed for the following reliefs:
"(A) YOUR LORDSHIPS be pleased to admit and allow this petition.
(B) YOUR LORDSHIPS be pleased to pass an appropriate order/direction to quash and set aside the order of the Chairman, DLSA & Principal District Judge, Rajkot, Chairperson, Criminal Injuries Compensation Board, Rajkot in Victim Compensation Application No.10/2017 by allowing just and reasonable compensation to the applicants as per the provision of Section 357A(4) of the Cr.Pc read with sub-section (5) (6) of 357A of Cr.Pc and as per the provisions in the Gujarat Victim Compensation Scheme, 2016 against the Respondent.
(C) YOUR LORDSHIPS be pleased to pass such other and further orders may be deemed just and proper looking to the facts and circumstances of the case and in the interest of justice."
2. The briefly stated deceased - Jentibhai Mamotra - the husband of applicant No.1, father of applicant Nos.2-4 and Son of the applicant No.5, was hit by an unknown vehicle on Page 1 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined 23.12.2012. The offence came to be registered against the unknown vehicle. After thorough investigation, the police authority could not trace the offender and the offending vehicle. On 05.03.2013, 'A' summary came to be filed by the police authority, which is duly produced at Annexure - C to the petition, duly produced at page 20 to the petition. The petitioners herein are the legal dependents of deceased - Jentibhai Mamtora.
2.1 In the aforesaid facts, the petitioners herein filed Victim Compensation Application No.10 of 2017 before the District Legal Service Authority (for short 'DLSA') and the Hon'ble District Judge, Rajkot claiming compensation to the tune of Rs.30,00,000/- under section 357A (4) read with section 357A(5)(6) of the Code of Criminal Procedure under the provision of Gujarat Victim Compensation Scheme, 2016. The said application came to be dismissed by the respondent No.3
- Authority by impugned order dated 31.12.2018, which resulted into filing of the present petition.
3. Heard Mr. Nishit Bhalodi, learned advocate appearing for the petitioners and Ms. Trusha Patel, learned advocate appearing for the respondent No.3.
4. Mr. Nishit Bhalodi, learned advocate appearing for the petitioners, submitted that the petitioners herein, being dependents of the deceased - Jentibhai, are entitled to the compensation under the Victim Compensation Scheme, 2016 (for short 'the Scheme, 2016) under the provision of section 357A(4) of the Criminal Procedure Code, which provides for compensation to the victim where the offender is not traced or Page 2 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined identified. Mr. Bhalodi, learned advocate, submitted that in the facts of the present case, the offender is not traced or identified but, the victim is identified and the police authority filed 'A' summary meaning thereby that proceedings be dropped before the learned Magistrate.
4.1 Mr. Bhalodi, learned advocate, submitted that the petitioners herein are victim as per clause 2(e) of the Gujarat Victim Compensation Scheme, 2016 being dependents of deceased - Jentibhai. Placing reliance on the same, Mr. Bhalodi, learned advocate, submitted that the petitioners herein are eligible for compensation under the Gujarat Victim Compensation Scheme, 2016.
4.2 Mr. Bhalodi, learned advocate, submitted that the deceased - Jentibhai was the sole bread winner of the family of 6 persons and there are no other earning family members in the family and therefore, the petitioners herein are entitled to just and reasonable compensation.
4.3 Mr. Bhalodi, learned advocate placed reliance on the order passed by the Hon'ble Delhi High Court in case of Mohini v. State (Government of NCT of Delhi), reported in 2016 ACJ 2115. Reliance was also placed on the decision of the Hon'ble Supreme Court in case of State of Himachal Pradesh v. Ram Pal, reported in 2015 ACJ 1291. Placing reliance on the aforesaid orders, Mr. Bhalodi, learned advocate, submitted that the order impugned passed by the respondent No.3 be quashed and set aside.
5. Ms. Trusha Patel, learned advocate appearing for the Page 3 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined respondent No.3, submitted that no error could be said to have been committed by the respondent No.3 in passing the impugned order considering the fact that the respondent authority refused to entertain the said application taking into consideration the definition of victim under clause 2(e) of the Gujarat Victim Compensation Scheme, 2016 as also the concept of eligibility as defined in section 4 and section 6 of the said Scheme, 2016.
5.1 Ms. Patel, learned advocate, submitted that petitioners herein have the recourse to prefer the claim petition under Section 161 sub section (2) and (3) of the Motor Vehicles Act, 1988. Placing reliance on the same, Ms. Patel, learned advocate, submitted that bare perusal of the Motor Vehicles Act, 1988 (for short 'the Act') provides for compensation in cases of hit and run motor accidents. Ms. Patel, learned advocate, submitted that from the aforesaid, it is clear that such cases are specifically excluded from the provision of Scheme, 2016 and in view of above, the Board unanimously resolved to reject the Victim Compensation Application submitted by the petitioners and the petitioners were informed accordingly.
5.2 Placing reliance on the aforesaid, Ms. Patel, learned advocate, submitted that the petition be dismissed and that, no interference is called for under Article 226 of the Constitution of India.
Analysis
6. Having heard the learned advocates appearing for the Page 4 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined respective parties, it is apposite to refer to Section 357A of the Code of Criminal Procedure, 1973 which reads thus:
"357A. Victim Compensation Scheme:-(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer incharge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit."
7. Clause- 2(e) of the Gujarat Victim Compensation Scheme, 2016, reads thus:
"(e) "Victim" means a person who has suffered loss or injury as a result of crime and requires rehabilitation and the expression victim includes his/her dependents."
8. Clause - 4, Clause - 5 and Clause - 6 of the Gujarat Page 5 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined Victim Compensation Scheme, 2016, read thus"
"4. Eligibility.- A victim or his dependents shall be eligible for the grant of compensation if,-
(a) the perpetrator of a heinous crime is not traceable or goes unpunished after trial, but the victim is identifiable and has to incur expenses on physical and mental rehabilitation, such victim may also apply for the grant of compensation under sub-
section (4) of section 357A of the Code;
(b) the offender is not traced or identified, but the victim is identified, and where no trial takes place, such victim may also apply for grant of compensation under sub-section (4) of section 357A of the Code;
5. Procedure for grant of compensation other than acid attack.- (1) Whenever a recommendation is made by the Court under sub-sections (2) and (3) of Section 357A of the code or an application is made by any victim or his dependent under sub- section (4) of section 357A of the Code to the District Legal Service Authority or the State Legal Service Authority, as the case may be, the District Legal Service Authority or the State Legal Service Authority shall examine the case and verify the contents of the claim with regard to the loss or injury caused to victim/claimant and arising out of the reported criminal act and may call for any other relevant information necessary in order to determine genuineness of the case and occurrence of the incidence. The District Legal Service Authority or the State Legal Service Authority, as the case may be, shall award compensation within two months, in accordance with the provisions of this Scheme.
(2) The District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded to the victim or his dependents on the basis of loss caused to the victim, medical expenses incurred and to be incurred on treatment, minimum amount required for rehabilitation including such incidental charges as funeral expenses, etc. The compensation may vary from case to case depending on facts of each case.
(3) The compensation under this Scheme shall be paid subject to the condition that if the trial court while passing judgment at later date, order the accused persons to pay any amount by way of compensation under sub-section (3) of section 357 of the Code, the victim/claimant shall remit an amount equal to the amount of compensation already paid, or the amount ordered to be paid under the said sub-section (3) of section 357 of the Code, whichever is less. An undertaking to this effect shall be given by the victim/claimant before disbursal of the amount of compensation.
Page 6 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined (4) The quantum of compensation decided by the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall be disbursed to the victim or his dependents, as the case may be, from the Fund.
(5) The compensation received by the victim from the State Government in relation to the crime in question, namely, insurance, exgratia and/ or payment received under any other Act or Scheme run by the State shall be considered as a part of the compensation amount under this Scheme and if the compensation amount granted under this Scheme exceeds the payments received by the victim from collateral sources mentioned above, the balance amount shall be paid out of Fund.
(6) The case covered under the Motor Vehicles Act, 1988 (59 of 1988) wherein compensation is to be awarded by the Motor Accident Claims Tribunal, shall not be covered under Scheme.
(7) The District Legal Service Authority or the State Legal Service Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the office- in-charge of the police station or Magistrate of the area concerned, or any other interim relief as it may deem fit.
(8) The quantum of compensation to be awarded to the victim or his dependents shall not exceed the maximum limit as specified in the Schedule.
6. Procedure for grant of compensation in case of Acid attack.- (1) Whenever an application for the grant of compensation is made by victim of acid attack or his dependent, to the concerned District Legal Service Authority or the State Legal Service Authority, as the case may be, it shall examine the case of acid attack and verify the contents of the claim with regard to the loss or injury caused to acid attack victim/claimant and arising out of the reported criminal act and may call for any other relevant information necessary in order to determine genuineness of the claim and occurrence of the crime. The District Legal Service Authority or the State Legal Service Authority, as the case may be, shall award the compensation not exceeding rupees three lakhs (Rs. 3/- lakh only) out of which rupees one lakh shall be paid as an interim compensation to facilitate immediate medical attention and expenses within 15 days of the application to the District Legal Service Authority or the State Legal Service Authority, as the case may be. The balance sum upto rupees two lakhs shall be paid as expeditiously as possible and positively within two months thereafter and in accordance with the provisions of this Scheme.
(2) The District Legal Service Authority or the State Legal Page 7 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined Service Authority, as the case may be, shall decide the quantum of compensation to be awarded to victim or his dependents on the basis of loss caused to the victim, medical expenses incurred and to be incurred on for treatment, minimum amount required for rehabilitation including such incidental charges as funeral expenses, etc. The compensation may vary from case to case depending on facts of each case.
(3) While deciding the amount of compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, has to confirm that the victim has taken treatment in the Government Hospital or in the Hospital approved by the Health and Family Welfare Department, Government of Gujarat. If the victim has taken treatment in any other Hospital, then verification from concerned Civil Surgeon shall be required to decide the amount of compensation. In such case, medical expenses shall be paid to the extent of the actual expenses which would occur in the Government Hospital or in the Hospital approved by the Health and Family Welfare Department, Government of Gujarat for the same treatment.
(4) In case, while passing judgment at later date, where the court passes the order for payment of compensation to the victim/claimant by the accused person, the victim/claimant shall be required to remit an amount equal to the amount of compensation already paid or the amount ordered by the court, to the Fund.
(5) The quantum of compensation decided by the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall be disbursed to the acid attack victim or in case of death of acid attack victim to his dependent, as the case may be, from the Fund.
(6) The quantum of compensation to be awarded to the victim or his dependant shall not exceed the maximum limit of Rs. 3 lakhs (Rupees Three lakhs only)."
9. Section 161 of the Motor Vehicles Act, 1988, read thus:
"161. Special provisions as to compensation in case of hit and run motor accident. -- (1) Notwithstanding anything contained in any other law for the time being in force or any instrument having the force of law, the Central Government shall provide for paying in accordance with the provisions of this Act and the scheme made under sub-section (3), compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents.
(2) Subject to the provisions of this Act and the scheme made under sub-section (3), there shall be paid as compensation,--Page 8 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023
NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined
(a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of two lakh rupees or such higher amount as may be prescribed by the Central Government;
(b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of fifty thousand rupees or such higher amount as may be prescribed by the Central Government.
(3) The Central Government may, by notification in the Official Gazette, make a scheme specifying the manner in which the scheme shall be administered by the Central Government or General Insurance Council, the form, manner and the time within which applications for compensation may be made, the officers or authorities to whom such applications may be made, the procedure to be followed by such officers or authorities for considering and passing orders on such applications, and all other matters connected with, or incidental to, the administration of the scheme and the payment of compensation under this section.
(4) A scheme made under sub-section (3) may provide that,--
(a) a payment of such sum as may be prescribed by the Central Government as interim relief to any claimant under such scheme;
(b) a contravention of any provision thereof shall be punishable with imprisonment which may extend to two years, or with fine which shall not be less than twenty-five thousand rupees but may extend to five lakh rupees or with both;
(c) the powers, functions or duties conferred or imposed on any officer or authority by such scheme may be delegated with the prior approval in writing of Central Government, by such officer or authority to any other officer or authority."
10. Undisputedly, the petitioners herein are the dependents of deceased - Jentibhai Mamotra, having expired being hit by an unknown vehicle on 23.12.2012. The offence came to be registered against the unknown vehicle and after investigation, the police authority could not trace the offender and offending vehicle, which resulted into filing of 'A' summary by an investigating officer. The said 'A' summary report is duly Page 9 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined produced at Annexure - C to the petition.
11. In view of above, the petitioners herein filed an application seeking compensation by filing Victim Compensation Application No.10 of 2017 before the DLSA and District Judge, Rajkot, claiming compensation of Rs.30,00,000/- under section 357A(4) read with section 357A(5)(6) of the Code of Criminal Procedure and under the provision of the Gujarat Victim Compensation Scheme, 2016, which came to be dismissed by the respondent No.3 by order dated 31.12.2018. It is apposite to refer to the said impugned order dated 31.12.2018, duly produced at Annexure - A, which read thus:
"CRIMINAL INJURIES COMPENSATION BOARD, RAJKOT Read: 01. The recomendation made by respective court for payment of Compensation to victims of Criminal Injuries 02
02. Section 357A of Code of Criminal Procedure.
03. The guidelines of Central Victim Compensation Fund Scheme,
04. The Gujarat Victim Compensation Scheme-2016 & Government of Gujarat Home Department Notification No. GG/79/2016/ SB.2/COM/ 132011/GAD/ 165605/ PART III Dt:
07/07/2016.
05. The applications & documents filed by the victims with applications.
06 The Minutes of the Meeting of Criminal Injuries Compensation Board held on 31.12.2018, at District Court, Rajkot.
ORDER BELOW VICTIM COMPENSATION APPLICATION NO.-2/2017 VICTIM COMPENSATION APPLICATION NO.-4/2017 VICTIM COMPENSATION APPLICATION NO.-6/2017 VICTIM COMPENSATION APPLICATION NO.-8/2017 VICTIM COMPENSATION APPLICATION NO.-10/2017 VICTIM COMPENSATION APPLICATION NO.-11/2017 VICTIM COMPENSATION APPLICATION NO.-13/2017 VICTIM COMPENSATION APPLICATION NO.-1/2018 VICTIM COMPENSATION APPLICATION NO.-2/2018 VICTIM COMPENSATION APPLICATION NO.-3/2018 VICTIM COMPENSATION APPLICATION NO.-9/2018 VICTIM COMPENSATION APPLICATION NO.-10/2018 VICTIM COMPENSATION APPLICATION NO.-15/2018 VICTIM COMPENSATION APPLICATION NO.-16/2018 VICTIM COMPENSATION APPLICATION NO.-24/2018 Page 10 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined VICTIM COMPENSATION APPLICATION NO.-29/2018 The present bunch of applications have been filed by the dependents of the victims of hit and run motor accident cases. In all the said cases, the victims have met with motor accidents which ultimately resulted in death of the victim. Further, in all these cases, the accused are not identified and the Police have alter investigation, filed closure report. Therefore, the dependents of the victims have filed present applications before DLSA to get compensation under Gujarat Victim Compensation Scheme, 2016.
First of all, the Board discussed the Law, Rules and Regulations relating to the eligibility of the applicants to get compensation in hit and run cases. The relevant portions of the legal provisions are reproduced below :
"Victim" means a person who has suffered loss or injury as a result of crime and requires rehabilitation and the expression victim includes his/her dependents.:
The concept of eligibility is defined in Clause 4 of the Gujarat Victim Compensation Scheme, 2016. The relevant portion of Clause-4 reads as under:
"the offender is not traced or identified, but the victim is identified, and where no trial takes place, such victim may also apply for grant of compensation under sub-section (4) of section 357A of the Code:"
Clause 5 of the Scheme provides procedure for grant of compensation ether than acid attack, wherein at sub-clause jej, it is laid down as under:
(6) "The case covered under the Motor Vehicles Act, 1988 (59 of 1988) wherein compensation is to be awarded by the Motor Accident Claims Tribunal, shall not be covered under Scheme."
The Motor Vehicles Act, 1988 given recourse for compensation in hit and run motor accident cases. The relevant portion i.e. sub-section (2) 5 (3) of Section :61 of the Motor Vehicles Act provides as under:
"161 (2) Notwithstanding anything contained in any other law for the time being in force or any instrument having the force of law, the Central Government shall provide for paying in accordance with the provisions of this Act and the scheme made under sub-section (3), compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents.
(3) Subject to the provisions of this Act and the scheme made under sub-section (3), there shall be paid as compensation,--
(a) in respect of the death of any person resulting from a Page 11 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined hit and run motor accident, a fixed sum of two lakh rupees or such higher amount as may be prescribed by the Central Government;
(b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of fifty thousand rupees or such higher amount as may be prescribed by the Central Government.
Therefore, there is clear provision in the Motor Vehicles Act for compensation in cases of hit and run motor accidents. These cases are specifically excluded from the purview of the Gujarat Victim Compensation Scheme, 2016.
Hence, the Board unanimously resolved that all these bunch of applications are to be filed and the applicants be informed accordingly.
The DLSA, Rajkot, is directed to do necessary correspondence and inform the victim/applicant with regard to the order of the Board.
This award/order is pronounced on 31st December, 2018."
12. Considering the impugned order passed by the respondent No.3 dated 31.12.2018 and the provisions of law as referred above and the Scheme, 2016 and the facts of the present case as also considering section 357A(4) of the Code of Criminal Procedure, it appears that in the facts of the present case, the offender was not traced or identified but, the victim was identified. The petitioners herein are the dependents of the deceased - Jentibhai, who in view of this Court, fall within the purview of the definition of the victim which includes dependents of the victim. The petitioner No.1 herein is the wife, petitioner Nos.2 - 4 are the children and petitioner No.5 is the mother of the deceased - Jentibhai.
13. Clause - 4 of the Scheme, 2016 provides that the victim or his dependents shall be eligible for the grant of compensation if, the offender is not traced or identified but, the victim is identified, and where no trial takes place, such Page 12 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined victim shall apply for grant of compensation under Section 357A(4) of the Code.
14. Section 161 sub-section (5) and (6) of the Motor Vehicles Act, 1988 provides for cases covered under the Motor Vehicles Act wherein, compensation can be awarded by the Claims Tribunal.
14.1 Considering the fact that the Section 6 of the Scheme, 2016 pertains to the grant of compensation in case of acid attack victims, Section 5 in absence of the offender or the offending vehicle, the case of the petitioner, in the opinion of the this Court, be considered under the Scheme, 2016 and the bar under sub-clause (6) of Section (5) of the Scheme, 2016 under Section 161 of the Act would not in any way result into non consideration of the petitioner's case under the Scheme, 2016. The bar under sub-section (6) of Section (5) of the Scheme, 2016 under Section 161 of the Act shall not be applicable in the facts of the present case. It is provided in sub- section (2) of Section 5 that the quantum of compensation to be awarded to the victim or his dependents on the basis of loss caused to the victim, medical expenses incurred and to be incurred on treatment, minimum amount for rehabilitation including such incidental charges as funeral expenses etc.. Further, considering the amendment carried out in schedule by Home Department by a notification dated 07.07.2016, in case of death, the minimum amount of compensation is Rs.2,00,000/-.
14.2 Further, in absence of the offender or the offending vehicle, the compensation under the Solatium Scheme, 1989 Page 13 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined under Section 163(1) of the Motor Vehicles Act, 1988, the Central Government exercising powers conferred under Section 163(1) of the Motor Vehicles Act, 1988 (59 of 1988), which is a scheme for payment of compensation to the victims of hit and run motor accident, also would not be a bar for consideration of the case of the petitioner herein under the Scheme, 2016 in view of the fact that the offending vehicle or the offender is not traceable.
15. At this stage, it is apposite to refer to the decision rendered by the Hon'ble Delhi High Court in case of Mohini v. State (Government of NCT of Delhi), reported in 2016 ACJ 2115, wherein para 20 reads thus:
"20. In view of the above legal position, Clause 4 of the Scheme has to be interpreted so as not to defeat the object of the Scheme. The Scheme read with Section 357A of Cr.P.C. envisages that the victim or the dependent should receive just compensation. To knock out an applicant under the Scheme merely because some meager or token compensation was received by the applicant under some other statutory provisions would be unfair and contrary to the very object of the Scheme. Clause 4 is added to ensure that no victim or dependent gets a bonanza or largesse. It is not intended to inflict injury. Clause 4 has to be read conjointly and would have to take its colour from Section 357A Cr.P.C. read with Clause 5 and Schedule to the Scheme. Reading Clause 4 of the Scheme in this manner would mean that the victim can be said to "have been compensated for the loss and injury" from some other scheme when he has received compensation equivalent to or more than what is the minimum stipulated in the Schedule to the Scheme. Such an applicant would not be entitled to receive any compensation under the present Scheme. However, where the amount received is less than the minimum stipulated under the Schedule, it cannot be said that he has been compensated for the loss and injury and the concerned authority shall grant appropriate compensation under the Scheme but taking into account the amount of compensation already received by the victim/dependent."
16. In view of above, in the facts of the present case, the application is required to be considered under the provision of the Gujarat Victim Compensation Scheme, 2016, which is Page 14 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023 NEUTRAL CITATION C/SCA/17973/2021 ORDER DATED: 05/05/2023 undefined preferred by the petitioners herein under the provision of Section 357A(4) of the Code of Criminal Procedure and the respondent no.3 is required to proceed further in accordance with law. The order impugned dated 31.12.2018 passed by the respondent No.3 is required to be quashed and set aside mainly, on the ground that the petitioners herein cannot be non-suited on the ground that the incident-in question is hit and run case and therefore, an application under Section 161 of the Motor Vehicles Act, 1988 be filed before the Claims Tribunal. Further, the said order passed by the respondent No.3 can be said to be a non-speaking order wherein there is no discussion with regard to the alleged incident where the victim is traceable and the offender is not traceable. In absence of aforesaid discussion, the respondent No.3 has proceeded to pass the impugned order relegating the petitioners herein to avail the remedy under the Motor Vehicles Act, 1988.
17. In view of the aforesaid discussion, the petition is allowed in part. The impugned order dated 31.12.2018 is hereby quashed and set aside. The petitioners herein are relegated to the respondent authority and the respondent authority to decide the application filed by the petitioners herein being Victim Compensation Application No.10 of 2017 taking into consideration the Gujarat Victim Compensation Scheme, 2016 in accordance with law.
(VAIBHAVI D. NANAVATI,J) NEHA Page 15 of 15 Downloaded on : Sat Sep 16 19:13:56 IST 2023