Gujarat High Court
Shaktabhai Ramabhai Patel vs Meghabhai Bhemabhai Patel on 31 August, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/1788/2022 JUDGMENT DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1788 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHAKTABHAI RAMABHAI PATEL
Versus
MEGHABHAI BHEMABHAI PATEL
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/08/2023
ORAL JUDGMENT
1. The claimant has challenged the judgment of dismissal passed in M.A.C.P. No.3417 of 2009 by Motor Accident Claims Tribunal (Auxi.), Page 1 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined Banskantha at Deesa on 29.11.2021, which was originally recorded as M.A.C.P. No.484 of 2007. The notice has been served for final hearing, but none has appeared for the respondents.
2. Advocate Mr. Vishal C.Mehta for the appellant submitted that the Tribunal has erred in not appreciating the materials and the documents on record and has erred in disbeliving the rash and negligent driving on the part of the driver of the offending motorcycle, and has erred in not appreciating the fact that the complaint, Exh.37, was filed by the motorcyclist himself, who was driving in excessive speed and due to sudden application of the brakes, the accident had led to injuries sustained by the claimant. 2.1 Advocate Mr. Mehta submitted that the respondent no.3's version, as a driver of the offending vehicle, gets corroborated in the Page 2 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined panchnama at the place of accident, at Exh.38; brake marks are clearly mentioned, which proves the excessive speed and rash and negligent driving. Advocate Mr. Mehta further stated that the learned Tribunal ought to have considered the fact that the evidence produced on record has not been controverted by the respondents, where, in the present case, necessary documents in the form of medical evidence, complaint, panchnama, insurance policy as well as counterfoil of the charge-sheet were placed on record, and, even if documents with regard to the income was placed in support of the evidence of the claimant, which was in the form of examination-in-chief, at Exh.25. He submits that disability certificate, discharge card and case papers along with medical bills proves the fact that claimant had suffered injuries because of vehicular accident. 2.2 Advocate Mr. Mehta stated that the Page 3 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined complainant is the motorcyclist, who had not immediately filed the FIR, and according to the facts of the case, the claimant - injured, was riding on Motorcycle bearing No.GJ-8L-5831, as a pillion rider driven by complainant Maheshbhai Ranchhodbhai Patel, and were going to Radhanpur. The motorcycle was driven in full speed in rash and negligent manner and when they were on Ratanpur to Gharvadi Road, suddenly to save a dog crossing the road, the motorcyclist applied brakes and, therefore, the motorcycle got slipped and accident occurred.
2.3 Advocate Mr. Vishal Mehta submitted that the learned Tribunal has erred by dismissing the claim petition coming to conclusion that mere driving of a vehicle at a high speed would not lead to an inference that it was driven negligently and rashly to have caused accident resulting into injuries to the appellant. Page 4 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023
NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined 2.4 Advocate Mr. Mehta submitted that the Tribunal has erroneously come to a conclusion that speed is no criteria to establish the fact of rash and negligent driving and form an opinion that it was a case of speeding of vehicle which does not amount to rash and negligent driving of the motorcyclist and on that ground had avoided deciding the quantum and liability, observing that the applicant has failed to prove the issue of negligence, and, the injuries sustained were actually out of the alleged accident; hence, concluded that the applicant was not legally entitled to claim the compensation amount from the respondents.
2.5 Advocate Mr. Vishal Mehta stated that the injured claimant himself had entered into the witness box to prove the fact of rash and negligent driving. Further stated that the complaint was given by tortfeasor himself, hence, Page 5 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined the words like "rash and negligent driving" would never be incorporated in his own complaint, and, further there is no denial of the accident by respondent no.3 himself, who was the driver of the motorcycle at the time of the accident. 2.6 Referring to the judgment of Ravi Vs. Badrinarayan, reported in (2011) 4 SCC 693, Advocate Mr. Vishal Mehta submitted that the delay in lodging the FIR could not be considered as fatal in a case for compensation for the injuries sustained in the accident, submitting the delay in lodging the FIR cannot be made a ground for dismissing the claim compensation.
3. In United India Insurance Company Ltd. Vs. Shila Datta & Ors., reported in (2011) 10 SCC 509, it was observed that rule of pleadings do not strictly applied in the claim petition under Motor Vehicle Act. The Tribunal considers the Page 6 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined claim and determines the compensation, not by way of adversarial system, while summary procedure is required to be followed.
3.1 In New India Assurance Co. Ltd. Vs. G.Vijaya Kandiban & Anr., rendered by Madras High Court, it was held that, the FIR cannot be raised to pedestrial higher than the statement on oath, wherein a defense was raised that there had been no accident between two vehicles, as the claimant and the owner of the vehicles are closed friends and that the claim has been raised on collision to receive compensation from the Insurance Company.
3.2 While in Brestu Ram Vs. Anant Ram And Ors., reported in 1990 ACJ 333, it was observed that even if, there is no report to the police, no adverse inference could be drawn and it was held that Tribunal cannot draw inference as if it was trying Criminal Case.
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NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined 3.3 In Mangla Ram Vs. Oriental Insurance Company Limited And Ors., reported in (2018) 5 SCC 656, the Hon'ble Supreme Court has noted the decision of Dulcina Fernandes Vs. Joaquim Xavier Cruz, reported in (2013) 10 SCC 646, where the Court had examined the similar situation, that the evidence of claimant's eyewitness was discarded by the Tribunal, and the respondent in that case was acquitted in the criminal case concerning the accident. The Apex Court was an opinion that upon investigation of the case registered against the respondent, prima facie materials showing negligence were found to put him on trial, this fact could not be overlooked. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as has been noted in case of Bimla Devi Page 8 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined Vs. Himachal RTC, reported in (2009) 13 SCC 530. 3.4 In Mangla Ram Vs. Oriental Insurance Company Limited And Ors. (supra), the Apex Court has explained the concept of negligence in connection with the claim compensation cases in the motor vehicular accident. The relevant observation is as under:
"Negligence is only one of
the species for compensation in
respect of the accident arising
out of the use of motor vehicles. There are other premises for such cause of action. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the rule in Fletcher, Page 9 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined (1868) LR 3 HL 330 can apply in motor accident cases. Like any other common law principle, which is acceptable to out jurisprudence, the rule in Rylands case can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, said rule is adopted in claims for compensation made in respect of motor accidents."
3.5 Further referring to the standard of proof, the necessary ingress of claim petition under section 166 of the Motor Vehicle Act, the Apex Court has held as under:
"While dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair Page 10 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. The Tribunal has to take a holistic view of the matter. A strict proof of an accident caused by a particular vehicle in a particular manner may not be possible. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt cannot be applied. The approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."
4. In the present matter, the learned Tribunal appears to be carried away with the fact that the expression "rash and negligent driving"
has not been mentioned in the F.I.R., and further the complainant in his complaint had stated that his motorcycle during the night time was in full speed and in order to protect a dog on the road, Page 11 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined he had applied brakes and, therefore, the incident had occurred. The learned Tribunal on such facts of the F.I.R. was of the view that the complainant, who was driving the motorcycle, has himself mentioned about the said facts in the last line of the complaint given by him, and, in spite of that, as per the Tribunal just to create the cause of filing false MACP Case, has observed in the judgment in Bold Letters of the complainant that 'he was driving his motorcycle at the full speed and in order to save a dog on the road, he had applied brakes and the incident had occurred', was purposefully and deliberately not stated in the main claim petition, Exhibit-1, and also on the deposition of the applicant vide Exhibit-25.
4.1 The learned Judge, thus, to that facts of the matter has observed in paragraph 11.8, as under:
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NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined "11.8 Above act of the applicant and his ld. Advocate itself speaks about the fact that, before drafting the pleadings of present macp case on hand, it was noticed by the ld. Advocate, that if version of the complaint is produced in as it manner then the applicant wont be legally entitled to receive the compensation amount from the opponents, and therefore in order to fill up the lacuna, version of the original complaint vide Ex.37, is changed and manipulated and thereafter said additions and omissions are done purposefully and deliberately in the main claim petition and in the deposition given on oath, by the applicant."
5. Here, in this case, the factum of vehicular accident was proved by the evidence of the claimant. Further, reference has also been made in the medical documents produced by him about the accident and the same gets corroborated Page 13 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined by the complaint given by respondent the no.3, as well supported by the counterfoil of the charge- sheet, which shows that the complainant himself is an accused for the proceeding under sections 279, 338 and 337 of the PIC and section 177 and 184 of the M.V. Act. The learned Tribunal, in the present matter, has gone into the details, which were not warranted in the motor accident claim compensation cases, where the learned Tribunal had adopted the principle of proving the case "beyond reasonable doubt", where actually the proceeding under Motor Vehicle Act, was required to be decided on the basis of preponderance of probability, and, thus the degree of proof require is much less in the claim proceedings, and as has been held in Mangla Ram Vs. Oriental Insurance Company Limited And Ors. (supra), even if there is no negligence on the part of the driver and an accident happens while vehicle was used, the owner and the insurance company of the Page 14 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined vehicle are required to be held liable for the damages to the person, who suffered on account of such accident. The claimants are merely required to establish a case on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt cannot be applied.
6. The learned Tribunal has erred in laying down the burden on the claimant to establish beyond reasonable doubt. The respondent no.3 - driver, has failed to contradict the deposition of the claimant and even respondent no.1 - owner of the vehicle has failed to bring any adverse evidence on record to contradict the say of the claimant having sustained the injury because of the vehicular accident.
7. In view of the above and to the reasons given hereinabove, and as the motorcycle of Page 15 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined respondent no.1 was driven by respondent no.3, considering the evidence on record, the factum of accident being proved by the documentary evidence by way of complaint, medical evidence and the evidence of the claimant as a pillion rider being the eye witness to the accident, following the judgment of Mangla Ram Vs. Oriental Insurance Company Limited And Ors. (supra), the respondent no.3 would be solely negligent for the accident, and, therefore respondent nos.1 to 3 would be jointly and severely liable to pay the compensation.
8. In the result the judgment, order and award dated 29.11.2021 in M.A.C.P. No.3417 of 2009 is quashed and set aside. The matter is remitted back to the concerned Tribunal, since the quantum has not been decided in accordance to the evidence of the income. The learned Tribunal is directed to decide the compensation for the Page 16 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023 NEUTRAL CITATION C/FA/1788/2022 JUDGMENT DATED: 31/08/2023 undefined claimant, providing opportunity to all the concerned on record to give the evidence, now only with respect to the quantum of compensation. The matter be decided within a period of Four Months from the date of receipt of writ of this order.
9. Record and Proceedings be sent back to the concerned Court forthwith.
(GITA GOPI,J) Pankaj Page 17 of 17 Downloaded on : Sun Sep 17 03:05:43 IST 2023