Gujarat High Court
Jayantibhai Dalajibhai Nisharta vs Hareshgiri Somgiri Gosai on 31 March, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/3230/2021 JUDGMENT DATED: 31/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3230 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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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JAYANTIBHAI DALAJIBHAI NISHARTA
Versus
HARESHGIRI SOMGIRI GOSAI
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 31/03/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) Page 1 of 7 Downloaded on : Thu Apr 07 20:10:48 IST 2022 C/FA/3230/2021 JUDGMENT DATED: 31/03/2022
1. Feeling aggrieved and dissatisfied by the impugned judgment and award dated 03.03.2017 passed by the Motor Accident Claims Tribunal (Main), Dahod (hereinafter referred to as "the Tribunal) in M.A.C.P. No.21 of 2008, the original claimant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988.
2. Heard Mr.M.T.M. Hakim, learned counsel for Mr.Mohsin Hakim, learned counsel appearing for the appellant and Mr.Vibhuti Nanavati, learned counsel appearing for the respondent - Insurance Company. As the learned counsel for both the sides rightly pointed out that the issue involved in the present case is only limited to the insurance liability and not liability of the claim, the presence of respondents no.1 and 2 is not necessary. Both the learned counsel have submitted that the appeal be disposed of finally.
3. Suffice it to note that the accident occurred on 17.05.2007 near Sabari Ashram at Jhalod to Dahod road at about 8.00 a.m. It is the case of the appellant that the deceased Chetanbhai Daljibhai Nisharta was travelling in chhakdo rickshaw bearing Page 2 of 7 Downloaded on : Thu Apr 07 20:10:48 IST 2022 C/FA/3230/2021 JUDGMENT DATED: 31/03/2022 registration no.GJ-20-T-4909 and when he reached near the scene of accident, rickshaw bearing registration no.GJ-06-Y-2721 came from wrong side, dashed with chhakdo, which has resulted into the accident in which the deceased Chetanbhai sustained fatal injury.
4. The Tribunal, after appreciating the evidence on record, came to the conclusion that the driver of the auto rickshaw was negligent to the extent of 75%, whereas, the driver of the chhakdo was negligent to the extent of 25%. After considering the evidence as well as age and salary of the deceased Chetanbhai, who was working as Gram Sevak, at Rs.13,875/-, the Tribunal considered the fact that sole dependent i.e. mother of deceased Chetanbhai expired during the pendency of the claim petition and, thereafter, the appellant i.e. Jayantibhai was added as legal heirs of the mother in the claim petition. Relying upon the judgments of this Court in the case of United India Insurance Company Limited Vs. Diptiben Ureshbhai Vora reported in 2016 (2) T.A.C 758 (Gujarat) and Manjuri Bera Vs. Oriental Insurance Company Limited reported in 2007 (2) T.A.C 431, the Tribunal has partly allowed the claim petition and awarded a sum of Page 3 of 7 Downloaded on : Thu Apr 07 20:10:48 IST 2022 C/FA/3230/2021 JUDGMENT DATED: 31/03/2022 Rs.45,000/- with interest at the rate of 9%. Being aggrieved and dissatisfied by the same, the present appeal is filed.
5. Mr.M.T.M. Hakim, learned counsel for Mr.Mohsin Hakim, learned counsel appearing for the appellant has relied upon the following decisions.
(1) Bajaj Allianz General Insurance Company Limited, Pune Vs. Thakor Jayantibhai Piraji and others, First Appeal No. 1792 of 2020 dated 09.08.2021;
(2) ICICI Lombard General Insurance Co. Ltd. Vs. Minakshi Shantilal Valand and others, First Appeal No.2222 of 2020 dated 09.08.2021;
(3) N. Jayasree Vs. Cholamandalam Ms General Insurance Company Limited, AIR 2021 SC 5218;
(4) Oriental Insurance Company Limited Vs. Kahion alias Jasmail Singh Kahion, AIR 2021 SC 3913;
5.1 Mr.Hakim, learned counsel appearing for the appellant has contended that on the death of the sole claimant, the claim petition would not stand abated and the position as on the date Page 4 of 7 Downloaded on : Thu Apr 07 20:10:48 IST 2022 C/FA/3230/2021 JUDGMENT DATED: 31/03/2022 of the accident is to be considered, wherein, the whole estate of the sole claimant i.e. mother of the deceased Chetanbhai and the present appellant has to be considered and accordingly, the compensation is required to be awarded. He has contended that as per the decision of the Hon'ble Apex Court in the case of N. Jayasree (supra), the said issue is already decided by the Hon'ble Apex Court. It was, therefore, contended that the appeal requires consideration and just compensation deserves to be awarded to the appellant.
6. Per contra, Mr.Vibhuti Nanavati, learned counsel appearing for the respondent - Insurance Company has relied upon the following decisions.
(1) State of U.P. Vs. Civil Judge, Nainital and others, AIR 1987 SC 16;
(2) Smt. Manjuri Bera Vs. Oriental Insurance Co. Ltd., AIR 2007 SC 1474;
(3) Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another, (2009) 6 SCC 121;
(4) United India Insurance Company Limited Vs.Diptiben Page 5 of 7 Downloaded on : Thu Apr 07 20:10:48 IST 2022 C/FA/3230/2021 JUDGMENT DATED: 31/03/2022 Ureshbhai Vora & 3, 2017 ACJ 234;
(5) The Divisional Controller, K.S.R.T.C., Vs. Mahadeva Shetty and another, AIR 2003 SC 4172;
6.1 Mr.Nanavati, learned counsel appearing for the respondent
- Insurance Company has contended that as Jayantibhai was not dependent of deceased Chetanbhai, the claim petition is not maintainable and he was not joined as legal representative of deceased Chetabhai, originally, when the claim petition was filed. On the aforesaid ground, he has contended that the appeal being meritless deserves to be dismissed.
7. Having considered the aforesaid submissions made and the record and proceedings, we find that the claim petition was filed by the mother who died during the pendency of the claim petition. It is a matter of fact that the present appellant - Jayantibhai was not named or added as legal representative or dependent of the deceased Chetanbhai. The questions, which now, are posed for consideration of this Court, are not dealt with by the Tribunal though the same were raised as can be seen from the record more particularly the application for joining Page 6 of 7 Downloaded on : Thu Apr 07 20:10:48 IST 2022 C/FA/3230/2021 JUDGMENT DATED: 31/03/2022 Jayantibhai as party to the claim petition. In such an event, we deem it fit to quash and set aside the impugned judgment and award and restore the proceedings of M.A.C.P. No.21 of 2008 back to the file of the Tribunal. The Tribunal shall decide the questions whether the present appellant would be entitled to whole estate of the sole claimant i.e. Ramaben, mother of deceased Chetanbhai or not, keeping in mind the judgments which are relied upon by both the sides and decide the claim petition de novo from the stage of arguments. No further evidence be permitted. Such exercise shall be undertaken by the Tribunal as expeditiously as possible latest by 31.12.2022, without being in any manner influenced by the award impugned or any of the observations made by this Court in this judgment. The parties shall cooperate with the Tribunal for early disposal.
8. In view of the above, the appeal stands allowed to the aforesaid extent. Registry is directed to transmit back the record and proceedings to the concerned Tribunal forthwith. There shall be no order as to costs.
(R.M.CHHAYA,J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 7 of 7 Downloaded on : Thu Apr 07 20:10:48 IST 2022