Gujarat High Court
Jyotsnaben vs Jigar on 12 October, 2010
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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FA/332/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 332 of 2010
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JYOTSNABEN
WD/O PRAVINBHAI CHATURBHAI PATEL & 2 - Appellants
Versus
JIGAR
BHUPENDRABHAI PATEL & 1 - Defendants
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Appearance :
HL
PATEL ADVOCATES for Appellants : 1 - 3.
None for Defendants : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 12/10/2010
ORAL
ORDER
The appellants/original applicants in Misc. Motor Accident Claim Petition No. 100 of 2007 have approached this Court by preferring this First Appeal, assailing the judgment & order passed by the Claims Tribunal dated 10/2/2009, rejecting the application preferred by the applicants under section 163-A of Motor Vehicles Act for the reasons stated there under.
The facts in brief leading to filing of this appeal are set out as under.
The heirs of the deceased Pravinbhai Chaturbhai Patel had to file Misc. Motor Accident Claim Petition under section 163-A of M.V. Act, as on the fateful day of 18/12/2006 between 11 a.m. to 2.00 p.m., the deceased while riding borrowed motor cycle bearing Registration No. GJ-7 AP 2211 fell in a gutter or road side ditch and died. The claimants preferred petition alleging that the borrowed motor cycle suffered technical defect/ manufacturing defect on account whereof the deceased lost control of the vehicle and the vehicle was pulled away to its left side and it ran into the ditch, which ultimately resulted into death of the motor cyclist. This being the case of compensation under section 163-A of the Act, the motorcyclist fault in riding the motorcycle would fell into insignificance. Based upon this premise the claim petition was filed and agitated. The Tribunal after weighing submission of learned counsels for the opponent motorcycle owner as well as its insurer came to the conclusion that the application deserves to be dismissed and accordingly dismissed the same. While dismissing the application, the Tribunal has relied upon various decisions laying down proposition of law which would go to show that the claim petition under section 163-A was not maintainable in view of the peculiar facts & circumstances of the case on hand. The claimants being aggrieved and dissatisfied with the said judgment & order of dismissing the petition preferred this appeal before this Court.
Learned advocate appearing for the appellants relied upon the decision of this Court in case of NEW INDIA ASSURANCE CO. LTD Vs. MANISHABEN MAHENDRA @ SHANKER JOSHI AND ORS, reported in 2008 (2) G.L.H. 12, and contended that in view of the principle laid down by this Court, the fault is not required to be looked into and when the vehicular accident arises and the person dies or suffers disablement, then the structured formula of compensation is applied and on that basis the claimants are to be given compensation either by the owner or insurer of the vehicle. Learned advocate appearing for the appellants, thereafter relying upon the decision of the Apex Court in case of NINGAMMA & ANR Vs. UNITED INDIA INSURANCE CO. LTD., reported in AIR 2009 S.C. 3056, and submitted that in case if the provision of Section 163-A were not applicable, then, the Court could have appreciated the fact that the claimants who were depending upon the deceased could not have been left high & dry as the death occurred is involving motor vehicle and hence proper compensation as envisaged under M.V. Act would have been considered. Learned advocate appearing for the appellants for this purpose relied upon page-25 and 27 of the Apex Court judgment in support of his submission that even if in view of the judgment of the Apex Court the compensation under section 166 would have been available, the same would require leading of proper evidence and establishing no fault on the part of the deceased. He submitted that, therefore, the Claims Tribunal could not have non-suited the claimants and dismissed the claim petition filed on the ground that the deceased was riding borrowed motorcycle and therefore, he stepped into the shoes of owner of the motorcycle and hence not covered by the provision so as to deny compensation to the claimants and heirs of the deceased.
This Court is unable to accept the submission of learned advocate for the appellants for the following reasons.
In the instant case the peculiar facts need to borne in mind while appreciating the arguments canvassed on behalf of the appellants/original claimants before this Court. The deceased had borrowed the motorcycle from opponent no.1 and the opponent no.1 was not in the business of lending or permitting motorcycle to be hired. In other words, the motorcycle was borrowed as gratuitous person and therefore question arises as to what extent the motorcyclist or his heirs claimants could have allowed legitimate claim on account of the so called defect / manufacturing defect urged in the memo of the claim petition. However, it is required to be noted at this stage that the claimants themselves have chosen to file claim petition under section 163-A of M.V. Act, and have taken a ground that the concerned motorcycle was having inherent manufacturing defect which resulted into motorcyclist losing its control over the motorcycle and causing his death. The decisions cited at Bar namely the case of New India Assurance Co. Vs. Manishaben Mahendra @ Shankar Joshi (supra) would not help the appellants at all as the Apex Court has very categorically observed in the decision of Ningamma & Anr. Vs. United India Insurance Co. Ltd (supra) that in what situation the provision under section 163-A of M.V. Act would come into play. The deceased motorcyclist had borrowed the motorcycle. Surely therefore have no claim maintainable against insurer of the motorcycle in question. Further, it is transpired during submission that the judgment of this Court, i.e. New India Assurance Co. Ltd Vs. Manishaben Mahendra @ Shanker Joshi (supra) is stayed by the Apex Court.
Learned advocate's submission with regard to treating the motorcyclist to be third party is required to be rejected and has been rightly rejected by the Claims Tribunal. The motorcyclist on the borrowed motorcycle cannot claim to be a third party as he steps into the shoes of the owner. In view of this peculiar facts & circumstances of the case, I am of the view that the judgment & order impugned in this appeal does not call for any interference. The appeal therefore fails and is hereby dismissed.
[ S.R. BRAHMBHATT, J ] /vgn Top