Gujarat High Court
Vishnukuvarba Jadav Wd/O Amarsinh ... vs Khalid Rehman Abdul Rashid Bavra on 8 February, 2019
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/FA/2555/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2555 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see the NO
judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as to NO
the interpretation of the Constitution of India or any order made
thereunder ?
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VISHNUKUVARBA JADAV WD/O AMARSINH JADAV
Versus
KHALID REHMAN ABDUL RASHID BAVRA
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Appearance:
MR DIPAK R DAVE(1232) for the PETITIONER(s) No. 1,2,3
MR VIBHUTI NANAVATI(513) for the RESPONDENT(s) No. 3
RULE SERVED(64) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 08/02/2019
ORAL JUDGMENT
1. The appellants, original claimants have preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 ("the Act" for short) to assail the judgment and order dated 11.10.2005 passed by the learned MACT (Aux.), 6th Fast Track Court, Panchmahals at Godhra in MACP No.1035 of 1998, whereunder, the Claim Petition came to be dismissed.
2. Shorn of unnecessary details, the facts giving rise to the present appeal are that on 7.06.1998 deceased-Ajaysinh was Page 1 of 8 C/FA/2555/2007 JUDGMENT traveling in a Jeep bearing Registration No. GJ-17-C-2364. The said jeep was parked on the side of the road as it had a flat tyre. The deceased-Ajaysinh alighted from the said jeep and was going to the side of the road to answer the call of the nature when respondent herein came with a rickshaw bearing Registration No.GJ-17-X-4459 at a very high and excessive speed in a rash and negligent manner and lost control over the steering. As a result, the auto-rickshaw dashed with the deceased-Ajaysinh, who suffered serious injuries and was shifted to Godhra Civil Hospital where he succumbed to injuries. The offending auto-rickshaw was of the ownership of the respondent No.2 and was insured with the respondent No.3-Insurance Company.
3. The appellants, being the legal heirs of the deceased- Ajaysinh preferred Motor Accident Claim Petition No.1035/1998 under Section 166 of the M.V. Act in the Motor Accident Claims Tribunal, Godhra to recover a sum of Rs.5,30,000/- from the respondents jointly and severely. The learned Motor Accident Claims Tribunal (Aux.), 6th Fast Track Court, Panchmahals by the impugned judgment and order dismissed the Claim Petition on the ground that the appellants could not proved that the offending auto-rickshaw was involved in the accident. The appellants are, therefore, in this appeal.
Page 2 of 8C/FA/2555/2007 JUDGMENT
4. I have heard Mr. Dipak R. Dave, learned advocate for the appellants and Mr. Vibhuti Nanavati, learned advocate for the respondent No.3- Insurance Company. There is no representation on behalf of the respondent Nos. 1 and 2 despite service of notice of appeal.
5. Mr. Dave, learned advocate for the appellants submitted that the provisions of Section 166 of the M.V. Act is the benevolent peace of legislation and the Tribunal ought to have been taken holistic view of the matter. He submitted that the appellants were require to establish their case only on the basis of the preponderance of probability and the Tribunal ought not to have applied the standard of proof beyond reasonable doubt to non-suit the appellants. He submitted that the appellants had produced FIR and Panchnama of the place of accident to show that the offending auto-rickshaw was involved in the accident, but, the Tribunal had discarded this documentary evidence by taking hyper technical view. He further submitted that the police have after investigation submitted charge-sheet against the respondent No.1 which the appellants could not produced before the Tribunal at the relevant time, it was not within the knowledge of the appellants. He, therefore, urged that the matter may be remanded to the Tribunal for fresh consideration after affording an opportunity to the parties.
Page 3 of 8C/FA/2555/2007 JUDGMENT
6. Per contra, Mr. Vibhuti Nanavati, learned advocate for the respondent No.3 has supported the impugned order of the Tribunal. He submitted that the Tribunal has dismissed the Claim Petition of noticing the variation in the name of the driver of the offending auto-rickshaw as mentioned in the FIR and also mentioned in the Claim Petition. He submitted that the FIR was lodged by one Shri Dilawar Sinh Chandravijaysinh Jadav, who was uncle of the deceased- Ajaysinh. He submitted that the said Dilawarsinh did not stabbed into the witness box to explain the variance in the name of the driver of the offending auto-rickshaw. He further submitted that the appellants had moved Civil Application (For Orders) No.7693 of 2010 to bring charge-sheet as an additional evidence on record of this appeal. The said Civil Application came to be rejected by this Court on 09.12.2010 on the ground that the complaint that was filed was well within the knowledge of the applicant's advocate, the said document could have been procured at the time of trial, and therefore, this Court did not found it appropriate to frame the appellants to produce on record of the FIR after almost 12 years. He, therefore, urged that the impugned order of the Tribunal does not require interference in this appeal and the appeal may be dismissed.
Page 4 of 8C/FA/2555/2007 JUDGMENT
7. Section 166 of the M.V. Act is benevolent peace of legislation enacted with a view to provide succor to the victims of the Motor Vehicle Accidents. It is trite law that the Tribunal has to take a holistic view of the matter. It is necessary to born in mind that strict proof of an accident cause by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are nearly to establish their case on the touch stone of preponderance of probability. The standard of proof beyond reasonable doubt is applicable in the criminal trial cannot be applied to claim petition under the M.V. Act.
8. The appellants had specifically pleaded in the Claim Petition that deceased-Ajaysinh was hit by the auto-rickshaw bearing Registration No. GJ-17-X-4459. The respondent No.3- Insurance Company had contested the Claim Petition by filing written statement at Exhibit-18. It would be apt to record at this stage that the respondent No.3 did not dispute the accident by the offending auto-rickshaw. The stand taken by the respondent No.3 in paragraph No.7 by Exhibit-18 needs to be reproduce which reads as under:-
"7. It is not true that on 7-06-1998 the deceased was dashed by opponent No.1 and sustained injuries by driving his Rixa (Goods) in a rash and negligent manner. It is hereby submitted that the opponent No.1 was driving his vehicle in a modest and moderate speed on the correct side of the road as per traffic rules but the deceased as a pedestrain failed to take care and dashed with the Rixa (Goods) for his own fault. The applicants are required to prove the fact of negligence on the part of opponent NO.1 without which the claim deserves to be dismissed."Page 5 of 8
C/FA/2555/2007 JUDGMENT
9. It is thus manifestly clear that it was the case of the respondent No.3 that the accident had not occurred on account of negligence on the part of the respondent No.1, who was proving the offending auto-rickshaw at a moderate speed.
10. The appellant No.1 who is the mother of the deceased- Ajaysinh was examined vide Exhibit-14. She has stated in her oral evidence that her son deceased-Ajaysinh was hit by the offending auto-rickshaw bearing Registration No.GJ-17-X- 4459 and sustained serious injuries to which he later on succumbed during the treatment and in her cross-examination on behalf of the respondent No.3, the victim of accident by the offending auto-rickshaw is not at all disputed.
11. In the backdrop of above scenario, in my considered view the learned Tribunal was not justified in dismissing the Claim Petition on the ground that the Registration number of the offending auto-rickshaw is not reflected in the FIR or in the Panchnama of the place of accident and that there is a variation in the name of the driver of the offending auto-rickshaw as mentioned in the FIR and as impleaded in the Claim Petition.
12. The contention of Mr. Nananvati, learned advocate for the respondent No.3 that Civil Application for production of additional evidence at appellate stage in the form of charge- sheet was rejected by this Court and now the claimants cannot Page 6 of 8 C/FA/2555/2007 JUDGMENT be permitted to produce the charge-sheet to show that the offending auto-rickshaw was involved in the accident as the order of this Court would operate as res-judicata cannot be countenanced.
13. The only impact of rejection of the application in this appeal to produce the additional evidence in the form of charge- sheet is that the appellants are not permitted to produce the charge-sheet and rely upon it for the purpose of deciding the present appeal. It can never operate as a res-judicata to preclude the appellants from producing the same in the event the matter is referred to the Tribunal for fresh consideration.
14. In my considered view, the Tribunal has dismissed the Claim Petition on conjunctures and surmises even though there was ample evidence on record to indicate that the offending auto-rickshaw was involved in the accident and the respondent No.1-driver of the offending auto-rickshaw had not stabbed into witness box to question the respondent. I am, therefore, of the view that the matter is required to be referred to the Tribunal for fresh consideration to decide the question of negligence and quantum after affording an opportunity for producing the evidence, if any, and hearing to the parties.
15. For the foregoing reasons, the appeal succeeds and is hereby allowed. The impugned judgment and order dated Page 7 of 8 C/FA/2555/2007 JUDGMENT 11.10.2005 passed by the learned M.A.C.T. (Aux.), 6th Fast Track Court, Panchmahals at Godhra in M.A.C.P. No.1035 of 1998 is hereby quashed and set aside. The matter is referred to the Tribunal for fresh consideration to decide the question of negligence and quantum after affording an opportunity for producing the evidence, if any, and hearing to the parties.
16. Since the Claim Petition is of the year 1998, the Tribunal is requested to dispose of the same as expeditiously as possible by giving it priority.
17. In the facts of the case, parties are left to bear their own cost.
18. Registry is directed to transmit the Record and Proceedings to the Trial Court forthwith.
(A.G.URAIZEE, J) Manoj Page 8 of 8