Gujarat High Court
Kantaben Gulabbhai Chaudhari vs Narayanbhai Bholaram Chaudhari ... on 11 August, 2025
NEUTRAL CITATION
C/FA/926/2011 JUDGMENT DATED: 11/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 926 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
✔
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KANTABEN GULABBHAI CHAUDHARI & ORS.
Versus
NARAYANBHAI BHOLARAM CHAUDHARI (DISMISSED) & ORS.
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Appearance:
MR RJ GOSWAMI(1102) for the Appellant(s) No. 1,2,3,4
DISMISSED FOR NON PROSECUTION for the Defendant(s) No. 1,2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 4
MS HINA DESAI(1023) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 11/08/2025
ORAL JUDGMENT
1. Despite learned advocate Ms. Hina Desai having her appearance for respondent no.4, the name of the learned advocate Ms. Vasavdatta Bhatt has been shown as respondent no.4 in the cause list. The Registry is hereby directed to remove the name of learned advocate Ms. Vasavdatta Bhatt as the learned advocate for respondent no.4.
2. When the matter was called out, the learned advocate Page 1 of 7 Uploaded by MR.CHIRAG DESHRAJ PAL(HCD0072) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:49 IST 2025 NEUTRAL CITATION C/FA/926/2011 JUDGMENT DATED: 11/08/2025 undefined for the appellants Mr. R. J. Goswami has not remained present.
3. Earlier, in this matter, certain orders were passed by the Co-ordiante Bench of this Court (dated 26.03.2018, 11.07.2018, 26.02.2019 and 01.07.2025), which are as under:-
Order dated: 26.03.2018 "When the matter was called out, none is present for the appellants. In the interest of justice and as a last chance, S.O. to 16.04.2018.
Order dated: 11.07.2018 Nobody is present for the appellant. Appeal is pending since the year 2009. Therefore, though matter needs to be disposed of. However, in the interest of justice, let it be listed on 06.08.2018 but with a clarity that the Court will proceed further to dispose of appeal in accordance with law even in absence of learned advocate for the appellant.
Order dated: 26.02.2019 At the request of learned advocate for the respondent No.3- Insurance Company to adjourn the matter on account of his ill health, this matter is adjourned to 19.03.2019.
Order dated: 01.07.2025 At the request made on behalf of Mr. R J Goswami, learned advocate for the appellant nos.1 to 4, time is granted and the matter stands adjourned to 15.07.2025."
4. Thus, it appears to be the propensity of the learned advocate for the appellant to not proceed with this matter.
5. On perusal of the appeal, this Court finds that the said appeal has been preferred against the judgment and award Page 2 of 7 Uploaded by MR.CHIRAG DESHRAJ PAL(HCD0072) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:49 IST 2025 NEUTRAL CITATION C/FA/926/2011 JUDGMENT DATED: 11/08/2025 undefined in MACP no.788 of 1998 passed by the MACT(Auxiliary) Mehsana. The said judgment and award is dated 29.04.2009.
6. Vide the said judgment and award, the Motor Accident Claim Petition of the petitioner was partly allowed against the opponent no.1 to 3 and the petition against the opponent no.4(ST Corporation) was dismissed with costs. Thus, the petitioner was allowed to recover a sum of Rs.2,22,000/- with running interest at the rate of 7.5% per annum from the date of the application with proportionate cost from the opponents.
7. Under the present appeal, the appellant nos.1 to 4 have prayed before this Court that the said claim may kindly be enhanced.
8. At this stage, learned advocate Mr. Sunil B. Parikh for the respondent no.3 insurance company has drawn attention of this Court to the order dated 26.04.2017, in the matter, which reads as follows:-
Mr. R.J Goswami, learned advocate for the appellants is present though the board is revised twice. Earlier the appeal was listed "for orders" list to enable, learned advocate for the appellants to take steps to serve unserved respondents no. 1 and 2. Despite affording an opportunity, learned advocate for the appellants has not taken any steps to serve unserved respondents no. 1 and 2. The appeal, therefore, stands dismissed qua unserved respondents no.1 and 2 for want of prosecution.
Registry is directed to list the appeal for final hearing on 22.06.2017.Page 3 of 7 Uploaded by MR.CHIRAG DESHRAJ PAL(HCD0072) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:49 IST 2025
NEUTRAL CITATION C/FA/926/2011 JUDGMENT DATED: 11/08/2025 undefined It was submitted that vide the said order dated 26.04.2017, for the reason that the learned advocate for the appellants had not taken any steps to serve the unserved respondent no.1 and 2, who are the driver and owner in the present proceedings, the appeal had been dismissed qua the unserved respondents no.1 and 2, for want of prosecution.
9. It was submitted by the learned advocate Mr Sunil B Parikh that accordingly, appeal stands dismissed vide the unserved respondents for want of prosecution. Thus, the effect of the aforesaid order dated 26.04.2017 is that only the respondent no.3 insurance company and the ST Corporation survive as the respondents in the present matter. It was submitted by the learned advocate Mr. Sunil B. Parikh that this Court, in the First Appeal no.1915 of 2014, as also in First Appeal no.5319 of 2006, being the appeals decided respectively on 25.02.2019 and 30.11.2022, have taken a view that in absence of an insured, the insurance company cannot be made liable.
10. This Court has perused the said decision. It appears that the Co-ordinate Bench of this Court has relied on the Division Bench judgment in the case of Oriental Fire and General Insurance Company Vs Aminbhai Pirmohomad master and ors, reported in 1986 (2) GLR 986. The relevant portion of the said judgment reads as follows:
Page 4 of 7 Uploaded by MR.CHIRAG DESHRAJ PAL(HCD0072) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:49 IST 2025NEUTRAL CITATION C/FA/926/2011 JUDGMENT DATED: 11/08/2025 undefined "8. Mr. Shethna also drew our attention ..... The contention which is raised by filing this appeal cannot be said to be of a technical nature. The insurance company has insured the owner of the motor cycle. By insuring the owner of the motor cycle, the insurance company has agreed to indemnify whatever compensation he might have to pay for the injuries caused by the vehicle in question. The question of the insurance company paying the amount of compensation will arise only if and when there is some award passed against the owner of the vehicle. When the owners of the vehicle is not made a party, the question of passing any award against the insurance company does not arise. No award could have been passed and the Tribunal had even no jurisdiction to pass such an award against the insurance company in the absence of the owner. The question which is raised by filing the appeal thus goes to the very root of the matter. It is true that the insurance company did not raise any such contention either in the written statement or at any stage before the Tribunal, but it cannot be said that the insurance company in any way had made any concession that it was liable to pay. The question of waiver also does not arise because this is a pure question of law which again goes to the very root of the matter.
The discussion made above will go to show that the point which is sought to be raised by filing the present appeal is not of a formal or technical nature as it goes to the root of the matter. We see no substance in the contention raised by Mr. Shethna that the appellant- insurance company is not entitled to raise this contention. When it is obvious that the Tribunal could not have passed the award against the insurance company in the absence of the insured, it is obvious that the award passed by the Tribunal against the insurance company as insurer of the motor cycle requires to be set aside."
11. In the said judgment, the Division Bench has held that the question of insurance company paying the amount of Page 5 of 7 Uploaded by MR.CHIRAG DESHRAJ PAL(HCD0072) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:49 IST 2025 NEUTRAL CITATION C/FA/926/2011 JUDGMENT DATED: 11/08/2025 undefined compensation will arise only if and when there is some award passed against the owner of the vehicle. The Hon'ble Division Bench went on to hold that when the owners of the vehicle are not made the parties, the question of passing any award against the insurance company did not arise. Moreover, in the decision in First Appeal no.1915 of 2014, the concerned respondents(insured) were not served in view of the fact that the appellant did not take any appropriate steps to serve the notice on the concerned respondent. Therefore, the appeal was dismissed against the said respondents by the Court at an earlier point in time. And thereafter, this Court has held that as there were no insured no liability to pay the compensation to the appellants would fall on the insurance company.
12. Here also, at an earlier point in time i.e. vide order dated 26.04.2017, the appeal has been dismissed qua the unserved respondent no.1 and 2 for want of prosecution. Thereafter, till today the said position has not been altered. In the circumstances, as per consistent view held by this Court namely that in absence of the insured, the insurance company cannot possibly be made liable in the matter, the present appeal is also liable to be dismissed against the insurance company.
13. Lastly, the only surviving respondent which remains on record is the ST Corporation. However, in the impugned Page 6 of 7 Uploaded by MR.CHIRAG DESHRAJ PAL(HCD0072) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:49 IST 2025 NEUTRAL CITATION C/FA/926/2011 JUDGMENT DATED: 11/08/2025 undefined judgment and award, the said ST Corporation, as per the earlier portion of this judgment, has been exonerated. Moreover under the present appeal, the said finding has not been challenged. In short, the only respondents who were held liable, against them, either the matter has been expressly dismissed or liable to be dismissed in view of the ratio that without the insured, the insurance company cannot be proceed against. In the circumstances, there is no merit in the present appeal, more particularly, in view of the forgoing discussion.
14. Hence, the present appeal stands disposed of, as rejected.
15. R&P if any be remitted back to the tribunal forthwith.
(J. L. ODEDRA, J) CHIRAG D PAL Page 7 of 7 Uploaded by MR.CHIRAG DESHRAJ PAL(HCD0072) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:49 IST 2025