Gujarat High Court
Amitaben Widow Of Bakulesh Somabhai ... vs Rameshbhai Somabhai Patel on 21 February, 2025
NEUTRAL CITATION
C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025
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Reserved On : 11/02/2025
Pronounced On : 21/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 230 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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AMITABEN WIDOW OF BAKULESH SOMABHAI PATEL & ORS.
Versus
RAMESHBHAI SOMABHAI PATEL & ANR.
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1,2,3
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. The claimants are in appeal under Section 173 of the Motor Vehicle Act, 1988 challenging the judgment and award dated 31.08.2009 passed by the Motor Accident Claim Tribunal (Aux.) and Presiding Officer, 4th Fast Track Court, Kheda at Nadiad (for short "learned Tribunal") by which the learned Tribunal has dismissed the claim petition filed under Section 166 of the Motor Vehicle Act, 1988.
2. The few facts relevant for decision of this appeal are as under.
Page 1 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined 2.1 On ill-fated day i.e. on 22.06.1987 deceased Bakuleshbhai Patel and his cousin Girishbhai Patel went to Vanakbori Thermal Power Station from Ahmedabad on scooter No.GBL.1376. The scooter was driven by Bakuleshbhai. After attending their work at Vanakbori Thermal Power Station, both of them were returning back to Ahmedabad around 9.00 hours in night. According to claimants, deceased Bakuleshbhai was riding the scooter at moderate speed and his cousin Girishbhai was sitting pillion in the scooter. When they reached near the place of accident, one truck No.GTJ-6444 came driven by driver of it in rash and negligent manner on wrong side of the road and dashed with the scooter of the deceased and the scooter dashed with the neem tree resulting into instantaneous death of the deceased.
2.2 The FIR of the accident was lodged by the pillion rider Girishbhai and later on another complaint was also sent by Girishbhai to concerned police station. The widow and other legal heirs of deceased Bakuleshbhai preferred claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.12,50,000/- along with interest and proportionate cost. The claim petition was moved against driver, owner and insurer of the truck.
2.3 In first round of litigation, the reply of the driver was brought on record and was filed by his learned advocate whereby it is claimed that the driver of the truck has accepted the facts of the road accident. Written statement has been filed by the Insurance Company raising contention of non-involvement of the Page 2 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined truck in the road accident and stating facts that on fateful day deceased Bakuleshbhai was riding the scooter and he was dazzled by the light of oncoming vehicle and lost his balance. Therefore, he applied sudden brakes upon scooter because of which scooter skidded upto 78 ft. and dashed with neem tree. In this scene of accident, the deceased having received fatal injury had lost his life. The Insurance Company also has heavily relied upon the FIR filed by Girishbhai who was cousin brother of the deceased and was pillion rider in the scooter. Motor Accident Claim Tribunal, Kheda permitted both parties to lead evidence as under :
1 Copy of panchnama Exh.29 2 Certificate of permanent employment Exh.30 3 Certificate of employment of deceased Exh.31 4 Certificate of Botliboy company Exh.32 5 Degree certificate of deceased Exh.33 6 PM Note of the deceased Exh.34 7 Complaint Exh.37 8 Death certificate of deceased Exh.40 9 R.C.Book of the Truck Exh.41 10 Insurance policy of Truck Exh.42 11 Pay slip of the deceased Exh.43 12 School leaving certificate of applicant Exh.44 13 Birth certificate of Parth Exh.45 14 Copy of complaint Exh.51 15 Notice issued to the opp. No.1 by the learned Exh.89 advocate for the opp. No.2.
16 Notice of interim compensation served to the Exh.90 opponent No.1.
17 Office copy of the details called from the Vaso Exh.91 Bank.Page 3 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025
NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined 18 Reply given by the Vaso Bank Exh.92 19 Receipt of the complaint sent to the Thasra Exh.93. Police station, by RPAD by Girishbhai 20 Copy of application addressed to the Bar Exh.94 Council 21 Copy of order of the Bar Council Exh.95 2.4 Upon pleading of the parties, issues were framed (Exh.17). Ultimately, by judgment and award dated 15.09.1995, the claim petition was partly-allowed. Learned Tribunal passed the award in tune of Rs.5,10,337/- in favour of the claimants along with 12% interest from the date of petition till realization against driver, owner and insurer of the truck.
2.5 Being aggrieved and dissatisfied by the judgment and award of learned Tribunal, the Insurance Company filed First Appeal No.567 of 1996 before the Division Bench of this Court. The appeal was disposed of on 27.03.2008. The Division Bench of this Court by allowing appeal of the Insurance Company has quashed and set aside the impugned judgment and award and remanded back the matter to the learned Tribunal for fresh hearing. Relevant observation of Division Bench of this Court in para 5 and 6 reads as under :
"[5] Looking to the facts and circumstances of the case and there is no specific finding given by the Tribunal to the effect that in fact, the applicants have proved that the deceased died due to negligence driving of the driver of the vehicle i.e. Truck No.GTJ-6444 involved in the accident and considering the fact that the issue No.1 has not been properly answered by the Tribunal to the effect that in fact, the Truck No.GTJ-6444 was involved in the accident, there is a consensus between the learned advocates appearing on behalf of appellant as well as Page 4 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined respondents No. 1 to 3, herein - original claimants that the matter be remanded by quashing and setting aside the impugned judgment and award without observing anything on the merits of the case and all the parties be permitted to lead further evidence also and, therefore, we are not assigning any further reasons in support of our present order. In fact, looking to the judgment and award passed by the Tribunal, we are also of the opinion that the matter deserves remand by quashing and setting aside the impugned judgment and award.
[6] Under the circumstances, the impugned judgment and award passed by the Motor Accident Claims Tribunal (Main), Kheda at Nadiad dated 15.09.1995 passed in Motor Accident Claims Petition No.1148/1987 is hereby quashed and set aside. The matter is remanded to the Tribunal for deciding the same afresh in accordance with law and on merits. In the facts and circumstances of the case and as the Insurance Company has pleaded that there is a collusion between the original claimants and the driver-cum-owner of the Truck bearing No.GTJ-6444, it will be open for the Insurance Company to submit an appropriate application before the Tribunal to permit them to contest the claim on merits and raise all defences available to them and as and when such application is submitted, the Tribunal shall consider the same in accordance with law and pass an appropriate order permitting the Insurance Company to contest the claim petition on merits and on all defences available to them. It will also be open for all the parties to lead further evidence and the same shall be considered in accordance with law and on merits. In the facts and circumstances of the case, the Tribunal is directed to decide and dispose of the aforesaid claim petition on merits within a period of six months from the date of receipt of the writ of this order, but not later than 31.10.2008. All concerned are directed to co-operate with the Tribunal for early disposal of the said claim petition."
2.6 After the matter is remanded back to the learned Tribunal, two issues i.e. issue No.1A and 1B were added in the originally framed issues. In all following issues were framed :
Page 5 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined "1. Whether the applicant proves that the deceased died due to the rash and negligent driving of the driver of the vehicle involved in the accident?
1.A Whether the applicant proves that the Truck No.GTJ-6444 was involved in the accident?
1.B Whether the applicant proves that the Truck No.GTJ-6444 was driven in the rash and negligent manner on the wrong side of the road an collided with scooter?
2. Whether the applicant is entitled to get compensation? If yes, what amount an from whom?
3. What award and order ?"
2.7 In fresh round of litigation, learned Tribunal issued notice to the driver of the vehicle upon insistence of the Insurance Company. The driver filed another statement claiming that he has not filed the written statement which is produced on earlier point of time and claims that his signatures were taken on the blank paper. He has also lodged complaint against the learned advocate before the Bar Council of Gujarat. In his later statement, he has specifically contended that his vehicle i.e. truck was not involved in the road accident. In second round of litigation, learned Tribunal permitted all the parties to lead fresh evidence and ultimately learned Tribunal reached to the conclusion that truck has not dashed with the scooter but the deceased was dazzled with the light of oncoming vehicle; lost control over the vehicle (scooter) and skidded for 78 feet and dashed with neem tree and lost his life. Having given such finding, learned Tribunal dismissed the claim petition vide judgment and order dated 31.08.2009 and directed the claimants to return Rs.54,000/-, the amount of interim Page 6 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined compensation paid by the Insurance Company to the Insurance Company and further refunded Rs.10,00,000/- paid by the Insurance Company to it.
3. Assailing the impugned judgment and award, learned advocate Mr.Paresh Darji appearing for the appellants specifically argued that, in facts of the case that written statement filed by the driver at first instance at Exh.12 admits the facts of road accident and submitted that admission is best piece of evidence. The truck driver has admitted that on the ill- fated day his truck had dashed with the scooterist and since he was frightened that people will outrage and beat him, he escaped from the spot of the accident. He would further submit that in view of such admission, claimants were not required to lead evidence to prove that truck is involved in the road accident. He would further submit that learned Tribunal erred in ignoring the admission made by opponent No.1 at first instance. He would submit that Code of Civil Procedure does not recognize the procedure to file two written statement in the same matter. He would further submit that learned Tribunal without understanding the procedural law permitted opponent No.1 to file another written statement at Exh.60 and then erred in relying upon second written statement as well as deposition of opponent No.1 who later on became interested witness as he was won over by the Insurance Company. In support of his submission, he has relied upon the judgment of Hon'ble Supreme Court in case of S. Malla Reddy vs. M/s.Future Builders Co.Op. Sty. and others - 2013 (9) SCC 349.Page 7 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025
NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined
3.1 Learned advocate Mr.Darji also referred to deposition of PW-2 (Exh.35) to argue that the first informant and cousin of deceased Girishbhai has entered into witness box. In his chief examination he has stated that truck driver came on wrong side on Thasra - Savalia road and dashed the scooter. He deposed that since his brother lost his life, he was not in fit state of mind and therefore, in FIR he has not mentioned that truck has dashed with the scooter. He further deposed that in 15 days of incident, opponent No.1 came to meet him and promised to pay the compensation and requested not to file FIR and therefore, he has not filed the FIR. He further deposed that but thereafter opponent No.1 resiled from his promise, therefore, Girishbhai compelled to file complaint at Exh.37. Referring to the judgment of Hon'ble Supreme Court in case of Kusum Lata and others vs. Satbir and others - 2011 (3) SCC 646, he would submit that in hit and run case it is but natural for the relative under traumatic condition of giving immediate medical aid to the victim, not to be conscious enough of the presence of any person in the vicinity. Learned advocate, therefore, submitted that the FIR in that circumstance cannot be treated to be gospel truth. It is not possible for such first informant to disclose each and every fact in the FIR. He has also referred the judgment of Hon'ble Apex Court in case of National Insurance Company Limited vs. Chamundeshwari and others - 2021 (18) SCC 596, to support his argument that the evidence led before the learned Tribunal has batter value and footing than the fact coming from the police record and if contrary fact is coming in evidence, same is to be believed.
Page 8 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined 3.2 Mainly, upon above submissions, learned advocate Mr.Darji would submit to allow this appeal and to quash and set aside the impugned judgment and award.
4. Per contra, learned advocate Mr.Mazmudar appearing for the Insurance Company while supporting the impugned judgment and award argued that claimants have done mischief of the suppression of facts. He would further submit that Exh.51 is FIR, first in point of time. It was lodged by cousin of deceased namely Girishbhai who was sitting pillion in the scooter. He would further submit that filing of FIR at Exh.51 was well within the knowledge of the claimants, yet FIR at Exh.51 is not pleaded in pleadings nor produced the same before the learned Tribunal. It was the Insurance Company who produced the FIR at Exh.51 and it was first time FIR at Exh.51 came on record before learned Tribunal. Learned Tribunal was kept in consideration that only FIR at Exh.37 is on record, however, first FIR at Exh.51 was filed by Girishbhai before concerned police station and pursuant to the same, spot and inquest panchnama were also drawn in presence of Girishbhai. But neither the claimants nor Girishbhai revealed this fact. He would further submit that Exh.37 cannot be treated as FIR as it is typed papers prepared by the learned advocate and sent to police through registered post as claimed by the claimants. He would submit that there cannot be two FIR of the same incident. If Girishbhai wants to say something with regard to investigation of offence at Exh.51, he was required to go to police and to give further statement. In nutshell, learned advocate Mr.Majmudar would submit that the typed papers produced at Exh.37 is concocted papers fabricating Page 9 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined involvement of the truck in the road accident. He would aptly submit that this issue is elaborately discussed by the learned Tribunal to dismiss the claim petition.
4.1 Learned advocate Mr.Mazmudar would further submit that the issue of involvement of truck was noticed by the Division Bench of this Court in the first appeal and therefore, the Division Bench of this Court quashed and set aside the impugned judgment and award at first instance and remanded back the matter to decide issue of involvement. Subsequent thereto, learned Tribunal in fresh proceedings has rightly concluded that truck is not involved in the road accident. The deceased died because he was imbalanced due to reason of he being dazzled by the light of the oncoming vehicle.
4.2 Learned advocate Mr.Mazmudar also submitted that Exh.12 cannot be treated as written statement of opponent No.1 as opponent No.1 later on has personally came before the Court and stated that he has not filed any written statement but some advocate has obtained his signature on the blank paper and filed the written statement. He would further submit that opponent No.1 also entered into witness box at Exh.77 as DW-1 and clearly stated on oath that his truck is not involved in the road accident. In the circumstances, learned Tribunal has rightly decided that claimants have failed to prove that truck is involved in the road accident and road accident was result of self negligence of the deceased Bakuleshbhai and rightly rejected the claim petition. No error much less error of understanding the fact or provision of law has been committed by the learned Page 10 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined Tribunal. Therefore, learned advocate Mr.Mazmudar submits that appeal may be dismissed.
5. I have heard the rival submissions of learned advocates appearing for the both sides. I have also gone through the evidence recorded during the trial of the claim petition.
5.1 Apt to note that upon hearing of the rival argument question pose for consideration that whether claimants have proved involvement of truck in road accident?
6. At the outset, it is to be noticed that the Division Bench of this Court by allowing First Appeal No.567 of 1996, while remanding back the claim petition for fresh consideration succinctly observed that "no specific finding given by the Tribunal to the effect that in fact, the applicants have proved that the deceased died due to negligence driving of the driver of the vehicle i.e. Truck No.GTJ-6444 involved in the accident and considering the fact that the issue No.1 has not been properly answered by the Tribunal to the effect that in fact, the Truck No.GTJ-6444 was involved in the accident".
7. Before re-examining the evidence produced during the trial, certain admitted facts arise are required to be noticed as under:
In the pleadings, the claimants have not pleaded about filing of FIR at Exh.51.
Admittedly, FIR produced at Exh.51 was prior in point of time.Page 11 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025
NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined The FIR at Exh.51 was neither pleaded nor produced along with pleadings.
The claimants solely relied upon Exh.37 which is typed papers prepared by the learned advocate and alleged to have been sent to the jurisdictional police station.
Exh.37 was never part of the investigation of the offence started pursuant to filing of FIR at Exh.51.
Exh.37 is prepared subsequent to filing of FIR at Exh.51.
Exh.51 is filed by eye-witness to the accident. The first informant is Mr.Girishbhai who was pillion seated on the scooter and was cousin of the deceased. Pursuant to filing of FIR at Exh.51, immediately spot panchnama was drawn in presence of first informant Girishbhai (PW-2). Drawing of spot panchnama is not pleaded.
Girishbhai (PW-2) entered into witness box at Exh.36 did not depose about filing of FIR at Exh.51.
At no point of time, PW-2 Girishbhai who is first informant claimed that he was not in fit state of mind, was under
traumatic condition and has not lodged the FIR with proper and true contents.
The widow of deceased PW-1 entered into witness box at Exh.28 did not explain that why FIR at Exh.51 is neither pleaded nor produced along with the pleadings.Page 12 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025
NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined 7.1 In background of above admitted factual aspects, let firstly re-visualize the road accident. The incident took place at about 9.00 hours at night on Vanakbori - Ahmedabad highway, two kilometers after passing village Thasra. Admittedly, at the time of road accident, road was full of traffic and vehicles were going on both ways. According to claimants, deceased was riding scooter towards Ahmedabad and truck which is said to have been involved in the road accident was coming from Ahmedabad and the accident claimed to be head on collision accident.
8. The FIR at Exh.51 (on page 221 of the paper-book) was lodged by Girishbhai who was pillion rider in scooter. In his FIR he has stated that deceased Bakuleshbhai was driving the scooter and he was sitting pillion. After passing the village Thasra, when they reached near place of accident, one lorry came from opposite side and because of its full light, the deceased Bakuleshbhai dazzled and lost balance over the scooter. The scooter went into the ditch of the road and dashed with the neem tree. Resultantly, deceased Bakuleshbhai lost his life on the spot and first informant received injuries on face, left eye and left leg. It is argued by learned advocate Mr.Darji that first informant was in traumatic condition as his brother has lost life and therefore, it could not be expected that full and enough details, he has stated in the FIR. It is good to argue that first informant was under traumatic condition but first informant Girishbhai who entered into witness box as PW-2 did not depose that he was in traumatic condition and has wrongly stated in FIR Exh.51 that deceased was dazzled by light of the oncoming vehicle. He did not depose single word about filing of FIR at Page 13 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined Exh.51, rather he referred to only Exh.37 and spoke that driver of the vehicle met him within 15 days and told not to file FIR.
But since driver resiled from his promise, he got prepared complaint from learned advocate and sent it to jurisdictional police station.
9. In existence of above evidence, it is preposterous to believe involvement of the vehicle. It seems that the Division Bench of this Court therefore remanded the matter back to the learned Tribunal for fresh consideration because learned Tribunal in first round of litigation did not assign any reason for involvement and negligence of the truck driver. When the matter was remanded back to the learned Tribunal, widow of deceased PW-1 again entered into witness box and gave deposition but since she was not eye witness, her deposition was not helpful to the claimants to prove their case. Girishbhai, PW-2 again entered into witness box and admitted in his cross-examination that at the relevant time he was sitting as pillion rider in the scooter. He has admitted that at that time there was tremendous traffic on the road and on both sides vehicles were coming with full light. He has seen the vehicle, light of which had dazzled his brother i.e. deceased Bakuleshbhai and therefore, deceased Bakuleshbhai had applied sudden brake upon the scooter. He has admitted that due to apply of sudden brake, the scooter skidded 74 feet and dashed with the standing neem tree. He has further admitted, after having dashed with neem tree, they fell into ditch where scooter again dashed with another neem tree. He has admitted that ditch was flooded with blood due to injuries received by deceased. He admitted the vehicle, light of which the Page 14 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined deceased was dazzled fled away from the spot. He admitted that due to impact of the road accident, he became unconscious and having regained the consciousness, he went to Thasra Police Station on his own after leaving the dead body of deceased on side of road and lodged FIR at Exh.51. He also admitted that thereafter two police personnel came along with him on the spot of incident and drawn spot panchnama. He has also admitted that inquest panchnama was also drawn in his presence.
10. Further, PW-2, Girishbhai also admitted that after six months of accident, he decided to file claim petition and therefore, he got details of the owner, driver and insurer of the truck against whom he intended to file the claim petition. He went to Sevalia highway for searching details and he obtained the details of opponent No.1 from registration number of the truck. He admitted that he told his advocate that people of village Sevalia have given him name and number of the truck involved in the road accident. He admitted that his advocate sent alleged complaint at Exh.37 through registered post to concerned police station.
11. Now appreciating this evidence on record and re-perusing the chief examination of PW-2, he has stated that fifteen days after accident, opponent No.1 met him at his own place and told not to file FIR as opponent No.1 would pay the compensation. A complete contradiction is coming from the deposition of PW-2, Girishbhai, who is star witness and since his deposition is completely contradicting the facts, it is totally unbelievable deposition as even before opponent No.1 met to PW-2 Girishbhai, Page 15 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined FIR at Exh.51 was already lodged. Probably as true fact of road accident was stated in FIR at Exh.51, it was suppressed. In juxtaposition of such contradictory statement what could be noticeable that in cross-examination in black and blue, he has admitted that deceased Bakuleshbhai was dazzled by light of oncoming vehicle, became blank and lost control over the scooter; applied brakes and the scooter skidded upto 74 feet on road towards Ahmedabad. This is a clear case which establishes non-involvement of the truck. The FIR at Exh.51 and the deposition of PW-2 indicates that the prepared alleged FIR at Exh.37 is an eye-wash and was prepared purposively for filing of the claim petition. Story that opponent No.1 met later on and promised to pay compensation since was not followed, led to filing of Exh.37, is totally unbelievable.
12. Hypothesis can also be drawn from the facts of the case. According to the claimants, it was a head on collision between truck and scooter. The scooter was coming from village Thasra towards Ahmedabad and truck was going from Ahmedabad towards village Thasra. So, if head on collision took place between the truck and scooter, the scooter must have been moved back towards village Thasra or may be skidded backward towards village Thasra, but as per the deposition of Girishbhai PW-2 who is eye-witness and pillion rider on scooter, the scooter skidded towards Ahmedabad. The panchnama of spot at Exh.29 noted the fresh mark of applying sudden brake for 78.5 feet and same was towards Ahmedabad from alleged spot. The facts culled out supports the hypothesis that deceased having been dazzled with light of the oncoming vehicle lost control over the Page 16 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined scooter, applied sudden brakes and skidded for 78 feet and dashed with neem tree. Re-appreciation of evidence, aptly settled non-involvement of truck in road accident, and establish case of self negligence.
13. It was also argued that opponent No.1 has admitted in his written statement at Exh.12 happening of the accident and admission is best piece of evidence and therefore, the claimants are not required to prove anything further. Also it was argued that opponent No.1 cannot file second written statement after matter is remanded. So far as argument of claimants that opponent No.1 cannot be permitted to file further written statement is concerned, first of all in written statement at Exh.12, it was specifically contended that deceased lost control over his vehicle because he was dazzled by the light of oncoming vehicle (see para 6). Secondly, opponent No.1 after remanding the matter and having been summoned by the learned Tribunal, appeared and filed his declaration at Exh.60 that his vehicle No.GTJ-6444 was not involved in the road accident. His vehicle was seized by Vaso Cooperative Bank as he failed to repay the amount of loan. Further he declared that he was never arrested with regard to alleged accident and no criminal case was ever filed against him. He has further clarified that he has not filed written statement produced at Exh.12. It is learned advocate Mr.B.A.Patel who has obtained his signature on blank paper for some other legal work. He also declared that he has filed complaint against learned advocate Mr.B.A.Patel before Bar Council of Gujarat. In view of that filing of Exh.60 cannot be treated as later or subsequent new written statement. In exercise Page 17 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined of jurisdiction under Section 72 of the Evidence Act, if signatures of opponent No.1 on Exh.12 and Exh.60 are compared, they seem to be dissimilar signatures. The signature on summons issued by the learned Tribunal subsequent to remand of the matter at Exh.58 also seems to be dissimilar with the signature on Exh.12. Opponent No.1 entered into witness box as DW-1 at Exh.77. In his deposition, on oath he has stated that his truck was not involved in the road accident. His vehicle was seized by Vaso Cooperative Bank as he could not repay the loan and therefore, his vehicle was not present on the accident spot on the ill-fated day. In cross-examination, he has been shown Vakalatnama at Exh.9 whereby he has denied his signature. Notably though learned advocate for the claimant in cross-examination had shown to DW-1 Vakalatnama at Exh.9 to verify the signature of opponent No.1, he did not show him Exh.12 to admit his signature.
14. Looking the overall evidence on the record and re- appreciating them, it is clear as crystal that deceased was dazzled by the light of the oncoming vehicle while he was riding his scooter from Vanakbori to Ahmedabad, in outskirt of village Thasra and lost his balance and applied sudden brakes on the scooter. The scooter skidded for 78 feet towards Ahmedabad and then dashed with neem tree on road side and went into ditch and again dashed with another neem tree. Deceased Bakuleshbhai and first informant Girishbhai both received injuries. The injuries sustained by the deceased Bakuleshbhai were serious and fatal and he died on the spot. Girishbhai became unconscious and having regained consciousness, he Page 18 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined went to jurisdictional police station for lodging of FIR at Exh.51 and disclose the information of accident. It was first statement with regard to accident given by Girishbhai. Such first statement does not disclose involvement of the truck in the road accident. Spot panchnama and inquest panchnama were drawn in presence of Girishbhai. All these aspects are sufficient to draw conclusion that Girishbhai was in fit state of mind and he was not in trauma or in traumatic condition to unfurl the real facts. There are sharp contradictions in oral and documentary evidence which establish that some documents are fabricated to prove that truck is involved in the road accident to get the compensation. Truck was never part of the road accident. The deceased was dazzled with the lights of the oncoming vehicle and lost control over the vehicle and met with the accident. The written statement at Exh.12 appears to be got up written statement of opponent No.1 and it cannot be treated to be admission of the opponent No.1. Rather it was got up for the purpose of getting compensation under the Motor Vehicle Act, 1988 from the jurisdictional tribunal. This Court is well conscious that in claim petition under Section 166 or 163-A of the Motor Vehicle Act, 1988, the claimant need not to prove the case by leading evidence in nature of beyond reasonable doubt but has to establish the case on touchstone of preponderance of probabilities. But in the present case, multiple and different versions of the road accident coming from the evidence of the claimant itself establishes lack of certainty and unsureness that the truck is involved in the road accident. On record of claim case, abundant and ample evidence are available to hold that truck is not involved in the road accident. The learned Tribunal Page 19 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025 NEUTRAL CITATION C/FA/230/2010 CAV JUDGMENT DATED: 21/02/2025 undefined in the impugned judgment and award vividly, comprehensively and extensively analyzed the evidence to negate the claim of the claimants. On reanalysis of the evidence, I see no reason to interfere with the impugned judgment and award. Hence, intercession in the impugned judgment and award is totally impermissible in facts and evidence of the case.
15. The judgments upon which learned advocate Mr.Darji appearing for the appellants - claimants relied upon are factually distinguishable.
16. In wake of above reasons, this appeal sans merit and it is, accordingly, dismissed. Registry is directed to send back the record and proceedings to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) GAURAV J THAKER Page 20 of 20 Uploaded by GAURAV J THAKER(HC00951) on Mon Feb 24 2025 Downloaded on : Mon Feb 24 21:54:47 IST 2025