Partly allowed

Jayaben W/O Dulabhai Karsanbhai Nakrani v. Manjulaben Rajkishore Abda

Gujarat HC21 Jun 2018FA/3785/2010

Case brief

AI extract

What is this about?

The High Court allowed the appeal in a motor accident compensation case. The Tribunal dismissed the claim by failing to quantify compensation despite prima facie evidence of truck driver negligence. The judgment quashed the dismissal and remanded the matter for determining the quantum of compensation.

What did the court decide?

Appealed judgment allowed; impugned judgment of Muslim Traitors Tribunal quashed; matter remanded to the Tribunal within 6 months for determining the quantum of compensation.

Jayaben W/O Dulabhai Karsanbhai Nakrani Vs Manjulaben… — Motor Accident Claims | Gujarat HC (2018)

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C/FA/3785/2010 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 3785 of 2010

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JAYABEN W/O DULABHAI KARSANBHAI NAKRANI

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Versus

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MANJULABEN RAJKISHORE ABDA

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Appearance:

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MR.HIREN M MODI(3732) for the PETITIONER(s) No. 1,2,3,4,5 MR VIBHUTI NANAVATI(513) for the RESPONDENT(s) No. 2 RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1 RULE SERVED(64) for the RESPONDENT(s) No. 2

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH

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Date : 21/06/2018

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ORAL ORDER

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Heard learned advocate for the appellant and learned advocate for the respondent. Perused the record. Appellants herein are original claimants of Motor Accident Claims Petiion No.340 of 2003, wherein they have claimed compensation to the tune of Rs.15,00,000/- from the respondents on the ground that one Dulabhai who was travelling on his Motorcycle bearing No.GJ 15 C 3368 from Kerala to Savarkundala, the truck No. GJ 12 U 5189 owned and insured by present respondents had hit him because of rash and negligent driving by its driver. It is further contended in claim petition that due to such impact, i.e. vehicular accident victim has received serious head injuries, for which he was shifted to Government Hospital At Savarkundala, but he succumbed to his injuries. Therefore, considering the age of the deceased being 47

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C/FA/3785/2010 ORDER

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years and agricultural land hold by him, and considering his income from the agricultural land as well as other business, amount of compensation was claimed as aforesaid.

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However, by impugned judgment dated 26.02.2010 the Motor Accident Claims Tribunal (Main) has dismissed such petition observing that drivers of small vehicle should be vigilant while driving the vehicle and witnesses are not telling the truth. However, in addition to showing some contradictions in evidence by the petitioners, the tribunal has without assigning reason dismissed the petition by recording that even if driver of heavy motor vehicle intend to drive such heavy vehicle at excessive speed they can’t drive and drivers of small vehicles like motorcycle should remain vigilant while driving their vehicle. There is no logic in such observations and conclusion. But in any case, for consideration of such incident and manner in which both the vehicles are moving is to be looked into and not size of the vehicle by observing that driver of the motorcycle shall remain vigilant. Even otherwise in fact the general rule is that driver of heavy motor vehicle has to be more vigilant in populated area. Therefore, in any case findings by the tribunal that petitioner has failed to prove the negligence of the driver of the heavy truck is improper and it amounts to illegality by not awarding compensation to the legal heirs of the victim. It is also clear and obvious that original claimants are legal heirs of the

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C/FA/3785/2010 ORDER

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deceased victim and, therefore, they do not have any personal information regarding nature in which, accident has taken place and that who is more liable if incident involves two vehicles and two drivers. In such cases, it would be appropriate for the tribunal to call for the relevant information even from the police investigation which would prima facie shows correct position. Relevant details could have been available if information in the of form 54, the Motor Vehicles Rules is called for with other relevant documents i.e. who is charged for the offence and what is prima facie evidene available during investigation. Instead of following such statutory provisions tribunal has arrived at the conclusion that applicant has failed to prove the negligence of driver of the truck for dismissing the claim of the legal heirs.

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Learned advocate for the appellant has rightly pointed out that in fact, number of the trailer was specifically disclosed in the FIR itself which was registered immediately after the incident and therein complainant has specifically disclosed that how accident has taken place with number of truck and also disclosed that truck is laying there. Based on such information when police has reached at the place even police has also found the truck and panchnama was drawn referring both the vehicles.

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Learned advocate for the appellant has also submitted that

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C/FA/3785/2010 ORDER

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after investigation instead of dropping the case against truck driver a charge sheet is filed against truck driver and thereby there is prima facie evidence is available on record that truck bearing No. GJ 10 U 5189 was involved in vehicular accident and that its deiver was negligence and responsible for the accident. In view of such prima facie evidence, it becomes clear that accident has certainly taken place wherein the victim has expired and, therefore, to that extent the findings and observations by the tribunal requires to be modified by setting aside such determination, which would result into setting aside the entire judgment, since the tribunal has failed to decide the quantum of compensation recording that since applicant has failed to prove issue Nos. 1 and 2 question to compute compensation does not arise. It is resulted into absolute irregularity and illegality by the tribunal.

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Whereas learned advocate for the respondent has submitted that in absence of evidence by the independent witnesses the tribunal has rightly dismissed the petition. However, I do not see any substance in such submission. In such cases burden of proof is to be considered appropriately and more particularly when claimants are legal heirs of the deceased victim. In such case, in fact, the tribunal should have taken interest by calling some witnesses to scrutinize that whether accident has occurred as alleged or not. Not taking such issue is unwarranted and needs this Court to interfere with and modify the impugned judgment.

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C/FA/3785/2010 ORDER

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Otherwise also the basic concept and such litigation is quite clear wherein in fact victim of the road accident has to prove the involvement of the vehicle and not the negligence of the tort feeser considering the provisions of the Motor Vehicles Act, 1988, which makes it clear that compensation can be claimed in case of total injury by accident arising out of motor vehicle and under Section 163(a) of the Act, it is provided that the claimant should not be required to be plead or establish any wrongful act or negligence or default of the owner of the vehicle.

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Therefore, appeal needs to be allowed by quashing and setting aside the impugned judgment but with a direction to remand it back to the concerned trial Court for deciding the quantum of compensation that may be awarded to the appellants since tribunal has failed to do so. However, the tribunal shall proceed further only from the point of scrutinizing the evidence regarding income and age of the victim and thereby quantum of compensation that may be awarded to the legal heirs being present appellants. The tribunal shall complete such exercise within 6 months from the date of receipt of writ of this order, without fail. Appela is allowed to that extent. Record and Proceedings be sent back to the concerned tribunal forthwith.

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(S.G. SHAH, J)

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DRASHTI K. SHUKLA

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Jayaben W/O Dulabhai Karsanbhai Nakrani v. Manjulaben Rajkishore Abda

Case brief

What is this about?

What did the court decide?

Jayaben W/O Dulabhai Karsanbhai Nakrani v. Manjulaben Rajkishore Abda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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