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2013 DIGILAW 83 (GUJ)

Minor Siddharth Makranbhai v. Rambilam Surajbhan

2013-02-15

BHASKAR BHATTACHARYA

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Judgment Bhaskar Bhattacharya, CJ.—This appeal is at the instance of the claimants and is directed against an award dated July 22, 2004 passed by the Motor Accident Claims Tribunal [Aux.] at Ahmedabad in MACP No. 259 of 2000 thereby dismissing the claim-application. 2. Being dissatisfied, the claimants, who are the mother and minor children of the victim, have come up with the present First Appeal. 3. It appears from the materials on record that the claim-application under Section 166 of the Motor Vehicles Act being MACP No. 259 of 2000 was filed by the three children and the mother of the victim thereby claiming compensation for the death of one Makrandbhai Janardhanbhai. In the claim-application, one Rambilam Surajbhan, the alleged driver of the tempo, was made the opponent No. 1, the owner of the vehicle was made opponent No. 2, and the National Insurance Co. Ltd., the insurer of the vehicle was made opponent No. 3. Subsequently, however, during the pendency of the proceedings, the name of Rambilam Surajbhan, the alleged driver, was deleted. 4. The case made out by the claimants in the claim-application was that the deceased Makrandbhai Janardhanbhai was going in a tempo bearing No. GJ-16-T-9606 to Bharuch from Baroda carrying his goods in the said vehicle. In the claim-application, it was alleged that the said tempo was being driven by the opponent No. 1 in a rash and negligent manner and at about 9:30 A.M. on the date of accident, the vehicle dashed with one unknown stationary truck standing on the road. On account of such unexpected dash, the deceased sustained serious injuries and died on the spot. According to the claimants, the dead body of the deceased was found by one Assistant Sub-Inspector, Valan Outpost, District-Baroda. The police immediately recorded a complaint to the effect that some absconded driver had caused the accident and fled away from the place of the accident. The registration number of unknown stationary vehicle was not disclosed in the complaint. It was pointed out in the claim-application that the wife of Makrandbhai, the deceased, and the mother of the claimant Nos.1 to 3 and the daughter-in-law of the claimant No. 4, was the owner of the vehicle. 5. The registration number of unknown stationary vehicle was not disclosed in the complaint. It was pointed out in the claim-application that the wife of Makrandbhai, the deceased, and the mother of the claimant Nos.1 to 3 and the daughter-in-law of the claimant No. 4, was the owner of the vehicle. 5. On summons being served, neither the owner of the vehicle, i.e. the widow of the victim nor the alleged driver, the opponent No. 1, appeared and contested the proceedings, whereas the opponent No. 3, the National Insurance Co. Ltd. who had insured the tempo filed its written statement contesting the said application. According to the Insurance Company, the entire case is a concocted and manipulated one so as to unlawfully get the compensation from the Insurance Company. According to the Insurance Company, at the time of accident, no person other than the deceased was driving the vehicle and an attempt has been made to show that the opponent No. 1, who is absconding, was driving the vehicle. 6. At the time of hearing, it appeared from the panchnama of the dead body that in the pocket of the deceased, there was a driving licence. 7. The learned Tribunal below, on consideration of the materials on record, came to the conclusion that it was the victim who was driving the tempo for carrying the goods and there was no other driver. The Tribunal also took into consideration the fact that the name of the alleged driver was even deleted from the cause-title, although the driver was arrested after lapse of several days and a criminal case was initiated against such person. The fate of the said criminal case has, however, not been brought on record. 8. It further appears from the record that in proceeding under Section 140 of the Motor Vehicles Act, the statutory compensation was paid by the Insurance Company and no appeal was preferred. 9. Since an interesting question arose as to whether such conduct on the part of the Insurance Company in accepting the award under Section 140 without preferring any appeal would constitute constructive res judicata on the issue as to whether the predecessor-in-interest of the claimants was the real driver or not, this Court requested Mr. Mihir Thakore, the learned Senior Advocate, to assist the Court as amicus curiae. 10. After hearing Mr. Mihir Thakore, the learned Senior Advocate, to assist the Court as amicus curiae. 10. After hearing Mr. Thakore and the learned counsel for the parties, it appears that the finding on the question of negligence of the driver in the proceedings under Section 140 of the Act not binding in the subsequent proceeding under Section 166 of the Act, such finding cannot stand in the way of the Insurance Company in taking the plea in the proceedings under Section 166 of the Act that the real driver was negligent. 11. As regards the facts of the present case, we find that on the face of it, the conduct of the claimants in deleting the name of the driver raises a suspicion on the question of genuineness of the claim. The learned Advocate appearing on behalf of the appellants submitted before this court that as the notices could not be served upon the alleged driver in spite of repeated attempts, his clients were advised to delete the name of the driver to avoid delay and he prays for giving an opportunity to his clients to add the said driver. 12. From the materials on record, it appears that a duty was also cast upon the owner of the vehicle, who is the mother of claimants No. 1 to 3, to come in witness-box to depose that opponent No. 1, since deleted, was the real driver appointed by her and she should have offered herself for cross-examination by the Insurance Company. Similarly, the alleged driver was the best witness and in such circumstances, the real fact will come on record if the said driver is brought on record. Moreover, the accident having occurred long ago, it is also necessary to inquire about the fate of the criminal case lodged against the said driver and the nature of defence, if any, taken by the accused in the said proceedings. 13. Since the provisions for compensation under the Motor Vehicles Act are beneficial piece of legislation in favour of the family of the victim, instead of affirming the dismissal of the proceedings, I give an opportunity to the claimants to make the said driver a party so that the Tribunal can come to a definite conclusion as to the genuineness of the claim. If after being added as a party, the said driver does not appear, the Insurance Company would be free to issue summons for his appearance as a witness. The parties would be free to produce the materials placed in the criminal proceedings arising out of the death of the victim for the purpose of ascertaining the defence of the opponent No. 1. 14. I, therefore, set aside the impugned award dated July 22, 2004 passed by the Motor Accident Claims Tribunal [Aux.] at Ahmedabad in MACP No. 259 of 2000 and remand the matter to the Tribunal below for retrial, after giving an opportunity to the appellants to make opponent No. 1 as party. Such step should be taken by the appellants positively within one month from the date of receipt of the record and proceedings by the Tribunal below. In the proceedings after remand, the parties will be entitled to lead further evidence and the Tribunal will proceed with the matter afresh after taking into consideration the evidence already on record as also the other fresh evidence that will be adduced. Since the matter is pending for a long time, the Tribunal is directed to dispose of the proceeding positively within six months from the date of arrival of the record. 15. The appeal is allowed accordingly. No order as to costs. 15.1 The Registry is directed to forthwith return the record and proceedings to the Tribunal. 16. This Court records the appreciation of the assistance rendered by Mr. Thakore, the learned Senior Advocate, in this appeal.