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Gujarat High Court · body

2019 DIGILAW 481 (GUJ)

MAKNA HIRA DINDOR v. KANUBHAI MANABHAI VASAVA

2019-04-29

B.N.KARIA

body2019
ORDER : 1. The present appellants, being dissatisfied with the judgment and award passed by the Motor Accident Claims Tribunal (Aux.) 3rd Fast Track Court, Panchmahal at Godhra in MACP No. 1055/1998 and MACP No. 1056/1998 dated 18th September 2016, have preferred these separate appeals before this Court under Section 173 of the Motor Vehicles Act. 2. As the accident was common and considering the evidence on record, common order was passed by the tribunal and this appeal is taken up for final hearing and common order is passed. 3. Brief facts of the present case are as under: Claim petition No. 1055 of 1998 was filed by the applicant on account of death of his wife Savitaben in the motor vehicular accident while claim petition No. 1056 of 1998 was filed by the claimant on account of death of her daughter namely Manjulaben against the opponents claiming amount of compensation to the tune of Rs. 5,20,000/- in MACP No. 1055 of 1998 and Rs. 2,10,000/- in MACP No. 1056 of 1998 . As per the averments made in the claim petition, on 15th May 1998, the applicant alongwith his wife Savitaben and daughter Manjulaben were travelling in a tempo, bearing registration No. GJ-20-T-3096 as an owner of the goods and were proceeding from Motirath to Santarampur. That, the fare of the tempo was paid to the opponent no.1. The opponent no.1 was driving his tempo with an excessive speed, rashly and negligently and lost control over the tempo at about 10.00 o’clock in the morning nearby Motirath 52 Tarkoni Nal village. In the said accident, wife of the applicant namely Savitaben and daughter Manjulaben were died on the spot. That, police complaint was lodged against the opponent no.1 before the Ditwa Police Station, being CR No. I-19/1998. That, the tribunal issued notice to the opponents, they remained absent, and therefore, the proceedings were ordered to be proceeded exparte against them. 4. Written statement was filed by the opponent no.3 vide Ex. 18 in MACP No. 1055 of 1998 and contentions raised by the applicant were not admitted by this opponent except specifically admitted. That, the tribunal issued notice to the opponents, they remained absent, and therefore, the proceedings were ordered to be proceeded exparte against them. 4. Written statement was filed by the opponent no.3 vide Ex. 18 in MACP No. 1055 of 1998 and contentions raised by the applicant were not admitted by this opponent except specifically admitted. Involvement of the tempo, bearing registration No. GJ-20-T-3096, the date of the accident, the applicant/deceased were travelling as an owner of the goods paying fare of the tempo, earning part as stated by the applicant, place of the accident, date of the accident and manner in which the alleged accident was occured, negligence on the part of the opponent no.1 for causing accident were not admitted. Any injury sustained by the deceased in motor vehicular accident was denied by this opponent. The age and income of the deceased at the time of accident or entitlement of compensation which is prayed by the applicant was also not admitted. Ultimately, it was requested by opponent no.3 to dismiss the claim petition. With the same contents, another written statement was filed by the said opponent vide ex. 19 in MACP No. 1056 of 1998. 5. The tribunal, after framing the issues and recording the evidence produced by the parties, was pleased to allow the claim petitions in part against the opponents no.1 and 2 held them liable to pay the compensation as per the order dated 18.09.2006 and the claim petitions against the opponent no.3 was dismissed by the tribunal. Hence, these appeals are preferred by the claimant. 6. Heard learned advocate for the appellants in both the appeals. 7. It was submitted by learned advocate for the appellants that the order passed by the tribunal is contrary to law, illegal, unjust and unreasonable. It is further submitted that it was clear case of the applicant that the deceased was travelling as an owner of the goods in tempo, bearing registration No. GJ-20-T-3096. However, the learned tribunal has committed an error in not considering the facts of the case. It is further submitted that it was clear case of the applicant that the deceased was travelling as an owner of the goods in tempo, bearing registration No. GJ-20-T-3096. However, the learned tribunal has committed an error in not considering the facts of the case. That, merely because non discloser of the goods in the complaint as well as in the panchnama of scene of offence drawn by the investigating agency, the tribunal has committed a grave error in not considering the facts of the case and averments made by the applicant that the wife and daughter of the applicant were travelling as an owner of the goods hiring tempo with fare of Rs. 750/-. That, impugned order passed by the tribunal exonerating the opponent no.3 is contrary to evidence on record, and therefore, it was requested by learned advocate for the appellants to quash and set aside the impugned judgment and order and fix the liability of the respondent no.3 for paying the compensation awarded by the tribunal. 8. No argument was advanced for and on behalf of the respondents. 9. Having perused the record of the tribunal and submissions made by learned advocate for the appellants in the claim petitions preferred by the applicant, it was averred that on 11th May 1998, deceased Savitaben, her husband and her daughter Manjulaben hired the tempo, bearing registration No. GJ-20-T-3096 by loading goods for going to Santarampur from Motirath. The deceased, her husband and daughter were travelling in the said tempo with their goods on payment of hire charges to the opponent no. 1. Thereafter, the allegation of rash and negligent driving of the opponent no.1 were made by the applicant in their claim petitions. In the written statement filed by the opponent no.3 vide ex. 18, the facts as averred by the applicants were denied about hiring of the tempo by the deceased Savitaben, her husband and daughter on 15th May 1998 and were travelling as owner of the goods. In written statement in MACP No. 1056 of 1998 vide Ex. 19, same contentions were raised by the said opponent. 10. If we consider the complaint lodged by Parvatbhai Amrabhai on 15th May 1998, he has only averred the accident and number of tempo, bearing registration No. GJ-20-T-3096. One male person and one woman were found dead in at the place of the accident. 19, same contentions were raised by the said opponent. 10. If we consider the complaint lodged by Parvatbhai Amrabhai on 15th May 1998, he has only averred the accident and number of tempo, bearing registration No. GJ-20-T-3096. One male person and one woman were found dead in at the place of the accident. He inquired in respect of the names of the deceased and found their names. During the course of investigation, it appears that panchnama of scene of offence was drawn by the investigating agency. The damage caused to the motor vehicle tempo was shown in the panchnama. It is nowhere stated either in the complaint or described in the panchnama that any goods was lying nearby the tempo means at the scene of offence. The deceased was travelling as an owner of the goods, as per say of the applicant. Post mortem reports of the deceased were produced vide Ex. 24 and Ex. 25. In the examination in chief on affidavit filed by Shri Maknabhai Hirabhai Dindor, he has stated that he himself, his wife and his minor daughter Manjula were proceeding to Morbi in a tempo, bearing registration No. GJ-20-T-3096 hired by them with fare of Rs. 750/- alongwith goods. At that time, driver of the tempo ie., opponent no.1 was driving his motor vehicle in rash and negligent manner and caused the accident. It was further stated that the complaint was lodged against the opponent no.1 before the police vide CR No. I- 19/1998 and panchnama was drawn accordingly. 11. From the record of tribunal, it appears that no any document was produced by the applicant that they had hired tempo, bearing registration No. GJ-20-T-3096 for transporting the goods or they were travelling in the same motor vehicle as an owner of the goods. The same thing was not disclosed in the complaint as well as in the panchnama drawn by the investigating agency after accident. In absence of any evidence produced by the applicant that deceased were travelling as an owner of the goods in hired tempo, arguments advanced by the learned advocate for the appellants that the deceased should be treated as an owner of the goods can not be accepted by the Court. No receipt of paying fair of hiring tempo was provided by the applicant. The motor vehicle tempo was goods vehicle and there is no dispute in respect of the same. No receipt of paying fair of hiring tempo was provided by the applicant. The motor vehicle tempo was goods vehicle and there is no dispute in respect of the same. The tribunal has rightly answered the issues against the present applicant by exonerating the respondent no.3 for paying amount of compensation. As per opinion of this Court, the tribunal has committed no error in arriving at the conclusion holding the liability of the opponents no.1 and 2 and exonerating the insurance company from paying amount of compensation. 12. Hence, this Court is of the view that both the appeals deserves to be dismissed and are accordingly, dismissed. However, there shall be no order as to the costs. 13. Record and proceedings be sent back to the concerned Motor Accident Claims Tribunal.