Gujarat High Court
Aspan Nagshi Gadhvi vs Pareshpuri Shivpuri Goswami on 3 April, 2025
NEUTRAL CITATION
C/FA/655/2025 ORDER DATED: 03/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 655 of 2025
================================================================
ASPAN NAGSHI GADHVI
Versus
PARESHPURI SHIVPURI GOSWAMI & ORS.
================================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
DS AFF.NOT FILED (N) for the Defendant(s) No. 1,2,3
NOTICE NOT RECD BACK for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 3
NOTICE THROUGH RPAD NOT RECEIVED BACK for the Defendant(s) No.
1,2,3
NOTICE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/04/2025
ORAL ORDER
1. This Appeal is filed challenging the judgment and award
dated 01.07.2022 passed by learned Motor Accident Claims
Tribunal (Aux), Kachchh at Bhuj in Motor Accident Claim
Petition No.149 of 2017.
2. Heard learned advocate Mr. Nishit A. Bhalodi for
appellants.
3. The brief facts narrated in the petition are as under:
3.1 Claimant-appellant filed a claim application under Section
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166 of the Motor Vehicles Act, 1988 (hereinafter referred to as
“the Act”) claiming compensation of Rs.41,14,000/- against
opponents. It is alleged in the claim application that on
31.03.2016 at 10:30 hrs, claimant was riding Motorcycle
bearing Registration No.GJ-12-AS-2372, very carefully and by
following traffic rules. Opponent No.1 came from back side by
driving Bolero Car bearing Registration No.GJ-12-BF-8678
with an excessive speed in rash and negligent manner and
dashed with the motorcycle. Out of the said vehicular accident,
claimant sustained serious injuries. A complaint was registered
against the driver of a white colour unknown Mahindra XUV-
500 by Mundra Marin Police Station vide I-CR No.9 of 2016. It
is the case of the claimant that accident has occurred because of
rash and negligent driving of driver of Bolero Car. Notice of
claim petition was served upon opponent Nos.1 and 2 who are
owner and driver of the Bolero Car but they did not remain
present. Opponent No.3-Insurance Company appeared and filed
Written Statement at Exhibit-22. Issues were framed at Exhibit-
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15. In the claim petition, claimant was examined at Exhibit-28
and claimant produced FIR, Panchnama, Charge-sheet, Driving
Licence and R.C. Book of Bolero Car and other medical papers
in support of claim petition. After considering the evidence on
record, learned Tribunal dismissed the claim petition.
3.2. Being aggrieved and dissatisfied with the impugned
judgment and award, the present appellant-original claimant has
filed the present First Appeal before this Court.
4. At the outset, learned advocate for the appellant has
submitted that learned Tribunal has not followed the provisions
of the Act, and more particularly, Sections 169 and 158(6) of the
Act. It is submitted that FIR which was registered against driver
of an unknown vehicle Mahindra XUV-500 of white colour.
Charge-sheet was filed against driver of Bolero Car which is
produced at Exhibit-32. However, learned Tribunal considered
R.C. Book of Bolero Car and came to a conclusion that as per
the R.C. Book, the colour of vehicle is java brown. It is further
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submitted that when there is a question with regard to the
involvement of the vehicle, learned Tribunal ought to have
resorted to the provisions contained in the Act.
4.1. In support of submissions, learned advocate for the
appellant has placed reliance upon the decision of Hon’ble
Supreme Court in the case of Jai Prakash Versus National
Insurance Company Limited reported in (2010) 2 SCC 607 and
submitted that learned Tribunal ought to have called for Form
No.54 along with Police Investigation Report as per Section
156(4) of the Act. It is therefore, submitted that the matter may
be remanded back by giving necessary directions to the learned
Tribunal to comply with the directions issued by the Hon’ble
Apex Court in the case of Jai Prakash (supra).
5. I have considered submissions of the learned advocate for
the appellant and also perused the impugned judgment and
award. It appears that claimant has alleged in the claim petition
that on the date of accident, driver of Bolero Car bearing
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Registration No.GJ-12-BF-8678 came in rash and negligent
manner and dashed with motorcycle which resulted into serious
injuries to the claimant. A complaint being I-CR No.9 of 2016
was registered against driver of white colour unknown Mahindra
XUV-500 by Mundra Marin Police Station. Learned Tribunal
has considered R.C. Book of Bolero Car which mentions colour
of Bolero Car as java brown. In the cross-examination, claimant
has also stated that FIR is lodged against unknown vehicle
XUV-500. On perusal of the impugned judgment and award, it
appears that learned Tribunal has considered the fact that in the
case papers of Government Hospital, Mundra, wherein
treatment was taken by claimants, indicates that accident has
occurred because of involvement of a Scorpio Car with
Motorcycle. In the present case, there is a serious question with
regard to which vehicle was involved in the accident. In the
cases where there is doubt or there is no ample evidence with
regard to the involvement of the vehicle in the occurrence of
accident, learned Tribunal ought to have followed the provisions
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of Section 169 of the Act, which mandates procedure and
powers of claim Tribunals. Section 169 is reproduced as under:-
“169. Procedure and powers of Claims Tribunals. – (1) In holding any
inquiry under section 168, the Claims Tribunal may, subject to any rules
that may be made in this behalf, follow such summary procedure as it
thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for
the purpose of taking evidence on oath and of enforcing the attendance of
witnesses and of compelling the discovery and production of documents
and material objects and for such other purposes as may be prescribed;
and the Claims Tribunal shall be deemed to be a Civil Court for all the
purposes of section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973.
(3) Subject to any rules that may be made in this behalf, the Claims
Tribunal may, for the purpose of adjudicating upon any claim for
compensation, choose one or more persons possessing special knowledge
of any matter relevant to the inquiry to assist it in holding the inquiry.
[(4) For the purpose of enforcement of its award, the Claims Tribunal
shall also have all the powers of a Civil Court in the execution of a decree
under the Code of Civil Procedure, 1908, as if the award were a decree
for the payment of money passed by such court in a civil suit.]”
6. Sub-Section 2 of Section 169 gives power to claims
Tribunal that of a Civil Court for the purpose of taking evidence
on oath and of enforcing the attendance of witnesses and of
compelling the discovery and production of documents and
material objects.
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7. Section 158 of the Act, which is reproduced as under:-
“158. Production of certain certificates, licence and permit in certain
cases. – (1) Any person driving a motor vehicle in any public place
shall, on being so required by a police officer in uniform authorised in
this behalf by the State Government, produce –
(a)the certificate of insurance;
(b)the certificate of registration;
(c)the pollution under control certificate;
(d)the driving licence;
(e)in the case of a transport vehicle, also the certificate of fitness
referred to in section 56, and the permit; and
(f)any certificate or authorisation of exemption that has been granted
under this Act,
relating to the use of the vehicle.
(2) Where, owing to the presence of a motor vehicle in a public place,
an accident occurs involving death or bodily injury to another person,
if the driver of the vehicle does not at that time produce the required
certificate, driving licence and permit referred to in sub-section (1) to a
police officer, he or the owner shall produce the said certificates,
licence and permit at the police station at which the driver makes the
report required by section 134.
(3) No person shall be liable to conviction for offences under sub-
section (1) or sub-section (2) by reason of the failure to produce the
required certificate if, within seven days from the date on which its
production was required under sub-section (1), or as the case may be,
from the date of occurrence of the accident, he produces the certificate
at such police station as may have been specified by him to the police
officer who required its production or, as the case may be, to the police
officer at the site of the accident or to the officer-in-charge of the police
station at which he reported the accident:
Provided that except to such extent and with such modifications as may
be prescribed, the provisions of this sub-section shall not apply to the
driver of a transport vehicle.
(4) The owner of a motor vehicle shall give such information as he may
be required by or on behalf of a police officer empowered in this behalf
by the State Government for the purpose of determining whether the
vehicle was or was not being driven in contravention of section 146 and
on any occasion when the driver was required under this section to
produce the certificate of insurance.
(5) In this section, the expression “produce the certificate of insurance”
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means production for examination the relevant certificate of insurance
or such other evidence as may be prescribed to prove that the vehicle
was not being driven in contravention of section 146.”
8. Section 158 of the Act deals with a procedure where upon
receiving information regarding accident involving death or
bodily injury to any person is recorded by a police officer, the
officer in-charge of the Police Station shall forward a copy of
the same within 30 days from the date of recording information
and on completion of such report submit it to the claim
Tribunals having jurisdiction. Once such report is submitted
before learned Tribunals, under Sub-section 4 of Section 166,
the Tribunal shall treat the report of accidents as an application
for compensation under the Act.
9. In the case of Jai Prakash (supra), the Apex Court has
issued directions to claim Tribunals, which in my view, learned
Tribunals are not following in its letter and spirit. In paragraph
Nos.20 and 21 of the said judgment, the Hon’ble Supreme Court
has observed which are reproduced as under:
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“20. The Registrar General of each High Court is directed to instruct
all Claims Tribunals in his State to register the reports of accidents
received under Section 158(6) of the Act as applications for
compensation under Section 166(4) of the Act and deal with them
without waiting for the filing of claim applications by the injured or by
the family of the deceased. The Registrar General shall ensure that
necessary registers, forms and other support is extended to the
Tribunal to give effect to Section 166(4) of the Act.
21. For complying with Section 166(4) of the Act, the jurisdictional
Motor Accident Claims Tribunals shall initiate the following steps:
(a) The Tribunal shall maintain an Institution register for
recording the AIRs which are received from the Station
House Officers of the police stations and register them as
miscellaneous petitions. If any private claim petitions are
directly filed with reference to an AIR, they should also be
recorded in the register.
(b) The Tribunal shall list the AIRs as miscellaneous
petitions. It shall fix a date for preliminary hearing so as to
enable the police to notify such date to the victim (family of
victim in the event of death) and the owner, driver and
insurer of the vehicle involved in the accident. Once the
claimant(s) appear, the miscellaneous application shall be
converted to claim petition. Where a claimant(s) file the
claim petition even before the receipt of the AIR by the
Tribunal, the AIR may be tagged to the claim petition.
(c) The Tribunal shall enquire and satisfy itself that the
AIR relates to a real accident and is not the result of any
collusion and fabrication of an accident (by any “police
officer-advocate-doctor” nexus, which has come to light in
several cases).
(d) The Tribunal shall by a summary enquiry ascertain
the dependent family members/legal heirs. The
jurisdictional police shall also enquire and submit the
names of the dependent legal heirs.
(e) The Tribunal shall categories the claim cases
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and those where the insurer does not dispute the liability.
(f) Wherever the insurer does not dispute the liability
under the policy, the Tribunal shall make an endeavour to
determine the compensation amount by a summary
enquiry or refer the matter to the Lok Adalat for
settlement, so as to dispose of the claim petition itself,
within a time frame not exceeding six months from the
date of registration of the claim petition.
(g) The insurance companies shall be directed to deposit
the admitted amount or the amount determined, with the
Claims Tribunals within 30 days of determination. The
Tribunals should ensure that the compensation amount is
kept in a fixed deposit and disbursed as per the directions
contained in Kerala SRTC. V. Susamma Thomsas.
(h) As the proceedings initiated in pursuance of
Section 158(6) and 166(4) of the Act, are different in
nature from an application by the victim(s) under
Section 166(1) of the Act, Section 170 will not apply. The
insurers will therefore be entitled to assist the Tribunal
(either independently or with the owners of the vehicles)
to verify the correctness in regard to the accident,
injuries, age, income and dependents of the deceased
victim and in determining the quantum of
compensation.”
10. In many of the cases, such as the present one, learned
Tribunals instead of following the directions issued by Apex
Court, straightaway conduct the motor accident cases without
seeking any reports from the police Officer under whose
jurisdiction, accident has occurred.
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11. It appears from the facts narrated by learned Tribunal in its
award that there was no clarity as to which vehicle was involved
in the accident. In such cases, as discussed above, rather than
resorting to the provisions of Section 158(6) and Section 169 of
the Act, learned Tribunal straightaway decided the claim
petition and dismissed on the ground that claimants could not
establish as to which vehicle was involved in the accident. As
observed by learned Tribunal, this is a case of hit and run and as
per the statement of claimant in the cross-examination, the
accident has occurred by an unknown vehicle which was not
traced out. When learned Tribunal was having evidence to the
fact that the accident has occurred by an unknown vehicle, it
ought to have called for Form No.54 and other police papers
which are mandatory. Instead of calling reports from the
concerned police authority, learned Tribunal decided claim
application which is against the settled law laid down in the case
of Jai Prakash (supra).
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12. In the backdrop of the above facts, the judgment and
award dated 01.07.2022 passed by learned Motor Accident
Claims Tribunal (Aux), Kachchh at Bhuj in Motor Accident
Claim Petition No.149 of 2017, is hereby quashed and set aside
with a direction to the learned Tribunal to follow the directions
given by the Hon’ble Supreme Court in the case of Jai Prakash
(supra). The process of calling reports from the concerned
police authority shall be undertaken within a period of 10 days
from the date of receipt of a copy of this order and once the
police machinery is put into motion, the concerned jurisdictional
police authority shall complete the process of investigation and
submit a report within a period of 15 days thereof. Upon the
receipt of report from the jurisdictional police authority, learned
Tribunal shall see that claim petition is heard afresh and shall
decide the claim petition preferably within a period of three
months from the date of receipt of the report from the concerned
police authority.
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13. All the concerned parities are directed to give full co-
operation to the learned Tribunal in disposing of the claim
petition without seeking any unnecessary adjournments.
14. Parties are directed to produce any evidence, if they wish
to, within a period of 15 days from the submission of report by
jurisdictional police authority before the learned Tribunal,
thereafter, parties shall not allowed to submit any documentary
evidence in support of their respective cases.
15. Record and proceedings, if any, be sent back to the learned
Tribunal forthwith.
(D. M. DESAI,J)
RINKU MALI
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