RELIANCE GENERAL INSURANCE CO LTD. v. MANSINH BHINSINH BAGER (GADERIYA)
Court: High Court of Gujarat
Bench: HONOURABLE MS. JUSTICE GITA GOPI
Judgment date:
Case summary
High Court of Gujarat judgment dated 2024-02-08. RELIANCE GENERAL INSURANCE CO LTD. v. MANSINH BHINSINH BAGER (GADERIYA). Read the judgment and case details...
Judgment text
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 2010 of 2024 With R/SPECIAL CIVIL APPLICATION NO. 2080 of 2024 With R/SPECIAL CIVIL APPLICATION NO. 2083 of 2024 With R/SPECIAL CIVIL APPLICATION NO. 2099 of 2024 ========================================================== RELIANCE GENERAL INSURANCE CO. LTD. Versus MANSINH BHINSINH BAGER (GADERIYA) ========================================================== Appearance: MASUMI V NANAVATY(9321) for the Petitioner(s) No. 1 MR VIBHUTI NANAVATI(513) for the Petitioner(s) No. 1 for the Respondent(s) No. 1,2,3,4,5,6,7 ========================================================== CORAM:HONOURABLE MS. JUSTICE GITA GOPI Date : 08/02/2024 COMMON ORAL ORDER 1. Learned advocate Mr. Tirth Nayak states of havin instructions to appear on behalf of the originl claimants. Let his Vakalatnama be accepted. 2. Learned advocate Mr. Vibhuti Nanavati for t petitioner states that common order below Exh. 154 was passed in MACPs no.
707, 708, 734 and 735/2011 which were the applications given by the insuran company – opponent no. 3 making a prayer to join driver Mansinh Bhinsinh Bajar (Gaderiya) s opponent and a prayer was also made to issu summons to Investigating Officer – Anopsin Ajitsinh Rajput. Advocate Mr. Nanavati submitt that both the prayers were rejected on 24. 1. 2024 by MACT (Aux), City Civil Court, Ahmedabad. 3. Referring to the common judgment of this Court dated 27. 9. 2023 passed in First Appeals no. 351 to 354 of 2023, Advocate Mr. Nanavati submitted t t the appeals were raised by the claimants challenging the common judgment and award dat 21. 11.
2022 passed in MACPs mentioned hereinbefor on the ground that the learned Tribunal has err in holding the driver of Indica car negligent for the vehicular accident and that the negligen aspect is not considered in accordance to t proof and on that basis, challenge was given to the Tribunal’s judgment stating to be incorret, improper, unjust and without any conclusive proo attributing negligence on the part of the r driver. It is further stated that on hearing bot the sides, the judgment and award was quashed an all the MACPs were ordered to be restored on t file of the learned Tribunal to decide the mattr on merits and further a direction was given to grant opportunity to all the parties to provi further evidence on record and the learn Tribunal was directed to consider the furt r evidence that may be provided by the partis. Advocate Mr. Nanavati submitted that since t driver was deleted from one matter being M P no.
733/2011, prayer was made to rejoin him sin he is opponent in other three claim petitions. 4. Advocate Mr. Nanavati further submitted that prayer was made for issuance of the summons to t Investigating Officer, since earlier when he w s examined as witness no. 1 on behalf of opponnt no. 3, Investigating Officer had not brought t original final report nor had brought the FIR. Advocate Mr. Nanavati submitted that now in t change circumstances of the matter being reman back for reconsideration on the negligence aspet, copy of the final report and the FIR along wit the further evidence of the witness would necessary, to be recorded as the original judgmnt and award was quashed only on this aspect, whr the claimants had raised a specific contention o incorrect observation of the Tribunal contendin that the respondent no. 1, truck driver had not given a rebuttal evidence nor there was ny independent witness to prove the fact of sol negligence of the car driver. 5.
Countering the arguments and supporting the or r of the Tribunal below Exh. 154, learned advoct Mr. Tirth Nayak for the original claimants submitted that the order below Exh. 154 cannot b subjected to challenge since the power exercis is discretionary in nature and the discretion exercised by the Tribunal is sound and since t driver is already party respondent in the mattr, there was no necessity of further joining him in all the matters and therefore, stated that t application was rightly rejected since t insurance company cannot be allowed to fill in t lacuna. Advocate Mr. Nayak has relied upon t judgment in the case of Smt. Shashi Sehdev v. S . Narender Kumar Sharma passed by the High Court o Delhi on 6. 7. 2022 to submit that exercise o powers under Article 227 of the Constitution o India would become very limited since the Court under such jurisdiction is not concerned much wit the correctness of the order impugned, as t discretion is exercised by the original Court. Thus, Mr.
Nayak urged to state that since t jurisdiction under Article 227 of the Constitution of India does not call for the supervisory correction, this Court should restrain itself, an should not unsettle the order of original Court under assumption of any such jurisdiction. 6. The matters have put to challenge the order whi has rejected the prayer, under Order 1 Rule 10 an Order 18 Rule 17 of the Code of Civil Procedur , 1908 read with Section 151 of the Code of Civil Procedure, 1908. The order impugned is in connection with the Motor Accident Claim Petition governed under the Motor Vehicles Act, 1988. Article 227 of the Constitution of India givs superintendence powers to the High Court over all Courts and Tribunals throughout the territories in relation to which it exercises the jurisdiction.
The superintendence power of the High Court is both administrative and judicial, but such powrs are to be exercised sparingly and only in appropriate cases to keep the subordinate Courts within the bounce of the authority. It is cl r that such powers of superintendence cannot exercised to influence subordinate judiciary to pass any order/judgment in a particular mannr. Section 115 of the CPC gives authority to the Hi Court to exercise the jurisdiction in case whr no appeal lies, where additional powers can also be exercised when the Court/Tribunal fails to exercise the jurisdiction so vested or have act in exercise of its jurisdiction illegally or wit material irregularity. 7. The order impugned is not appealable and when any orders are brought to the notice of the Court which stands contrary to any observation or or r made by this Court earlier, then this Court woul have all the powers to supervise such orders for correction. It is required to be noticed that t application Exh.
154 was moved by the insuran company to join the driver as opponent in t matters. All the four MACPs have b n consolidated. In all the four MACPs, driver is respondent no. 1, but in MACP no. 733 of 2011, h came to be deleted by an order below Exh. 31 an therefore, as per the record, driver is alre y respondent no. 1 as joined in the connect matters. Thus, in view of this fact, the prayer o the insurance company ought to have been allow since the only order which was necessary was to revive him as opponent no. 1 in MACP no. 733 o 2011. 8. The judgment and award passed by the Tribunal on 21. 11. 2022 in MACPs no. 707, 708, 734 and 735 o 2011 was challenged by the appellant by way o filing First Appeal, where the contention wit regard to the decision of negligence was rais and on detail observations, the judgment and awr was quashed for reconsideration. Liberty ws granted to any parties to provide further eviden on record and the learned Tribunal was directed to consider the same.
In the change circumstances o the judgment and award being quashed and when t issue of negligence was ordered to reconsidered, the application moved by t insurance company for recalling the Investigatin Officer was required to be allowed. T investigating officer, at the relevant time w n was examined before the Tribunal earlier, failed to produce a copy of the FIR as well as t report. 9. The accident as has been noted had occurr between the Indica car bearing registration no. GJ-1 KD-6432 and a truck bearing registration no. RJ-05 GA-6432 and after considering the negligen aspect, all the MACPs came to be dismissed. T complaint at Exh. 62 was referred by the Tribunl in the earlier round of proceedings. The FIR w s given by the respondent no. 1, driver of the truk. According to him, after loading the potatoes in the truck, he was going from Agra towars Bhavnagar. He was accompanied by Bhagwansin Parmaram Modi as a Conductor and when he reac Laxmi Highway Hotel at about 4. 00 a. m.
, the tyr got burst and therefore, he had parked his truk on the side of the road opposite the hotel an according to him, after parking his truck, when h was changing the tyre, one Indica car came from the side of Sirohi in rash and negligent mannr, collided with the truck and on account of t accident, the driver and the person sittin besides the driver of the car died, while thr persons sitting in the rear side of the Indica c r sustained grievous injuries. Respondent no. 1 bein the complainant of the FIR and a driver of t truck is a necessary party to the proceedings. T claimant had disputed the observations of t Tribunal. The fact has come on record that t Investigating Officer has noted certin statements. The summary report at Exh. 127 ws produced by the insurance company. However, on t date of examination of the Investigating Officr, he failed to bring copy of the FIR and the report and thus, necessary evidence could not be brou t by the insurance company on record.
Now in t changed circumstances of reappreciation of t evidence and when liberty has been granted, t learned Tribunal ought to have exercised its own power as was granted under Section 169 of the M. V. Act, where procedure and power to the Claims Tribunal has been laid down and in su circumstances, where a specific direction has b n given by this Court for the Tribunal to allow t parties to adduce further evidence, the Tribunl ought to have exercised the power under Section 169(2) of the M. V. Act, which reads as under:- “169(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 (2 of 1974). ” 10.
Thus, to the reasons given hereinabove to t position of law, Mansinh Bhinsinh Bajar (Gaderiy ) who was earlier respondent no. 1 deleted by or r below Exh. 31 in MACP no. 733/2011 be joined s party respondent no. 1. Since he is respondent in other proceedings, there would be no necessity to again issue summons to him. 11. The prayer for recalling the Investigating Officer–Anopsinh Ajitsinh Rajput is thus allowed. Accordingly, the present petitions are allowed in the above terms. Registry is directed to place a copy of this order in connected matters. (GITA GOPI,J) Maulik
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