FAIBABEN JAGUBHAI KHACHAR Vs. MANSUKHBHAI KALUBHAI VAGHELA

JUDGEMENT

(1.) Ms. Falguni Trivedi, learned advocate for the appellants submits that the claimants are challenging the order dtd. 24/5/2019 pronounced in MACP No.727/13 when the compensation granted is only Rs.50,000.00 by the Tribunal when it was a specific case that Jagabhai Merambhai had died due to accident during the treatment. Ms. Trivedi submits that the learned Tribunal ought to have believed the examination-in-chief of the applicant no.3 - father of the deceased who had very categorically stated that his son was traveling from Tramba to Rajkot in his rickshaw on 19/11/2012 at 8-00 p.m. in a moderate speed with all caution on the correct side of the road. A luxury bus no.GJ-4 Z-514 came in an excessive speed and dashed the rickshaw from behind and as a result, the deceased lost control over the rickshaw and sustained serious injuries. Ms. Trivedi submits that father had stated that thereafter, the son was hospitalized and during the course of treatment, he died. Over and above chief examination, the claimants had produced FIR, Panchnama, school leaving certificate of the deceased, driving license of the bus driver, R.C. Book of bus no.GJ-4 Z-514 and medical bills below Exh.24 in support of the contention. After relying on the medical certificate at Exh.23 which showed that Jagabhai Merambhai sustained grievous injuries and the charge sheet was also filed against driver of the bus no. GJ-4 Z-514 and on that basis, the learned Tribunal came to the conclusion that the accident took place because of the sole negligence on the part of bus driver and because of the accident, Jagabhai Merambhai sustained grievous injuries and accordingly, issue no.1 was answered in affirmative.

(2.) Ms. Falguni Trivedi submits that issue no.2 was raised regarding the entitlement of the right of the applicants to the compensation amount. While deciding the issue, the learned Tribunal had observed the fact that Jagabhai Merambhai has sustained grievous injuries in the accident and he was receiving the treatment. Ms. Falguni Trivedi submits that the father has clearly stated about the death of the deceased Jagabhai Merambhai, but the death certificate could not be produced on record. The learned Tribunal also considered that since in absence of the postmortem report, the death of person does not get reflected nor the charge sheet reflects the death of Jagabhai Merambhai and hence, no report was filed by the I.O. for adding Sec. after the charge sheet and further the learned Tribunal making contrary observation has observed that the claimants have produced bills of Jagabhai Merambhai, but there is no document which could show that Jagabhai Merambhai had died due to accident or in the midst of the treatment. While the learned Tribunal has found from the documentary evidence that the accident occurred due to rash and negligent driving of the opponent no.1, while the claimants have not produced any disability certificate of the deceased nor the evidence of death, but has placed reliance on the medical bills of Jagabhai Merambhai worth Rs.3,42,810.62 and concluded that the entire record reflects that Jagabhai Merambhai has previous injuries due to the accident and therefore, the learned Tribunal awarded a lumpsum amount of Rs.50,000.00, while deducting the amount of Rs.25,000.00 which was passed under Sec. 140 of the Motor Vehicles Act, 1988.

(3.) Ms. Falguni Trivedi submits that the claimants as legal heirs of Jagabhai Merambhai had filed the claim petition. The very fact itself suggests that the death of the deceased was accidental. However, Ms. Falguni Trivedi submits that the learned Tribunal had to take appropriate steps by calling for the death certificate which would certainly have been registered before the competent authority, which in this case is Talati-cum-Mantri, Chanpa/Kherdi Gram Panchayat. Ms. Trivedi submits that the claim petition is required to be filed under format form and no further details could be added and since the deceased had initially sustained injuries and thereafter, during the course of the treatment, he died, the date of death could not be noted in the claim petition since the claim petition format does not permit and thus, submits that under these circumstances, in failure of production of death certificate, the learned Tribunal ought to have called upon the claimants to produce the same and further submits that no challenge has been given to the date of death or the death itself, as none had appeared from the side of the opponents as had been observed in Paragraph 4 of the judgment. Hence, the evidence of the claimants had remained unchallenged.