FA/359/1988 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 359 of 1988 With FIRST APPEAL No. 360 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== MENABEN SULEMANBHAI UMARBHAI AND ANOTHER Versus CHANDUBHAI BHAICHANDBHAI BHANGI AND ANOTHER ====================================== Appearance : MR KB PUJARA for Appellants. MR MD PANDYA for Respondents. ====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 23/01/2008 COMMON ORAL JUDGMENT 1. Out of the appellants, appellant no.1 - mother is stated to have passed away and, hence, the appeals as far as she is concerned stand abated. As for appellant no.2, who was aged three years in 1983 is FA/359/1988 2/3 JUDGMENT supposed to have become major and learned counsel for the appellant has argued the appeals on his behalf. 2. The appeals are preferred from the common judgment dated 22- 10-1986 of MACT (Main), Palanpur, in MACP No.244 of 1983 and MACP No.245 of 1983. The first petition No.244 of 1983 was made under Section 92 A of the erstwhile Motor Vehicles Act, 1939 for immediate relief of Rs.15,000/- and the other petition was made for compensation of Rs.1,50,000/-. Conducting both the petitions and deciding them together, the Tribunal has recorded the findings that although the deceased had died out of accident involving the vehicle driven by respondent no.1 and owned by respondent no.2, the driver was not negligent. The Tribunal also observed that there was no satisfactory evidence to show that appellant no.2 was the son of the deceased and that appellant no.1 was the guardian of that minor boy. However, on perusal of the evidence on record, more particularly, deposition of Fejmohmed at Exh.17, it was clearly established that the minor boy was residing with the deceased father even as his mother had been divorced and she had married another person. Thus, it was fairly clear that even in absence of negligence of the driver of the motor vehicle, liability to pay compensation under Section 92 A had arisen and appellant no.2 was entitled to claim that amount. 3. Apparently, the Claims Tribunal has completely failed to entertain the claim of the appellants under Section 92 A and it has been rejected without any discussion in that regard. 4. Accordingly, First Appeal No.359 of 1988 is allowed with the direction that respondent shall pay to appellant no.2, a sum of Rs.15,000/- with interest at the rate of 9% from the date of application FA/359/1988 3/3 JUDGMENT till realization and cost althroughout. First Appeal No.360 of 1988 is dismissed with no order as to costs. (D.H.Waghela, J.) /malek