FAHAD MAHEDI CHIKASAWALA vs IQBALHUSSAIN JAMALBHAI BHOLWALA
- Court
- Gujarat High Court
C/FA/1549/2025 JUDGMENT DATED: 28/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1549 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
No
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FAHAD MAHEDI CHIKASAWALA
Versus
IQBALHUSSAIN JAMALBHAI BHOLWALA & ANR.
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 28/07/2026
JUDGMENT
1. Admit. Learned advocate Mr. Palak Thakkar appears and
waives service of notice of admission on behalf of respondent-
Insurance Company. Though served, none appears on behalf of
respondent No.1. With the consent of both the sides, the
matter is taken up for final hearing today.
2. The captioned appeal is filed against the judgment and
nd
award passed by the learned MACT (Aux.) & 2 Addl. District
Judge, Dabhoi in M.A.C.P. No.178 of 2020 dated 04.03.2025
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whereby, the claim petition was dismissed.
3. The facts in brief are as under;
On 16.11.2018, at about 2300 hrs., one Dilavar Hussain
Iqbalbhai Bholawala was riding motor-cycle bearing
Registration No. GJ-6-LC-2922, owned by respondent No.1
herein and insured with respondent No.2, with one Mahammad
Yusuf Saladbhai Vadivala as pillion and were travelling from
Vega towards Utsav Party Plot. At that time, one unknown
vehicle, which was being driven in a rash and negligent
manner, dashed the motor-cycle from the behind and
immediately fled the place of accident. As a result of the
accident, the driver of the motor-cycle lost control of the
vehicle and dashed the appellant-claimant, who was standing
on the side of the road at the relevant point of time. In the
said accident, the driver of the motor-cycle, namely, Dilavar
Hussain Iqbalbhai Bholawala, died on the spot, whereas, the
pillion rider sustained severe injuries. The appellant-claimant
sustained severe injuries in the accident.
3.1 The appellant-claimant filed the claim petition before the
Tribunal claiming compensation of Rupees Ten Lacs with
interest. After hearing both the sides, the Tribunal dismissed
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the claim petition by way of the impugned judgment and
order. Hence, this appeal.
4. Learned advocate Mr. M. M. Hakim appearing for the
appellant-claimant submitted that at the time of accident, the
appellant-claimant was a pedestrian and was walking on the
side of the road. He sustained the injuries on account of the
composite negligence of the driver of the Truck, who
immediately fled the place of accident with the Truck as well
as the driver of the motor-cycle owned by respondent No.1
and insured with respondent No.2.
4.1 It was submitted that the Tribunal has not appreciated
the oral as well as documentary evidence on record in its
proper perspective. The evidence on record suggests that the
appellant-claimant was not involved with the vehicular
accident in any manner whatsoever and hence, no negligence
could be attributed to him. In fact, the appellant-claimant had
sustained injuries as a result of the vehicular accident
involving the Truck and Motor-cycle.
4.2 It was further submitted that since the case involves
composite negligence, the appellant-claimant can claim
compensation from any of the tort-feasors. In support of the
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submissions, reliance is placed on the decision of Apex Court
in the case of Khenyei v. New India Assurance Co. Ltd. &
others reported in (2015) 9 SCC 273 and more particularly, on
the observations made in Para-18, which reads thus;
“18. This Court in Challa Bharathamma & Nanjappan
(supra) has dealt with the breach of policy conditions by
the owner when the insurer was asked to pay the
compensation fixed by the tribunal and the right to
recover the same was given to the insurer in the
executing court concerned if the dispute between the
insurer and the owner was the subject-matter of
determination for the tribunal and the issue has been
decided in favour of the insured. The same analogy can
be applied to the instant cases as the liability of the joint
tort-feasor is joint and several. In the instant case, there
is determination of inter se liability of composite
negligence to the extent of negligence of 2/3rd and 1/3rd
of respective drivers. Thus, the vehicle – trailor-truck
which was not insured with the insurer, was negligent to
the extent of 2/3rd. It would be open to the insurer
being insurer of the bus after making payment to
claimant to recover from the owner of the trailor-truck
the amount to the aforesaid extent in the execution
proceedings. Had there been no determination of the
inter se liability for want of evidence or other joint tort-
feasor had not been impleaded, it was not open to settle
such a dispute and to recover the amount in execution
proceedings but the remedy would be to file another suit
or appropriate proceedings in accordance with law.
W hat emerges from the aforesaid discussion is as follows:
(i) In the case of composite negligence,
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plaintiff/claimant is entitled to sue both or any one of
the joint tort-feasors and to recover the entire
compensation as liability of joint tort-feasors is joint and
several.
(ii) In the case of composite negligence, apportionment
of compensation between two tort-feasors vis-a-vis the
plaintiff/claimant is not permissible. He can recover at his
option whole damages from any of them.
(iii) In case all the joint tort-feasors have been
impleaded and evidence is sufficient, it is open to the
court/tribunal to determine inter se extent of composite
negligence of the drivers. However, determination of the
extent of negligence between the joint tort-feasors is only
for the purpose of their inter se liability so that one may
recover the sum from the other after making whole of
payment to the plaintiff/claimant to the extent it has
satisfied the liability of the other. In case both of them
have been impleaded and the apportionment/ extent of
their negligence has been determined by the
court/tribunal, in main case one joint tort-feasor can
recover the amount from the other in the execution
proceedings.
(iv) It would not be appropriate for the court/tribunal to
determine the extent of composite negligence of the
drivers of two vehicles in the absence of impleadment of
other joint tort-feasors. In such a case, impleaded joint
tort-feasor should be left, in case he so desires, to sue
the other joint tort-feasor in independent proceedings
after passing of the decree or award.”
5. Per contra, Mr. Palak Thakkar, learned advocate
appearing for the respondent-Insurance Company, vehemently
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opposed the appeal and submitted that there is no infirmity in
the impugned judgment and award. It was submitted that no
negligence could be attributed to the driver of the motor-cycle
as the motor-cycle was dashed from the behind by the Truck,
which immediately fled after the accident. It was, accordingly,
urged to reject the present appeal.
6. Heard learned advocates on both the sides. Having gone
through the material on record, it transpires that before the
Tribunal, in support of his case, the appellant-claimant had
filed his Affidavit (Exh.14) and had also produced documentary
evidence in the form of certified copies of the complaint,
panchnama and final report vide Exhs.18 to 20. Before the
Tribunal, it was the case of the appellant-claimant that he had
sustained the injuries on account of the composite negligence
of the rider of the motor-cycle in question and the driver of
the Truck. However, the Tribunal seriously erred in
appreciating the above aspect.
7. In the opinion of the Court, the Tribunal lost sight of the
crucial aspect that the appellant-claimant was merely a
pedestrian on the side of the road at the time when the
accident occurred. The vehicular accident involved the motor-
cycle in question and the Truck and hence, the appellant-
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claimant could not be held negligent in the accident. Thus, the
findings arrived at by the Tribunal while appreciating the
aspect of negligence is erroneous and contrary to the material
on record.
8. Considering the facts and circumstances of the case and
the principle laid down by the Apex Court in Khenyei’s case
(supra), this Court deems it appropriate to remand the matter
back to the Tribunal concerned for adjudication afresh on
merits.
9. In the result, the appeal is partly allowed. The impugned
nd
judgment and award passed by the learned MACT (Aux.) & 2
Addl. District Judge, Dabhoi in M.A.C.P. No.178 of 2020 dated
04.03.2025 is quashed and set aside and the matter is
remanded to the Tribunal concerned for adjudication afresh on
merits. While deciding the matter, the Tribunal concerned shall
not be influenced by the fact that this Court has quashed its
earlier order and shall decide the matter on its own merits
after hearing both the sides. The Tribunal is requested to
dispose of the claim petition expeditiously and preferably
within a period of six months from the date of receipt of writ
of this order. Both the sides are directed to co-operate with
the proceedings before the Tribunal. The appeal stands
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disposed of accordingly. No order as to costs. Registry to send
the record and proceeding to the Tribunal concerned forthwith.
(MOOL CHAND TYAGI, J)
PRAVIN KARUNAN
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