GAYATRIBEN WD/O. SHAILESHKUMAR GYASIRAM MISTRY (LHS OF DECD. SHAILESHKUMAR GYASIRAM MISTRY) vs JAKIRHUSEN KHANJIBHAI VIJAPURA

C/FA/2225/2026 JUDGMENT DATED: 19/10/2026
(GJHC240170822026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2225 of 2026
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GAYATRIBEN WD/O. SHAILESHKUMAR GYASIRAM MISTRY (LHS OF
DECD. SHAILESHKUMAR GYASIRAM MISTRY) & ORS.
Versus
JAKIRHUSEN KHANJIBHAI VIJAPURA & ANR.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2,3
MS HINA DESAI(1023) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 19/10/2026
JUDGMENT
1. Heard learned advocate Mr. Hiren Modi, appearing
for the appellants–original claimants, and learned advocate
Ms. Hina Desai, appearing for respondent No. 2– Gujarat
State Road Transport Corporation.
2. Admit. Learned advocate Ms.Hina Desai waives
service of notice of admission for respondent No.2- Gujarat
State Road Transport Corporation.
3. By way of the present appeal under Section 173 of
the Motor Vehicles Act, 1988, the appellants–original
claimants has challenged the judgment and order dated
23.08.2023 passed by the learned Motor Accident Claims
Tribunal (Auxiliary), Idar, in MACP No. 32 of 2021, whereby
the learned Tribunal dismissed the claim petition on the
ground that the deceased, Shaileshkumar Gasiram Mistry was
wholly negligent in causing the road accident.
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4. Brief facts of the case are as under:
4.1 On 17.02.2021, at about 9:15 a.m., the deceased,
Shaileshkumar Gasiram Mistry was riding his motorcycle
bearing registration No.GJ-09-CV-0382 from Vadali to
Khedbhrama at a slow speed, on the correct side of the road
and in compliance with the traffic rules. When he reached
near the crossroads at village Shamnagar, the driver of the ST
bus bearing registration No.GJ-18-Z-2375 suddenly applied
the brakes and stopped the bus without giving any signal. As a
result, the deceased, who was riding the motorcycle behind
the bus, rammed into the rear portion of the bus and
sustained fatal injuries and succumbed.
4.2 In the aforesaid background, the legal
representatives of the deceased, Shaileshkumar Mistry,
preferred a claim petition under Section 166 of the Motor
Vehicles Act, 1988, seeking compensation of Rs.60,00,000/-,
along with interest and costs.
4.3 The learned Tribunal, after framing the issues,
considering the defence raised by the ST Corporation and
examining the evidence on record, dismissed the claim
petition, holding that the deceased was wholly negligent in
causing the road accident.
4.4 Being aggrieved, the appellants – claimants are
before this Court by way of appeal.
5. I have considered the submissions advanced by the
learned advocates for the respective parties and perused the
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record and proceedings, as well as the impugned judgment
and order. At the outset, it would be appropriate to refer to
paragraph 17 of the impugned judgment, wherein the reasons
for dismissing the claim petition have been recorded which is
as under:
“[17] Looking to the pleadings of the claimants, claimant No.
1 is not a eye-witness of the accident. Further looking to the
F.I.R there were a pillion-rider with the deceased on his
motorcycle at the time of accident. But the claimants are
silent about that. Said pillion-rider is eye witnees of this
accident but he has not entered in witness box to show the
real fact. While opponent No. 1 the driver of S.T. Bus is an
eye witness and as per the say of opponent No. 1 when his
bus was standing at bus stand for dropping the passengers
at that time deceased came with his motorcycle driving it
rashly and negligently and dashed with standing S.T.Bus and
thus accident occurred due to sole negligence of deceased.
Further looking to F.I.R. it was filed against deceased. The
claimants submitted that false complaint was lodge but
claimants themselves have produced the no action was taken
by claimant. But after investigation Summary report was
filed. Considering the Summary Report filed by the police
produced on record vide Ex.33, the police has filed "A"
Summary Report due to death of deceased-Shaileshkumar
(accused of accident). The opponents have produced two
photographs of S.T.Bus No.GJ-18-Z-2375 at the time of
incident vide list Ex.31. Perusing said photographs it seems
that motorcycle dashed with S.T.Bus No.GJ-18-Z-2375, on
the rear side of standing bus and half portion of the
Motorcycle was inside the rear side of the S.T.Bus. So,
looking to the position of both the vehicles it can be said that
deceased-Shaileshkumar was in full speed.18] Considering
the above factual aspect and the evidence on record, the
claimant No. 1 has admitted that the complaint was filed
against her husband i.e. deceased Shaileshkumar Gasiram
Mistry. The claimants has produced F.I.R. vide Ex.19 and
panchnama of the scene vide Ex.20. On perusing the F.I.R. it
is filed by the driver of S.T.Bus bearing Registration No.GJ-
19-Z-2375 i.e. opponent No.1 against the deceased-
Shaileshkumar, who was driving motorcycle at the time of
accident. Even otherwise, considering the contents of the
F.I.R., the driver of the S.T. Bus has categorically stated that
when his bus was stopped at Bus stand for dropping the
passengers at that time the driver of the Motorcycle i.e. the
deceased came in full speed and dashed with the S.T. Bus at
its rear portion. Thus, it is proved accident occurred due to
negligence on the part of deceased himself and in that
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accident deceased has sustained serious injuries and
succumbed to the death. Therefore, this Tribunal is of the
view and opinion that the present accident occurred due to
negligent driving of deceased himself. Therefore, I answer
issue No.1 in Negative”.
6. On perusal of the reasons assigned by the learned
Tribunal, it appears that the Tribunal was swayed by the fact
that an FIR had been registered and a charge-sheet had been
filed against the deceased and, on that basis, concluded that
the deceased was wholly negligent in causing the road
accident. While dismissing the claim petition, the learned
Tribunal failed to adequately consider the other evidence
available on record or undertake an objective assessment of
the conduct of all the parties involved and the other relevant
circumstances. It further appears that the learned Tribunal
relied upon the cross-examination of the claimants, even
though the claimants was not an eyewitness to the accident.
The learned Tribunal also drew an adverse inference from the
failure to examine the pillion rider. However, it failed to
consider whether the ST bus had been stopped in the middle
of the road and whether the place where the bus was stopped
was a designated bus stop at which the driver was required or
permitted to stop the bus.
7. The learned Tribunal also failed to examine
whether the driver of the ST bus had switched on the parking
lights or taken any other precautionary measure to indicate
that the bus was about to stop at that particular place. It is
also relevant to note that the ST bus was proceeding ahead of
the deceased, who was riding the motorcycle behind it. These
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circumstances were required to be considered while
determining the negligence of the parties involved in the
accident.
8. The Hon’ble Supreme Court, in Pramila and Others
v. Rajendra and Others , reported in 2026 LiveLaw (SC) 433,
while dealing with the determination of negligence, has held
that such determination must be founded upon a balanced and
objective assessment of the conduct of all the parties involved.
Paragraph 24 of the said judgment reads as under:
“24. It is well settled that in cases arising out of motor
accidents, the determination of negligence must be founded
upon a balanced and objective assessment of the conduct of
all parties involved, particularly where the circumstances
suggest a possible sharing of responsibility. The complete
exclusion of contributory negligence on the part of one
driver, especially in a head-on collision, ordinarily warrants a
careful scrutiny of the surrounding circumstances, including
the manner of driving, the point of impact, and other
attendant factors. The impugned findings, however, do not
reflect such an exercise having been undertaken.”
9. At this juncture, learned advocate Ms. Hina Desai,
appearing for the respondent–GSRTC, submits that paragraph
17 of the impugned judgment, reproduced hereinabove,
records that the driver of the ST bus had stopped the bus at
the bus stand for the purpose of allowing passengers to alight.
However, when no evidence on record appears to support
such a finding, the conclusion of the learned Tribunal that the
bus had been stopped at a bus stand appears to be based on
an assumption rather than on an appreciation of the evidence.
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10. Another judgment relevant to the issue is Oriental
Insurance Company Limited v. Kalu Ram , reported in (2026)
7 SCR 195, wherein the Hon’ble Supreme Court has again
discussed the necessity of examining the totality of the
circumstances while determining negligence. In paragraph
Nos.14 to 16, the Hon’ble Supreme Court has observed as
under:
14. Insofar as the question of negligence is concerned, we
find no reason to take a view different from that
concurrently taken by the Tribunal and the High Court. The
evidence on record, particularly the testimony of Nikhil
Kumar Jain, who himself was an injured eyewitness to the
occurrence, establishes that the offending truck had been
stationed on the road without parking lights, indicators,
reflectors or any cautionary signs. The accident having
occurred at about 3:00 a.m., the absence of such warning
measures assumes significance. The said testimony has
remained materially unshaken.
15. The defence set up by the driver and owner of the
offending truck was that the vehicle had suffered puncture in
its rear tyres and had been stationed on the extreme left side
of the road. However, neither the driver nor the owner
entered the witness box to substantiate such plea. In the
absence of any evidence from the side of the truck driver,
the Tribunal was justified in drawing an adverse inference
against them. The site photographs and the attendant
circumstances also do not support the case that the truck
had been stationed with due care and caution.
16. The mere fact that the Wagon-R collided with the truck
from behind cannot, by itself, lead to an inference of
negligence on the part of its driver. The issue of negligence
has to be examined in the totality of circumstances. A
stationary vehicle occupying the road in the dead of night
without any warning indication poses an evident hazard to
road users. The Tribunal and the High Court have, on
appreciation of the evidence, rightly concluded that the
proximate cause of the accident was the negligent act of the
truck driver in leaving the vehicle unattended on the road
without adequate precautionary measures.
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C/FA/2225/2026 JUDGMENT DATED: 19/10/2026
(GJHC240170822026)
11. In view of the above, I find that the record does not
reflect that the learned Tribunal undertook a comprehensive
exercise to consider the totality of the circumstances
surrounding the accident. The approach adopted by the
learned Tribunal in attributing sole negligence to the
deceased, substantially on the basis of the FIR and the
charge-sheet, without adequately evaluating the other
evidence and relevant circumstances, cannot be sustained.
Considering the aforesaid facts and circumstances, this Court
is of the opinion that, in the interest of justice, the matter
deserves to be remanded to the learned Tribunal for fresh
consideration, permitting both parties to lead further
evidence, if they so desire,
12. For the foregoing reasons, following order is
passed:
12.1 The present appeal is allowed. The impugned
judgment and order dated 23.08.2023 passed by the learned
Motor Accident Claims Tribunal (Auxiliary), Idar, in MACP No.
32 of 2021, is hereby quashed and set aside. Consequently,
Civil Application, if any, does not survive and stands disposed
of.
12.2 The proceedings of MACP No.32 of 2021 are
remanded and restored to the file of the learned Motor
Accident Claims Tribunal (Main), Sabarkantha, at
Himmatnagar, for fresh consideration in accordance with law.
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12.3 The learned Tribunal shall decide the claim petition
th
within a period of 3 months from 5 November, 2026. Both the
parties shall be at liberty to lead further evidence, if so
advised and desirous.
12.4 It is clarified that the matter shall not be
transferred to any other Claims Tribunal and shall be decided
by the learned Motor Accident Claims Tribunal (Main),
Sabarkantha, at Himmatnagar.
12.5 The learned Claims Tribunal shall decide the claim
petition afresh on its own merits, strictly in accordance with
the evidence on record and in accordance with law, without
being influenced by the earlier judgment and award or by any
observations made by this Court hereinabove.
12.6 Both the parties shall remain present before the
learned Tribunal on 05.11.2026.
12.7 The Registry is directed to transmit the record and
proceedings (R&P), if any, to the learned Motor Accident
Claims Tribunal (Main), Sabarkantha, at Himmatnagar, before
5th November 2026.
(J. C. DOSHI,J)
MANOJ
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