GUJARAT NATIONAL LAW UNIVERSITY

COURT VISIT REPORT: HIGH COURT OF GUJARAT,

AHMEDABAD
SUBJECT: CLINICAL PAPER - II


SUBMITTED TO: MR. MARISPORT, MR. HARDIK PARIKH





SUBMITTED BY: TIRTHA MUKHERJEE
REG. NO.: 10B144

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Our visit to the High Court of Gujarat was scheduled on the 4
th
of September, 2014.
The High Court of Gujarat was established on 1
st
May, 1960 as a result of the former State of
Bombays bifurcation into two separate states. The present complex of the High Court has
been recently built, in the year 1999. The complex is aesthetically very pleasing and spread
out over a large area. The courtrooms are technologically well equipped and devoid of any
unnecessary clutter. The entire setup allows for a good learning experience for those who
want to observe proceedings and thereby imbibe the court culture.
Personally, I witnessed on-going proceedings in the following court rooms:-
Court Room 1: Honble The Chief Justice Mr. Bhaskar Bhattacharya
Court Room 2: Honble Mr. Justice V.M. Sahai & Honble Mr. Justice R.P. Dholaria
Court Room 6: Honble Mr. Justice K.S. Jhaveri & Honble Mr. Justice A.G. Uraizee
Court Room 7: Honble Mr. Justice A. Kureshi & Honble Mr. Justice J.B. Pardiwala
Though it is difficult to follow the dynamics of an on-going matter in court without having
been apprised of the material facts and particulars of the case, I have tried my best to figure
out and understand the proceedings that I witnessed. It was also a lot easier to do so at this
particular High Court, as the commendable court infrastructure and peaceful court
environment allowed for a clear and uninterrupted hearing of both the Judges and the
advocates statements.
The following three Judgements were delivered on the 4
th
of September, 2014. I have made
an effort to clearly state the facts and circumstances of each case, as I understood them by
witnessing the proceedings. All the Judgements were orally delivered, which enabled me to
grasp interesting facts and points of law.

Prakashsinh J agatsinh Rathod v. Prabhatsinh Alias J agatsinh Udesinh Rathod
(Honble The Chief Justice Mr. Bhaskar Bhattacharya)

This appeal under section 173 of the Motor Vehicles Act is at the instance of the claimants in
a proceeding under section 163A of the Motor Vehicles Act and is directed against an award
dated 5th June 2009 passed by the Motor Accident Claims Tribunal and Fast Track Court
No.2, Himmatnagar in MAC Petition No.602 of 2008 thereby partly allowing the said
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application and awarding a sum of Rs.2,02,200/- with interest at the rate of 7.5% per annum
from the date of filing of the application till realisation. Being dissatisfied, the claimants have
come up with the present appeal for enhancement. On 12
th
May 2008 while the victim, who
happened to be the mother of the two claimants, was travelling in a auto-rickshaw owned and
driven by opponent No.1 who happens to be the husband of the victim and the father of the
claimants, due to the negligent driving on the part of the opponent No.1 the auto-rickshaw
overturned and the victim was seriously injured and thereafter succumbed to the injuries. On
the death of the victim, her two sons, the claimants, lodged claim under section 163A by
making their father, the owner of the vehicle as opponent No.1 and the Insurance Company
which insured the auto-rickshaw as opponent No.2. According to the claimants, the victim
was aged 45 years at the time of death and she used to earn Rs.40,000/- from maintaining
cattle and also doing agricultural work. In spite of service of notice, the father of the
claimants, the owner of the vehicle did not appear or contest the proceeding but the Insurance
Company, the opponent No.2 entered appearance and filed written statement denying the
allegations made in the claim application. The learned Tribunal below, on consideration of
the materials on record, accepted the case that the victim died in the accident alleged and that
she was aged 45 years, as would appear from the report of the post mortem. The Tribunal
below, however, did not accept the case of the claimants that the victim had yearly income of
Rs.4000/- but accepted the income of the victim to be Rs.1800/- a month. The Tribunal below
deducted one-third for her personal expenses and thereafter, applied multiplier of 13 to arrive
at a figure of Rs.1,87,200/- and in addition to that Rs.5000/- was awarded for loss of love and
affection, a further sum of Rs.5000/- for loss of the estate and a further sum of Rs.5000/- for
funeral expenses. Thus, the Tribunal awarded a total sum of Rs.2,02,200/-. The Tribunal,
however, held that the victim was a gratuitous passenger and as such, the Insurance Company
was not liable for making the payment of amount of compensation. The Tribunal further held
that a person cannot be both a claimant as also recipient simply because, according to the
Tribunal below, the driver-cum-owner of the rickshaw is the husband of the deceased.
Therefore, the opponent No.2 is not liable for payment of the amount of compensation. Being
dissatisfied, the claimants have come up with this appeal, first for enhancement of the amount
to the extent of Rs.1 lakh and secondly, for direction upon the Insurance Company to pay the
amount. The Chief Justice allowed the appeal and set a sum of a Rs. 3,02,200/- with interest
at the rate of 7.5% p.a. from the date of filing of the claim, till realisation, to be deposited to
the concerned Tribunal within a two week period. The Tribunal was directed to make the
payment between the two claimants and to exclude the father as it was due to his negligent
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act that the accident occurred. The decision of the Tribunal with regard to gratuitous
passenger was set aside as the cover letter of the insurance policy did not specifically exclude
it.

Pooja Ashok Gupta v. Abhishek Ashwini Goyal
(Honble Mr. Justice V.M. Sahai & Honble Mr. Justice R.P. Dholaria)

(Per Honble Mr. Justice V.M Sahai)
By way of the Letters Patent Appeal before this court, the appellant original petitioner
challenged the order dated 28th April 2014 passed by the learned Single Judge in Special
Civil Application No. 5545 of 2011, whereby the learned Single Judge was pleased to dispose
of the writ petition. This case rested on the technicalities of admissibility of a Letters Patent
Appeal and the principal question of law to be decided was whether a LPA can be admitted
when the original writ petition is filed under Article 227 and not Article 226 of the Indian
Constitution.
The Court relied on the Full Bench decision of the Gujarat High Court in the case of Gujarat
State Road Transport Corporation v. Firoze M. Mogal wherein it was held that:
If the Special Civil Application is described as one not only under Article 226 of the
Constitution, but also under Article 227 of the Constitution of India and the Court or the
Tribunal whose order is sought to be quashed, is not made a party, the application is not
maintainable as one for the relief of certiorari in the absence of the concerned Tribunal or
Court as party, but the same may be treated as one under Article 227 of the Constitution of
India. If the Court or Tribunal is not impleaded as a party respondent in the main petition,
then by merely impleading such court or tribunal for the first time in the Letters Patent
Appeal will not change the nature and character of the proceedings before the learned Single
Judge. By merely impleading such a Court or Tribunal for the first time in the LPA, the
appeal could not be said to be maintainable, if the proceedings before the learned Single
Judge remained in the nature of supervisory proceedings under Article 227 of the
Constitution.
If the learned Single Judge, in exercise of a purported power under Article 227 of the
Constitution sets aside the order of Tribunal or Court below and at the same time, the
essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable
against such order in view of the specific bar created under Clause 15 of the Letters Patent
itself and such an order can be challenged only by way of a Special Leave Petition before the
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Supreme Court. To put it very explicitly, take a case where a petition is only under Article
227 of the Constitution of India, invoking superintending powers of the High Court and not
under Article 226 of the Constitution of India. After examining the matter, if the court finds
substance in the petition and sets aside the order of an authority, court or a tribunal, then
against such an order, an LPA would not lie on the argument that since the court has set aside
the order it has decided the matter on merits having found substance in the same. To put it in
other words, once a petition is under Article 227 of the Constitution of India, and while
entertaining such a petition under Article 227 of the Constitution of India, if the court allows
a petition by setting aside the order impugned, then against such an order no LPA would lie.

The appeal was therefore dismissed, though the Bench made it clear that the parties wouldnt
be barred from approaching any other appropriate forum in accordance with law as, in the
present case, the merits of the case have not been dealt with and the appeal was dismissed
simply on the basis of inadmissibility of an LPA brought under Article 227 of the Indian
Constitution.

Devid Raja J oyel a.k.a Chidambaramv. State of Gujarat
(Honble Mr. Justice K.S. Jhaveri & Honble Mr. Justice A.G. Uraizee)

(Per - Honble Mr. Justice K.S. Jhaveri)
These appeals are directed against the judgment and order dated 19.01.2002, passed by the
Additional Sessions Judge, Bharuch, in Sessions Case No.18 of 2000, whereby they were
convicted for the offences punishable under Section 302 read with Section 34 of the Indian
Penal Code and were directed to suffer imprisonment for life and fine of Rs.200/, in default
of payment of fine, they shall undergo simple imprisonment for fifteen days.
The appellants in the present case are absconding, but as per the decision of the Division
Bench, as per Letters Patent Appeal No. 918 of 2001, the case was taken up for final hearing
and decided on merits.
The brief facts of the prosecution, as it emerged from the charge, are that on 22nd September,
1999 between 12:15 am and 7:00 am the deceased Mohanbhai and appellants after unloading
the coconuts from the truck went to Raja Transport for collecting transport charges. During
that period due to unknown reason, the appellants killed the deceased by inflicting knife
blows. A complaint in respect of this incident was lodged by the complainant Silvam
Ramswami. In pursuance of this complaint, FIR vide D.I.G.C. Ankleshwar Police Station
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ICR No.170 of 1999 came to be registered. The investigation was taken up and after usual
investigation; chargesheet was filed against the appellants. The offence committed by the
appellants was exclusively triable by the Court of Sessions. Therefore, the learned Magistrate
committed the case to the Sessions Court at Bharuch under Section 209 of the Code of
Criminal Procedure, where it was registered as Sessions case No.18 of 2000. Charge came to
be framed against the appellant. He pleaded not guilty and claimed to be tried.
The Court of Sessions examined the witnesses and other relevant evidence that was placed
before them and came out with the verdict that the present appellant(s) were guilty. The
learned advocate for the appellants pleaded before this Court that the Learned Sessions Judge
had delivered his judgment without proper appreciation of the facts and the evidence on
record. He further stated that there were no witnesses to the crime and there was absolutely
no evidence on record that supported the appellants guilt.
The Court, after going through all the witness statements and the evidence on record, came to
the decision that a concrete and undeniable chain of circumstances could not be established
by the prosecution, which could prove that the appellants were guilty without doubt. The
Court also took into consideration the fact that no discovery of weapons or any other
evidence that would link the appellants to the crime was made.
Thus, the present appeal was allowed and the judgment and order of the Sessions Judge in
Sessions Case No. 18 of 2000 was quashed and set aside. The appellants were acquitted.