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FA/2176/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2176 of 2008
=========================================================
KISHORBHAI
PURSHOTTAMBHAI JOSHI - Appellant(s)
Versus
ODEDARA
RANJITBHAI MERAMAN & 2 - Defendant(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/09/2008
ORAL
ORDER
Heard
learned advocate Mr. Balvantsinh Solanki for learned advocate Mr. AM
Dagli on behalf of appellant.
The
appellant has challenged award passed by Motor Accident Claims
Tribunal, Porbandar in MACP no. 134/1999 dated 27/8/2007. The
claims Tribunal has rejected claim petition filed by claimant for
the claim of Rs. 7,70,000/- with costs and interest against
appellant.
The
accident occurred on 17/2/1997. According to claimant vehicle of
opponent no. 2 is having insurance from opponent no. 3 traveling in
Motor No. GJ-11-T-2042 with family members at Jogwad Village for
Darshan of Kuldevi. At about 3.30 while going to Jamkhambhalia to
Dwarka, at that occasion, driver of Motor Car No. GJ-11-T-2042 was
driving this vehicle in rash and negligent manner and dashed with
tree, which resulted into serious injuries to occupants of Car those
who are claimants.
The
claims Tribunal has considered claim of claimants. The driver and
owner has filed reply vide exh 9 and insurance company has also
filed reply vide exh 17. Thereafter, issues were framed vide exh
23. Before claims Tribunal, relevant record was produced vide exh
41 to 45, 47 and 48. Vide exh 41 FIR, Vide exh 42 Panchnama and
complaint was filed by complainant Kishorchandra Joshi before
Jamkhambhalia Police station on 19/2/1997.
The
Tribunal has come to conclusion after appreciating evidence on
record that FIR vide exh 41 and Panchnama vide exh 42 are doubtful
because for some bad intention after having advice from experts
person, this episode has been prepared by claimants.
The
claims tribunal has come to conclusion that if certified copy of
charge sheet vide exh 43 is to be considered then FIR vide exh 41
and Panchnama vide exh 42 is clearly made doubt to the extent that
both are wrong and fabricated documents. In fact, claim petition was
filed on the basis of wrong case or after thought by claimants. The
claims Tribunal has examined reply vide exh 9 given by owner and
driver, those who remained silent just to fulfill bad intention of
Kishorchandra Purshottam Joshi and merely just show has been created
by owner and driver that apparently some objection has been raised
but no evidence was led by opponent no. 1 and 2 not only that
documents, which has been produced by claimants FIR vide exh 41,
Panchnama vide exh 42 and charge sheet vide exh 43 has been accepted
by opponent no. 1 and 2.
Therefore,
claims Tribunal was having clear doubt against proceeding initiated
by claimants. The story, which has been developed by claimants to
the extent that accident occurred by vehicle, in place of another
vehicle has been mentioned, which covered risk of third party. That
has been done with help of other surrounding person because an
educated person, who has taken benefit of technicality can not
committed this kind of mischief and other vehicle was mentioned in
place of original vehicle. In original vehicle risk of 3rd
party was not available, but in other vehicle risk of 3rd
party was available. Therefore, this vehicle was changed, in
panchnama, FIR and charge sheet, mischief has been committed by
claimants to have compensation.
Therefore,
according to my opinion, claims Tribunal has rightly considered
claim petition and also appreciated documents, which were on record
and find out real truth behind curtain after examining documentary
evidence and find out bad intention of claimants to have
compensation as 3rd party by changing of vehicle.
Therefore,
view taken by claims tribunal is correct and rightly examined the
issue. For that, claims tribunal has not committed any error which
would require any interference by this Court.
Hence
there is no substance in the present appeal. Accordingly, present
appeal is dismissed. Today, first appeal is dismissed by this
Court. Therefore, no order is required to be passed in civil
application. Therefore, civil application is disposed of.
After
the judgment and order was dictated by this court and before it
could be signed by this court, learned advocate Mr. Dagli requests
to give him audience as he wants to argue some point, therefore,
this court has given audience to learned advocate Mr. Dagli in
consonance with the principles of natural justice.
It
was submitted by the learned advocate Mr. Dagli that accident
occurred in motor car no. 2042 and not by vehicle no. 2402 because
according to him, vehicle NO. 2402 was manufactured in year 2000,
therefore, it was not possible to have accident in year 1997. Such
contention was not raised before claims tribunal by claimants and
findings have been given by claims tribunal after considering
original record. Claims tribunal has in terms come to conclusion
that accident occurred in vehicle bearing No.GJ-11-T-2402 and not in
vehicle bearing No. GJ-11-T-2042 because there is no reason to
utilise wrong number by Shri JD Chavda, Head Police Constable.
Therefore, claims tribunal has rightly appreciated evidence on
record and claims tribunal has not committed any error while
dismissing claim petition and question which was not raised relating
to facts now that question cannot be raised for first time before
this court.
Therefore,
that contention raised by learned Advocate Mr. Dagli is rejected. In
claim petition, claimants shall have to prove accident, vehicle
involved in accident and injury/death. In continue chain, one doubt
is enough for rejecting claim case of claimants, therefore, claims
tribunal has sufficiently, properly and thoroughly examined entire
matter and has decided it that accident had occurred by vehicle
No.GJ-11-T-2402 and not by vehicle No. GJ-11-T-2042, therefore,
there is no substance in submissions now made by learned advocate
Mr. Dagli before this Court and order passed by this Court stands.
(H.K.RATHOD,
J)
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