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FA/4971/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4971 of 2008
=========================================================
ANAWARBHAI
SHOBDARKHAN JALWANI - Appellant(s)
Versus
DILIPKUMAR
AMARSHIBHAI PADIA & 1 - Defendant(s)
=========================================================
Appearance
:
MR
RR TRIVEDI for
Appellant(s) : 1,MR BHAVESH P TRIVEDI for Appellant(s) : 1,
None
for Defendant(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 17/10/2008
ORAL
ORDER
Heard
learned advocate Mr. RR Trivedi on behalf of appellant.
The
appellant has challenged award passed by Motor Accident claims
Tribunal, Gondal, Camp at Jetpur in Claim case no. 210/1996 vide exh
43 dated 16/7/2008. The claims Tribunal has dismissed claim
petition filed by appellant.
Learned
advocate Mr. Trivedi submitted that claims Tribunal has committed
gross error in rejecting claim petition on the ground of late FIR,
papers of charge sheet not produced and no relevant documents
produced from Dr. Padhaya.
He
submitted that papers of charge sheet were lying with Magistrate
Court at Jetpur in Cri. Case no. 1619/1996, wherein accused has
declared acquittal by order dated 7/8/2000.
He
submitted that papers of charge sheet may not be with appellant
because charge sheet was served to accused. Therefore, he was not
able to produce on record and after judgement delivered by Criminal
Court, papers were sent to District Court, Rajkot.
He
submitted that detailed evidence given by appellant, documents were
produced, medical certificate of disability also produced, which was
admitted by other side, even though, claims Tribunal has rejected
application filed by claimant. Therefore, present application is
filed.
He
submitted that claims Tribunal has not given proper opportunity to
appellant. Therefore, claims Tribunal has committed gross error in
deciding application. Except that no other submission is made by
learned advocate Mr. Trivedi before this Court.
I
have considered submissions made by learned advocate Mr. Trivedi and
I have perused award passed by claims Tribunal.
Looking
to facts, appellant is original claimant and opponent no. 1 is
driver and Owner of Hero Honda Motor cycle being No. GJ-3-F-6404.
On 26/11/1995 at about 20.30 P.M. night applicant was walking on old
Rajkot Jetpur High Way. He was coming to Jetpur on his feet. At
that time when he reached near Bhadar River Bridge the opponent came
on the Hero Honda Motorcycle No. GJ-3-F-6404 and hit the appellant
from behind and caused the accident. Due to this accident appellant
received serious injuries on left leg and fracture on waist. He
also got injured on various parts of body. Appellant further
submits that, he lodged an FIR being C. R. No. 369/1995 before the
Jetpur Taluka Police Station and panchnama of place of incident was
also prepared.
Before
claims Tribunal notice was issued to respondents. The respondent no.
1 was not remained present. Therefore, ex parte award passed by
claims Tribunal. The insurance company has filed detailed reply
vide exh 12 and raising contention that such accident was not
occurred due to negligence of opponent driver, certain documents
were produced on record as referred in para 3 as well as insurance
policy was also produced on record vide exh 35.
In
support of claim, appellant was also examined vide exh 38, which was
cross examined by respondent no. 2, no evidence was led by insurance
company, but written arguments were produced by both parties vide
exh 41 and 42. The issues were framed by claims Tribunal vide exh
16 and considered the facts stated by claimant.
The
claims Tribunal has come to conclusion that date of filing of
complaint not properly mentioned by claimant in his claim petition
and no reason is given that why delay has been occurred in filing
complaint. According to complaint vide exh 36, claimant has
mentioned that after accident he was taken treatment from Dr. Padaya
at Jetpur. Thereafter, he was informed to take medical treatment in
clinic of Dr. KV Jivrajani.
He
also made it clear that he has not informed Rajkot Police Station
because Dr. Padaya has communicated about said accident to Jetpur
Police Station. Therefore, he has not made any complaint before
Rajkot Police Station. Ultimately, it was found by him that no
complaint was lodged in Jetpur Police Station. Therefore, he has
filed complaint that is how delay occurred. The medical treatment
taken from Dr. Padaya, for that, no medical certificate has been
produced by claimant. Vide exh 36 ? complaint, where after
investigation of Police whether charge sheet was served to accused
or not, no detail has been produced by claimant before claims
Tribunal. None was examined in support of that. Dr. Padaya has
also not examined before claims Tribunal.
Therefore,
claims Tribunal on the basis of facts given by claimant have
reasonable doubt about accident, which has been alleged to be
occurred with appellant. The claims Tribunal has given detailed
reason that vide exh 21 medical certificate issued by Dr.
Jivarajani, it is not clear that this injury received in vehicular
accident. Therefore, another doubt has been created against
appellant by Tribunal as well as same contention also raised by
insurance company in written arguments.
Therefore,
claims Tribunal has come to conclusion that looking to inconsistency
in respect to averment made by claimant, which has not been
satisfied logical reason of claims Tribunal that such accident must
have to be occurred and claims Tribunal has not satisfied as looking
to evidence on record, claims Tribunal have doubt about injury,
which has been received by claimant. Therefore, claims Tribunal has
come to conclusion that claimant has failed to prove his case before
claims Tribunal.
According
to my opinion, claims Tribunal being Trial Court after appreciating
evidence in respect to fact, observation, which has been made and
have reasonable doubt, this Court can not interfere in such finding
of fact recorded by claims Tribunal on the basis of evidence. The
reasoning given by claims Tribunal can not consider to be baseless
and perverse or erroneous.
The
contention raised by learned advocate Mr. Trivedi before this Court
was not pressed before claims Tribunal at relevant time when matter
was proceeded before claims Tribunal. Therefore, such subsequent
submission can not be accepted by this Court and award passed by
claims Tribunal can not be dealt with on the basis of subsequent
detail as pointed out to this Court. Therefore, contention raised
by learned advocate Mr. Trivedi is rejected.
Hence
there is no substance in the present appeal. Accordingly, present
appeal is dismissed.
(H.K.RATHOD,
J)
asma
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