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FA/3296/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3296 of 2008
=========================================================
GUGABHAI
RANCHHODBHAI BHARWAD - Appellant(s)
Versus
KANTILAL
ISHWARLAL DALWADI & 2 - Defendant(s)
=========================================================
Appearance
:
MR.HIREN
M MODI for
Appellant(s) : 1,
MR HARMISH K SHAH for Defendant(s) : 1 - 2.
MR
SHALIN N MEHTA for Defendant(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 30/09/2008
ORAL
ORDER
1. Heard
learned advocate Mr.Hiren M. Modi for the appellant, learned advocate
Mr.H.K.Shah for respondent Nos.1 and 2 and learned advocate Mr.Shalin
Mehta for respondent No.3 ? Insurance Co.
2. The
appellant ? claimant has challenged award passed by claims
Tribunal, Viramgam in MACP No.19 of 2006 dated 16.10.2007 whereby
claims Tribunal has rejected claim petition.
3. Learned
advocate Mr.Modi submitted that in affidavit filed by claimant, the
case was put up by claimant that driver of tractor and trolley has
all of sudden stopped tractor and that is how the Eicher truck dashed
with tractor and accident occurred. So it was a negligence on the
part of driver of tractor and not driver of Eicher truck.
Therefore, claims Tribunal has committed gross error in rejecting
claim petition filed by the claimant. He read over Para.5 of award
before this Hon’ble Court.
4. Learned
advocate Mr.Shalin Mehta for respondent No.3 ? Insurance Co.
submitted that claims Tribunal has rightly examined matter and on
the basis of oral evidence and cross-examination, there appears no
negligence of driver of tractor and charge sheet is also filed
against driver of Eicher Truck. Therefore, no error is committed by
claims Tribunal which requires interference by this Court.
5. I
have considered submissions made by learned advocates appearing for
respective parties and also perused award passed by claims Tribunal.
Considering evidence Exh.22 of claimant where he has admitted that
accident occurred at night where one tractor with trolley was going
ahead to Eicher Truck and it was going with normal speed. However,
all of a sudden, from opposite side, one jeep came, having head light
and therefore, driver Kanjibhai of Eicher Truck was not able to got
control over Eicher truck and dashed with tractor and trolley from
back side and that is how accident occurred. The charge sheet is also
filed against said Kanjibhai and accordingly, complaint was filed and
then, statement of claimant was obtained by police. Same facts were
narrated by claimant that accident is occurred because driver of
Eicher Truck ? Kanjibhai want to over take tractor and at that
occasion, from opposite side, one jeep came with full light and due
to that, he was not able to see the tractor and while taking Eicher
Truck on left side from middle portion of road, at that occasion
Eicher Truck dashed with tractor and that is how accident occurred.
On that basis, claims Tribunal has examined the matter and analyzed
evidence on record. Normally, there cannot be any high or excessive
speed of tractor with trolley which was going ahead to Eicher truck.
6. Therefore,
according to my opinion, claims Tribunal has not committed any error
in coming to such conclusion that there was a negligence on the part
of driver Kanjibhai of Eicher Truck and there was no negligence of
driver of tractor which was going head to Eicher truck. Therefore,
such finding of fact cannot be disturbed by this Court which has been
proved on the basis of evidence of claimant Exh.22. Therefore,
claims Tribunal has not committed any error which requires
interference by this Court. Accordingly, there is no substance in
present appeal. Accordingly, present appeal is dismissed.
(H.K.RATHOD,J.)
(vipul)
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