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FA/539/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 539 of 2011
WITH
FIRST
APPEAL No. 540 of 2011
With
CIVIL
APPLICATION No. 2211 of 2011
In
FIRST APPEAL No. 539 of 2011
WITH
CIVIL
APPLICATION No. 2212 of 2011
IN
FIRST
APPEAL No. 540 of 2011
=========================================================
JAGDISHBHAI
DALPATRAI BHATT - Appellant(s)
Versus
DINESHBHAI
VALJIBHAI SINGAL & 2 - Defendant(s)
=========================================================
Appearance
:
MR.HIREN
M MODI for
Appellant(s) : 1,
None for Defendant(s) : 1,
MR SUNIL B PARIKH
for Defendant(s) : 2,
MR GC MAZMUDAR for Defendant(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 24/02/2011
COMMON
ORAL ORDER
Since
both these appeals arise out of the common judgment and award and
the facts and the issues involved in appeals are identical in
nature, the same being decided by this common order.
By
way of present appeals, the appellant has inter alia prayed for
quashing and setting aside the impugned judgment and award dated
05th February 2010 passed by the Motor Accident Claim
Tribunal (Main), Amreli (hereinafter referred to as ‘the Tribunal’),
in Motor Accident Claim Petition Nos.377 and 376 of 2004, whereby
the Tribunal has directed the appellant herein to pay compensation
to the original claimants. The appellant has also prayed for
quashing and setting aside the order dated 03rd August
2010 rendered in Miscellaneous Application No.68 of 2010 and 69 of
2010, whereby the Tribunal has rejected the review application.
It
is the case of the appellant that on 16th February 2004
when the respondent No.1 herein was going to Kodinar on his
motorcycle along with his wife, who was a pillion rider, they met
with an accident and sustained injuries. Therefore, they preferred
Motor Accident Claim Petition Nos.377 and 376 of 2004, which
ultimately came to be partly allowed. However, during the pendency
of the said proceedings the respondent No.2 herein preferred an
application Exhibit 18 for deleting it as a party opponent from the
said claim petition, which was allowed on 11th September
2007. Thereafter, the evidence was led and the claim petitions were
party allowed. Hence, present appeals.
Mr.Hiren
Modi, learned advocate for the appellant, has submitted that the
respondent No.2 was very well aware about the insurance policy and
the very insurance company had paid the insurance of own damage
arising out of the same accident; that the respondent No.2 kept the
appellant in dark about the said order of deletion of Insurance
Company from the claim petition; that the appellant had even
submitted the relevant documents to the Insurance Company and that
the restoration application ought not to have been rejected on the
ground that the appellant had not appeared in the main proceedings.
In view of aforesaid, it is prayed that present appeals may be
allowed.
Mr.Sunil
Parikh, learned advocate for the respondent No.2 and Mr.G.C.
Majmudar, learned advocate for the respondent No.3, have jointly
submitted that the Tribunal has after taking into consideration the
relevant aspects of the matter come to the impugned conclusion,
which is just and proper. Hence, it is prayed that present appeals
as well as Civil Applications may be dismissed.
Having
considered the rival contentions raised by the learned advocates for
the respective parties, averments made in the appeals and the
documentary evidence produced on record, it transpires that when the
Insurance Company submitted the application Exhibit 18, on 11th
September 2007 the learned advocate for the appellant herein has
made an endorsement (page 27) that looking to the period of policy,
it transpired that there was no insurance at the time of incident
and thereby, he has given no objection in deleting the Insurance
Company. In pursuance of the said ‘No Objection’ given by the
learned advocate for the appellant, the Tribunal on 11th
September 2007 passed an order allowing the said application Exhibit
18 and deleted the Insurance Company. It is pertinent to note that
though the appellant herein was served with a notice in respect of
the said application, the appellant had chosen not to appear.
6.1
It is required to be noted that the said order was not challenged
by the appellant till the year 2010 and thereafter, as if woke up
from a slumber, the appellant after disposal of the Motor
Accident Claim Petitions filed Miscellaneous Application
Nos.68 and 69 of 2010 for restoration/review, which ultimately came
to be rejected by the Tribunal vide impugned order dated 03rd
August 2010. The Tribunal while rejecting the said applications has
assigned just and proper reasons.
6.2 It
is pertinent to note that the Insurance Company was deleted way back
in the year 2007 and the evidence in the matter was recorded after
deletion of the Insurance Company. Thus, the Insurance Company also
would lose its valuable right to cross-examine the witnesses in the
matter. In that view of the matter, the view taken by the Tribunal is
absolutely just and proper.
6.3 So
far as the impugned order 11th August 2010 is concerned, I
am of the opinion that the trial Court has assigned just and proper
reasons while arriving at the conclusion.
In
view of aforesaid, I am of the opinion that the view taken by the
Tribunal is just and proper. The Tribunal has assigned cogent and
convincing reasons for arriving at the impugned conclusions. Over
and above aforesaid reasons, I adopt the reasons assigned by the
Tribunal and do not find any illegality much less any perversity in
the findings recorded. I am in complete agreement with the findings
recorded by the Tribunal. No case is made out to interfere with the
findings recorded by the Tribunal. Hence, present appeals deserve to
be dismissed.
For
the foregoing reasons, present appeals fail and are, accordingly,
dismissed. Consequently, the Civil Applications also stand disposed
of.
(K.S.
Jhaveri, J)
Aakar
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