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FA/2533/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2533 of 2010
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PRAVINBHAI
PARSHOTTAMBHAI PATEL - Appellant
Versus
ASHWINBHAI
MAGANBHAI PATEL & 2 - Defendants
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Appearance :
MR.HIREN
M MODI for Appellant:
None for Defendants : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 20/10/2010
ORAL
ORDER
The
appellant / original claimant in M.A.C. Petition No. 1246 of 1992,
has approached this Court for challenging the judgment & order
dated 6/10/2009 passed by M.A.C. Tribunal (Aux) Vadodara, dismissing
the claim petition preferred by the appellant/claimant against the
scooterist, his employer and its insurer, as he suffered injury on
account of accident occurred on 14/3/1992 at about 4.00 p.m., and on
account of said accident he had to undergo medical treatment as an
indoor patient.
Facts
in brief leading to of filing this appeal deserve to be set out as
under.
The
appellant, while on his way to his home on 14/3/1992 at 4.00 p.m.,
was hit by a scooterist riding scooter no. GRV-6675, and on account
of this accident claimant sustained injuries. The scooterist was not
riding with due care and caution and accident occurred on account of
negligent driving of the scooterist. The appellant was required to be
admitted in hospital of Dr. K.C. Patel, and was required to be
operated upon and plating & fixing was made. Appellant was
required to be kept in hospital for 5 days and after his discharge as
indoor patient, once again he was required to be admitted to hospital
on 24/3/1992 to 7/4/1992. Claims Tribunal came to the conclusion that
the claimant did not prove involvement of the vehicle in question in
the accident and rejected the petition vide order in judgment dated
6/10/2009 passed in M.A.C. Petition No. 1246 of 1992, as stated
herein above. Being aggrieved and dissatisfied with the same, this
appeal is preferred on the grounds mentioned in the memo of the
appeal.
Learned
advocate Shri Modi relying upon the testimony of the eye witness
Vinodbhai Hiralal Thakkar at exhibit-25 contended that the eye
witness has supported the case of the appellant/claimant before the
Tribunal and therefore, when insurance company chose not to examine
the scooterist as well as owner of the scooter, the eye witness’s
version ought to have been acceptd and the claim petition therefore
could not have been rejected. Shri Modi, learned advocate appearing
for the appellant attempted to explain non lodging of the complaint
right within the vicinity of the happening of the accident. Relying
upon the decision of M.P. High Court in case of Yashwant Singh
Baghel & Anr Vs. Shiv Prasad Vishwakarma & Ors, reported in
III (2007) ACC 442, submitted that non-lodging of complaint
immediately would not be considered as so vital as to warrant
rejection of claim petition itself. The injured is also a witness
and his testimony could not have been discarded, the order of
rejection is therefore required to be quashed and set aside.
This
Court heard Shri Modi, learned advocate for the appellant/claimant,
perused copy of the complaint as well as copy of the testimony of
the eye witness at exhibit-25 supplied by learned advocate and the
order impugned in this appeal. Few indisputed facts emerging from
the aforesaid documents need to be enlisted hereunder, namely;
i)
The claimant has filed claim petition, but on the date of the
accident i.e. 14/3/1992 no one had reported the accident to any
authorities.
Police
complaint is said to have been filed by post informing the concerned
Police Inspector about the incident and the said complaint is said
to have been filed by letter dated 5/8/1992, which was sent by post
to the concerned Police Inspector.
Date
of accident happened to be 14/3/1992 and sending of the written
complaint happened to be on 5/8/1992. The time lag is sought to be
explained that initially there was an assurance by the scooterist
to indemnify the insured and on scooterist going back on his words,
the insured was constrained to file complaint.
The
complaint does not disclose name of the eye witness, who has been
examined by the injured nor did eye witness name figures in the memo
of the petition. In short as it is mentioned by the Tribunal, eye
witness’s name cropped up for the first time after a period of 17
years as eye witness in the purshish filed by the appellant for
examining said gentleman Vinodbhai Hiralal Thakkar.
Eye
witness Vinodbhai Hiralal Thakkar also did not depose anywhere
indicating involvement of the scooter bearing Regs. No. GBV-6675. In
entire testimony of Vinodbhai Hiralal Thakkar no where mentions
registration number of the scooter nor did it reflect the version of
the complainant or claimant which he has stated in the memo of the
complaint.
Eye
witness is called upon to explain certain situation during course
examination to suggest that the eye witness was merely a got up
witness.
Tribunal
has in terms recorded its serious lacuna on the part of the claimant
with regard to establishing identify of the vehicle involved in the
accident.
In
view of the aforesaid facts and indisputable aspects of the matter,
I am of the view that the appeal does not deserve to be entertained.
The reliance placed upon the decision of M.P. High Court in case of
Yashwant Singh Baghel & Anr (supra) would be of no avail to the
appellant, as the facts of the present case are glaringly different
than in the case cited. Moreover there cannot be any dispute to the
proposition of law laid down. The Tribunal in the instant case has
not rejected the application merely on the ground of failure in
lodging complaint on the date of accident. The totality of the facts
& circumstances have gone persuading the Tribunal in rejecting
the petition. In my view, Tribunal having committed no error, the
order of the Tribunal needs no interference. The First Appeal,
therefore is required to be dismissed and is accordingly dismissed.
It is recorded at this stage that learned advocate has produced
testimony which he relied upon in support of his submission as well
as the complaint. This decision is based upon reading of those
documents. When no case is made out for entertaining the appeal,
this Court was inclined to dismiss the appeal and accordingly it is
dismissed.
[
S.R. BRAHMBHATT, J ]
/vgn
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