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FA/2893/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2893 of 2008
=========================================================
RUKHSANABIBI
RASHIDBHAI MALEK & 5 - Appellant(s)
Versus
JAFARKHAN
BANEKHAN PATHAN & 3 - Defendant(s)
=========================================================
Appearance
:
MR.HIREN
M MODI for
Appellant(s) : 1
- 5.
None
for Defendant(s) : 1 - 2.
MR
GC MAZMUDAR for
Defendant(s) : 3,
MR
HG MAZMUDAR for
Defendant(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 08/07/2008
ORAL
ORDER
1. Heard
learned advocate Mr. Hiran M. Modi is appearing on behalf of
appellants ? claimants. Learned advocate Mr. H.G. Majmudar is
appearing on behalf of opponent No.4.
2. Learned
advocate Mr. Modi appearing on behalf of appellant submitted that
Tribunal has committed apparently error relate to factual aspect that
respondent ? driver was deleted but owner was not deleted. But,
Tribunal has mentioned in the award that appellant has also deleted
the owner of the vehicle. He also submitted that application, to join
Insurance Company as a party, has been misplaced before the Tribunal
and therefore, only on that ground, Tribunal has dismissed the
application as observed in Para 8 which is quoted as under :
?S8. It
is to be noted that, to arrive at the decision in the petition filed
under Section 163A no negligence is required to be proved, but, as
discussed herein above, driver of the another vehicle i.e. truck was
deleted vide application Exh.No.28 on 29.6.2007 and owner of the said
truck was also deleted vide application at Exh.29 on 29.6.2007 and
the insurance company of the said truck is not joined as party, if we
think further, admittedly the deceased was driving the said matador
at the time of incident, therefore, insurance company of the said
matador can not be held liable and as discussed herein above the
driver and owner of other vehicle truck are deleted, therefore, no
any liability would be fastened on the other vehicle truck,
therefore, under the said circumstances, no liability can be fastened
either upon the owner or upon the insurance company of the said
matador as its driver succumbed to injury in the present incident.
Thus, under the said circumstances and as discussed herein above, no
liability can be fastened on any of the opponents. Therefore, under
the said circumstances and evidence on record, as per my view, this
claim petition is deserves to be dismissed and therefore, I answer
Issue Nos.1, 2 and 3 accordingly, and pass following final order…??
3. In
view of aforesaid observations made by Tribunal, learned advocate Mr.
Modi submitted that it is based on having error on factual aspect if
it is to be corrected, the result would be different. Therefore, when
Tribunal has committed factual error while passing the award, the
application for review is maintainable before the Tribunal as per
decision reported in Manu/GJ/1713/06.
4. Learned
advocate Mr. Majmudar has no objection if appellant will file review
application before the Tribunal only for correcting the factual error
as mentioned in appeal memo.
5. Therefore,
it is open for the appellant to file review application for
correcting the factual error committed by Tribunal. As and when, such
application will be received by Tribunal, it is directed to Tribunal
to consider it and find out that if any factual error is committed by
Tribunal or not as suggested by appellant and then to pass
appropriate order after giving reasonable opportunity of hearing to
all the concerned parties.
6. In
view of above observations and directions, present First Appeal is
disposed of.
[H.K.
RATHOD, J.]
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