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FA/2714/2008 7/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2714 of 2008
With
CIVIL
APPLICATION No. 7050 of 2008
In
FIRST APPEAL No. 2714 of 2008
=========================================================
UNITED
INDIA INSURANCE CO. - Appellant(s)
Versus
DAXABEN
JASHWANTBHAI KHRISTI & 2 - Defendant(s)
=========================================================
Appearance
:
MR
GC MAZMUDAR for
Appellant(s):1,MR HG MAZMUDAR for Appellant(s): 1,
None for
Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 13/08/2008
ORAL
ORDER
1. Heard
learned advocate Mr. H.G. Mazmudar appearing on behalf of appellant ?
United India Insurance Company.
2. The
appellant has challenged the award passed by Motor Accident Claims
Tribunal, Nadiad in Motor Accident Claim Petition No.2546 of 2000
dated 12th July 2007. The Claims Tribunal has awarded
Rs.75,560/- with 9% interest in favour of respondent claimant.
3. Learned
advocate Mr. Mazmudar raised contention before this Court that
respondent claimants were travelling in tempo rickshaw which was
goods vehicle and these claimants gratuitous passengers and received
the injury, therefore, the appellants are not entitled any amount of
compensation from the Insurance Company. Learned advocate Mr.
Mazmudar submitted that Insurance Company is not liable to make the
payment as risk of gratuitous passengers are not covered under the
policy. No additional premium was paid by insured to the insurance
company, therefore, risk of these gratuitous passengers is not
covered, therefore, Tribunal has committed gross error in awarding
compensation holding liable the insurance company. He relied upon the
decision of Asharani reported in 2003(2) SCC 223.
Therefore, he submitted that Tribunal has committed gross error.
4. I
have considered the submissions made by learned advocate Mr. Mazmudar
appearing on behalf of appellant. I have perused the award passed by
Claims Tribunal, Nadiad. The written statement filed by the Insurance
Company vide Exh.22, where, insurance company ? appellant has not
raised such contention before the Claims Tribunal, but, only
contention is raised that if ultimately, insurance company is held
liable, then, it was a limited liability. The Tribunal has examined
the matter on the basis of the records and awarded compensation of
Rs.75,560/- with 9% interest. The insurance company has not raised
this contention that tempo rickshaw is a goods vehicle and
respondents claimants are a gratuitous passengers travelling in tempo
rickshaw and risk of this claimants are not covered under the
insurance policy and additional premium was not paid by the insured.
In absence of such contentions, naturally, Tribunal has not examined
such contentions which were not raised before the Claims Tribunal by
the insurance company and first time it was raised before this Court
by the insurance company. In light of these, this Court cannot
consider such contentions which was first time raised by the
insurance company before this Court.
5. The
said view has taken by Apex Court in case of State of Maharashtra
versus Ramdas Shrinivas Nayak and another
reported in AIR
1982 SC 1249, the
apex court has taken view that the Judge’s record is conclusive,
neither lawyer nor litigant may claim to contradict it except before
the Judge himself but nowhere else. Relevant observations made by the
apex court in para 4,5,6 and 7 of the said judgment are reproduced
as under:
4.
When we drew the attention of the learned Attorney General to the
concession made before the High Court, Shri A. K. Sen, who appeared
for the State of Maharashtra before the High Court and led the
arguments for the respondents there and who appeared for Shri Antulay
before us intervened and protested that he never made any such
concession and invited us to peruse the written submission made by
him in the High Court. We are afraid that we cannot launch into an
inquiry as to what transpired in the High Court. It is simply not
done. Public Policy bars us Judicial decorum restrains us. Matters of
Judicial record are unquestionable. They are not open to doubt.
Judges cannot be dragged into the arena. “Judgments cannot be
treated as mere counters in the game of litigation”. (Per Lord
Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136). We are
bound to accept the statement of the Judges recorded in their
judgment, as to what transpired in court. We cannot allow the
statement of the Judges to be contradicted by statements at the Bar
or by affidavit and other evidence. If the Judges say in their
judgment that something was done, said or admitted before them, that
has to be the last word on the subject. The principle is well-settled
that statements of fact as to what transpired at the hearing,
recorded in the judgment of the court, are conclusive of the facts so
stated and no one can contradict such statements by affidavit or
other evidence. If a party thinks that the happenings in court have
been wrongly recorded in a judgment, it is incumbent upon the party,
while the matter is still, fresh in the minds of the Judges, to call
the attention of the very Judges who have made the record to ‘the
fact that the statement made with regard to his conduct was a
statement that had been made in error (Per Lord Buckmaster in
Madhusudan v. Chandrabati, AIR 1917 PC 30). That is the only way to
have the record corrected. If no such step is taken, the matter must
necessarily end there. Of course a party may resile and an Appellate
Court may permit him in rare and appropriate cases to resile from a
concession on the ground that the concession was made on a wrong
appreciation of the law and had led to gross injustice; but, he may
not call in question the very fact of makingthe concession as
recorded in the judgment.
4-A.
In R. v. Mellor (1858) 7 Cox CC 454 Martin B was reported to have
said : “We must consider the statement of the learned judge as
absolute verity and we ought to take. his statement precisely as a
record and act on it in the same manner as on a record of Court which
of itself implies an absolute verity.”
5.
In King. Emperor v. Barendra Kumar Ghose, (1924) 28 Cal WN 170 : (AIR
1924 Cal 257) (FB), Page, J. said.
“………….these
proceedings emphasise the importance of rigidly maintaining the
rule that a statement by a learned Judge as to what took place during
the course of a trial before him is final and decisive; it is not to
be criticised or circumvented; much less is it to be exposed to
animad version.”
6.
In Sarat Chandra v. Bibhabati Debi (1921) 34 Cal LJ 302 : (AIR 1921
Cal 584), Sir Asutosh Mookherjee explained what had to be done :
“It
is plain that in cases of this character where a litigant feels
aggrieved by the statement in a judgment that an admission has been
made, the most convenient and satisfactory course to follow, wherever
practicable, is to apply to the Judge, without delay and ask for
rectification or review of the judgment”.
7.
So the Judges’ record is conclusive. Neither lawyer nor litigant may
claim to contradict it, except before the Judge, himself, but nowhere
else.??
6. Similarly,
in the matter of Daman Singh and others v. State of Punjab and
others, etc. reported in AIR 1985 SC 973, Five Judges’
Bench of the Hon’ble Apex Court observed the same in Para 13 of the
said judgment, which is quoted as under :
?S13.
The final submission of Shri Ramamurthi was that several other
questions were raised in the writ petition before the High Court but
they were not considered. We attach no significance to this
submission. It is not unusual for parties and counsel to raise
innumerable grounds in the petitions and memoranda of appeal etc.,
but later, confine themselves in the course of arguments to a few
only of those grounds, obviously because the rest of the grounds are
considered even by them to be untenable. No party or counsel is
thereafter entitled to make a grievance that the grounds not argued
were not considered. If indeed any ground which was argued was not
considered it should be open to the party aggrieved to draw
attention of the court making the order to it by filing a proper
application for review or clarification. The time of the superior
courts is not to be wasted in enquiring into the question whether a
certain ground to which no reference is found in the judgment of the
subordinate court was argued before that court or not. ???
7. Considering
the above two judgments, the Apex Court has held the said view in
case of Shankar K. Mandal and Others v. State of Bihar and
Others reported in (2003)
9 SCC 519. The relevant
observation is quoted as under :
?SHeld
: It is not open for the appellants to take such stand before the
Supreme Court, as they are bound by the observations of the High
Court. If there was any wrong recording of the stands or a different
stand was taken, the only course open to the appellant was to move
the High Court. Statements of fact as to what transpired at the
hearing, recorded in the judgment of the Court, are conclusive of the
facts so stated and no one can contradict such statements by
affidavit or other evidence. If a party thinks that the happenings in
court have been wrongly recorded in a judgment, it is incumbent upon
the party, while the matter is still fresh in the minds of the
Judges, to call the attention of the very Judges who have made the
record. That is the only way to have the record corrected. If no such
step is taken, the matter must necessarily end there. It is not open
to the appellant to contend before the Supreme Court to the contrary.
It is also not open to contend that a plea raised was not
considered.??
8. In
view of the decisions of Apex Court as referred above, when no such
contention was raised before the Claims Tribunal by the appellant,
this Court cannot consider the same.
9. Therefore,
according to my opinion, Tribunal has rightly examined the matter on
the basis of the records and the findings recorded by the Tribunal
cannot consider to be baseless and perverse and therefore, according
to my opinion, Tribunal has not committed any error which require
interference by this Court as there is no substance in the present
appeal. Accordingly, present appeal is dismissed.
10. The
amount, if any, which has been deposited by insurance company before
the registry of this Court be transmitted to the Claims Tribunal
concerned immediately.
11. As
the First Appeal has been dismissed by this Court, no order is
required to be passed in Civil Application and therefore, Civil
Application is disposed of accordingly.
[H.K.
RATHOD, J.]
#Dave
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