Gujarat High Court
Logerlal vs Madhuben on 20 September, 2010
Author: A.M.Kapadia
Bench: A.M.Kapadia
Gujarat High Court Case Information System
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FA/4137/1998 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4137 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
LOGERLAL
GOPILALBHAI TRANSPOSED AS R-4 & 2
Versus
MADHUBEN
JAYANTILAL PATEL & 3
=========================================
Appearance :
None
for Appellant(s) : None for Petitioner No(s).: for Appellant(s) :
1,MR RAJNI H MEHTA for Appellant(s) : 2 - 3.
MR MD PANDYA for
Defendant(s) : 1 - 3.
DELETED for Defendant(s) :
4,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 20/09/2010
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) Challenge in this Appeal filed under Section 173 of the Motor Vehicles Act, 1988 ( the Act for short) is to the correctness of the judgment and award dated 17.4.1998 rendered in MACP No. 377 of 1993 by the MACT (Aux.), District Sabarkantha at Himmatnagar, by which the Claim Petition filed under Section 166 of the Act by the Respondents / Claimants to recover the compensation of Rs.12 lacs on account of untimely demise of Jayantibhai Patel, husband of the Respondent / Claimant No.1 and father of Respondent / Claimant Nos. 2 and 3, came to be partly allowed and thereby they have been awarded total compensation of Rs.7,84,924/- together with interest @ 12% per annum from the date of application till realization and also cost.
Initially, the Appeal was filed by driver, owner and the insurer of the vehicle involved in the accident. During the pendency of the Appeal, the driver has been transposed as Respondent No.4 and deleted. Similarly, Insurance Company is also transposed as Respondent No.5. Therefore, the Appeal filed by the owner is survived.
We have considered the submissions advanced by Mr. Rajni H. Mehta, learned Advocate for the Appellants, perused the impugned judgment and award as well as Record and Proceedings of MACP No. 377 of 1993.
Admittedly, on perusal of the Record and Proceedings of MACP No. 377 of 1993 as well as paragraph 6 of the impugned judgment and award, the owner has not contested the Claim Petition by filing written statement. The written statement is filed by the Insurance Company only at Exh. 25.
A Division Bench of this Court in case of United India Insurance Company Ltd. v/s Shilpa Jigishbhai @ Jignesh Vyas and others, 2005 ACJ 1645 has in terms held that if the Appeal is filed by the owner without contesting the claim petition by not filing the written statement, by not cross-examining the witnesses of the claimants and so also by not stepping into the witness box, is not maintainable.
In view of the clear elucidation in above referred to judgment by the Division Bench of this Court, since the Appeal filed by the owner without contesting the claim petition is not maintainable, instant Appeal deserves to be dismissed on that ground alone.
For the foregoing reasons, the Appeal fails and accordingly stands dismissed with no order as to costs.
At the time of admission of this Appeal, if any order is passed with regard to investment of the awarded amount with the concerned Tribunal, the same shall be paid to the claimants in terms of the directions contained under the impugned award by account payee cheque, upon due verification.
(A.M.Kapadia,J) (J.C.Upadhyaya,J) Jayanti* Top