Gujarat High Court
United vs Chandubhai on 16 July, 2008
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/2818/2008 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2818 of 2008
With
CIVIL
APPLICATION No. 7330 of 2008
=========================================================
UNITED
INDIA INSURANCE COMPANY LIMITED - Appellant(s)
Versus
CHANDUBHAI
RAVJIBHAI ISHNAVA (VAGHARI) & 2 - Defendant(s)
=========================================================
Appearance
:
(MR
PV NANAVATI) for
Appellant(s) : 1,MR VIBHUTI NANAVATI for Appellant(s) : 1,
None
for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 16/07/2008
ORAL
ORDER
1. Heard learned advocate Mr. Vibhuti Nanavati appearing on behalf of appellant.
2. In this appeal, United India Insurance Company Limited is challenging the award passed by Motor Accident Claim Tribunal (Main) at Anand in MACP No.4506 of 2006 (Old No.634 of 2001) dated 10th May 2007. The Tribunal has awarded compensation of Rs.2,40,000/- with interest of 7.5% p.a. from the date of filing the claim petition till realisation with proportionate costs.
3. The accident occurred on 8th March 2001 at about 5-00 p.m. when deceased was sitting in the tractor No.GJ-7A-7005 and when said tractor reached at the place of accident, opponent No.1 is driving this tractor in a rash and negligent manner and at an excessive speed, lost control over the steering and as a result, tractor turn turtled and the said accident took place, where, Manjulaben has sustained serious injuries on her person. Immediately, Manjulaben was shifted to hospital, but, succumbed to the injuries.
4. According to claimants, while giving detail facts in claim petition in Para 3, it is made clear that deceased Manjulaben was 20 years old and doing work as a farm-labourer and used to earn Rs.1,500/- per month. Meanwhile, thereby that, at the date on which the accident occurred, she was sitting in the tractor for doing labour work, but, these facts are not denied by insurance company and no positive evidence was led by insurance company in support of their defence.
5. Learned advocate Mr. Nanavati raised contention before this Court that Tribunal has ignored the facts that deceased was sitting in the tractor while that accident was occurred. Therefore, looking to the statutory liability and insurance policy, insurance company is not liable to pay compensation to the respondent claimant. He submitted that such contention was raised in written statement by the insurance company vide Exh.23, but, Tribunal has not considered the said contention raised by insurance company and decided the matter knowing fully well that any person sitting in the tractor except driver is not covered by the insurance policy, therefore, Tribunal has committed gross error in passing the award of compensation in favour of respondent claimant. Except that, no other contentions raised by learned Advocate Mr. Nanavati before this Court.
6. I have considered the submissions made by learned advocate Mr. Nanavati and I have perused the award passed by Tribunal. The written statement Exh.23 filed by insurance company. The Para 4 of the award, where, contents of the written statement are narrated by the Tribunal, which is quoted as under :
?S4. That opponents No.1 and 2 have not submitted any W.S. so far. That opponent No.3 have submitted its W.S. at Exh.23, wherein date, time and place and age and income of the deceased have been denied in toto. That each and every averment of the claim petition have been denied, and applicant has been asked to prove the same with cogent evidence. It has been also submitted that no such alleged accident had taken place as alleged by applicant, and hence, present opponents are not liable to pay any compensation to the present applicant. It has been also submitted at the time of accident, driver of tractor was not holding valid and effective driving licence, and hence, opponent No.3 is not liable to pay any compensation to the present applicant and prayed to dismiss the claim petitions with cost.?S
7. In the aforesaid paragraph where the contentions of the written statement of the insurance company are narrated, no such contention was raised by insurance company in the written statement that because deceased was sitting on the tractor on mudguard, insurance company was not liable to pay compensation to the respondent claimant. However, it is necessary to note that advocate engaged by insurance company Mr. K.N. Mehta has not made any submission before the Tribunal that because deceased was travelling in tractor sitting at mudguard, company is not liable to pay any compensation to the respondent claimant. The insurance policy is clear not included any such type of person who was travelling in tractor sitting with mudguard.No such submissions are made by learned Advocate Mr. Mehta before the Claims Tribunal.
8. Learned advocate Mr. Nanavati further submitted that in written statement, such contention was raised and some how, not been taken into account by the Tribunal and therefore, there is an error committed by Tribunal.
9. I have considered the submissions made by learned advocate Mr. Nanavati, but, it is clear from the award that no such contention was raised by insurance company before the Tribunal that deceased was sitting at mudguard in the tractor. Therefore, insurance company is not liable to pay compensation. In absence of such contention specifically pressed it by insurance company before the Tribunal, the Tribunal is not supposed to examine such issue which was not raised before the Tribunal.
10. The view taken by Apex Court in case of State of Maharashtra v. Ramdas Shrinivas Nayak and Another reported in AIR 1982 SC 1249 = 1982 Cri.L.J. 1581, where, Apex Court has observed that record of the Court, it considered to be a conclusive and any affidavit of the advocate subsequent to the award not to be considered by the higher forum. The discussion made by the Apex Court in Para 4, 4A, 6 to 8 which are quoted as under :
?S4. 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 making the 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."
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.
8. On the invitation of Mr. Sen, we have also perused the written submissions made by him before the High Court. We have two comments to make: First oral submissions do not always conform to written submissions. In the course of argument, counsel, often, wisely and fairly, make concessions which may not find a place in the written submissions. Discussion draws out Many a concession. Second, there are some significant sentences in the written submissions which probabilise the concession. They are : "If in the existing case, the entire Council of Ministers becomes interested in the use of the statutory .power one way or the other, the doctrine of necessity will fill up the gap by enabling the Governor by dispensing with the advice of his Council of Ministers and take a decision of his own on the merits of the case. Such a discretion of the Governor must be implied as inherent in his constitutional powers ......... The doctrine of necessity will supply the necessary power to the Governor to act without the advice of the Council of Ministers in such a case where the entire Council of Ministers is biased. In fact, it will be contrary to the Constitution and the principles of democratic Government which it enshrines if the Governor was obliged not to act and to decline to perform his statutory duties because his Ministers had become involved personally. For the interest of democratic Government and its functioning, the Governor must act in such a case on his own. Otherwise, he will become an instrument for serving the personal and selfish interest of his Ministers." We wish to say no more. As we said, we cannot and we will not embark upon an enquiry. We will go by the Judges' record.?S
11. Similarly, in case of Daman Singh and Others v. State of Punjab and Others reported in AIR 1985 SC 973. This decision is given by Larger Bench of the Apex Court. The relevant Para 13 is, therefore, 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 argument 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 the 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? ?S
12. Further, in case of Shankar K. Mandal and Others v. State of Bihar and Others reported in (2003) 9 SCC 519, where, the Apex Court has held 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. Statement 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.?S
13. In view of above observations made by Apex Court and looking to the observations made by Tribunal, according to my opinion, no such contention was raised specifically before the Tribunal by the insurance company. The Tribunal has considered the matter while deciding the negligence of opponent No.1 and also examined the matter for quantum of compensation. Learned advocate Mr. Nanavati has not raised any contention in respect to negligence and quantum of compensation decided by the Tribunal. Therefore, unless the contention is raised by the appellant before the Tribunal, Tribunal is not supposed to examine it. Merely, raising contention in written statement and in support, no such oral evidence was led by insurance company before the Tribunal, naturally, Tribunal is not supposed to examine each contention of the insurance company raised in written statement. Not only that, no such oral submissions are made by Insurance Company before the Tribunal. Therefore, according to my opinion, contention raised by learned advocate Mr. Nanavati cannot be accepted and therefore, the same are rejected.
14. In view of above observations made by this Court and considering the award passed by the Tribunal which is just and proper while awarding the compensation in favour of respondent claimant. Learned advocate Mr. Nanavati has not raised any other contention except as referred above. Therefore, according to my opinion, there is no substance in the appeal, therefore, present First Appeal is dismissed.
15. The registry is directed to transmit Rs.25,000/- to the concerned Tribunal immediately.
16. In view of above order passed by this Court, the Civil Application does not survive. Accordingly, Civil Application is disposed of.
[H.K. RATHOD, J.] #Dave Top