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FIROZ KHAN CHHIPA versus MEHBOOB & ORS.

High Court of Rajasthan

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FIROZ KHAN CHHIPA v MEHBOOB & ORS. - CMA Case No. 05567 of 2006 [2007] RD-RJ 1274 (13 March 2007)

8&9

S.B. CIVIL MISC. APPEAL NO.5565/2006.(DRJ)

Mehboob Vs. Firoj Khan & Ors. ...

S.B. CIVIL MISC. APPEAL NO.5567/2006.(DRJ)

Firoz Khan Chhipa Vs. Mehboob & Ors. ...

Date of Order : 13th March 2007.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. Talat Bari, for the appellant in CMA No.5565/2006 (DRJ).

Mr. Pankaj Gupta,for the appellant in CMA No.5567/2006 (DRJ). ....

BY THE COURT:

These two appeals, Civil Miscellaneous Appeal

Nos.5565/2006 (DRJ) and 5567/2006 (DRJ), filed respectively by the owner of vehicle involved in accident and by the claimant, against the same award dated 05.04.2006 made by the Motor

Accidents Claims Tribunal, Pali in Claim Case No.53/2004 suffer from various defects; and are taken up for disposal together for being related to the same award and for the reasons and circumstances as shall appear hereafter.

CMA No.5565/2006 (DRJ) filed by the owner of the vehicles carries a major defect that the certificate in proof of deposit of the amount under Section 173 of the Motor Vehicles

Act has not been filed. It carries further defects that the age of the appellant has not been mentioned, capacity of the parties has not been mentioned and court fee of Re.1/- has not been affixed on the impugned order.

In other appeal, CMA No.5567/2006 (DRJ) filed by the claimant, the catalogue of defects reads as under:-

"1. It is time barred by 6 days counsel has not filed application u/s 5 of Limitation Act. 2. Age of appellant not mentioned. 3. Capacity of parties not mentioned. 4. Valuation of appeal and court fee blank. 5. Certified copy of impugned order dt. 5/4/06 not filed. 6. Photo-copy of impugned order is not clearly legible. 7. Court fee Rs.1/- not affixed on photo-copy of impugned order."

By the impugned award, the Tribunal has allowed compensation in the sum of Rs.65,000/- together with interest @ 6% per annum for the loss allegedly suffered by the claimant

Firoz Khan due to the injuries sustained in a vehicular accident involving a mini truck bearing registration No. RJ 22 G 0501 belonging to the appellant Mehboob; liability for payment has been fastened on the driver and owner of the vehicle; and the insurer has been exonerated with the findings that the victim was travelling as passenger in the goods vehicle and its driver was not holding a valid driving licence. While in CMA No.5565/2006

(DRJ), the owner of the vehicle seeks to contend that the

Tribunal has failed to apply the principles of res ipsa loquitur and contributory negligence and has erred in fixing responsibility towards accident in the driver of the vehicle belonging to the appellant; that the Tribunal has been in error in exonerating the insurer of its liability; and that the quantum of compensation awarded is excessive. On the other hand, the claimant in his

CMA No.5567/2006 (DRJ) seeks to contend that the quantum of compensation awarded is too low and grossly inadequate.

Both these appeals were filed on 10.07.2006 and for non-removal of defects, CMA No.5565/2006 (DRJ) was placed before the Registrar (Administration) on 24.01.2007 but nobody appeared for the appellants and the defects were not removed, hence, the matter was listed before the Court.

Other CMA No.5567/2006 (DRJ) was also placed before the Registrar (Administration) on 21.02.2007 and 26.02.2007 but for nobody being present for the appellant and the defects having not been removed, the matter was listed before the Court. Both these appeals were listed on 01.03.2007 when they did not reach; were listed on 02.03.2007 and again on 08.03.2007, when they were passed over.

Today, on taking up these appeals for consideration, learned counsel Mr. Talat Bari appearing for the vehicle owner in

CMA No.5565/2006 (DRJ) submits that despite making all efforts, he has not been able to establish contact with the appellant and he is not in a position to make a definite statement about removal of defects.

In CMA No.5567/2006 (DRJ), learned counsel Mr.

Pankaj Gupta appearing for the claimant has also expressed same difficulty that for want of establishing contact with the claimant-appellant, he is not in a position to make any definite statement about the removal of the defects.

It has been noticed while scanning through the records of these appeals that CMA No.5567/2006 (DRJ) filed by the claimant carries the defects that it is barred by limitation by 6 days and that the certified copy of the impugned award dated 05.04.2006 has not been filed and its photostat filed with this appeal is not clearly legible. The significant fact remains that the photostat that has been filed in CMA No.5567/2006 (DRJ) by the claimant-appellant is a copy of the very certified copy that has been filed in owner's appeal No.5565/2006 (DRJ) that has been issued on application No.448 dated 17.04.2006 by the

Tribunal.

The appeal filed by the claimant-appellant remains barred by limitation by 6 days and no application seeking condonation of delay has been moved despite several opportunities and this Court is clearly of opinion that there is no justification for keeping this matter pending particularly when the learned counsel appearing for the appellant is not even in a position to make any definite statement if at all claimant wants the defects to be removed and to proceed with the appeal or not.

There is no reason for which other defects too have not been removed for long.

The claimant's appeal remains barred by limitation by 6 days though filed on 10.07.2006, the very day other appeal of the owner was filed, because it has been filed with a photostat of the certified copy and, therefore, no copying days could be provided; although owner's appeal is within limitation by exclusion of six days spent in obtaining the certified copy. This

Court prima facie feels that the claimant and the vehicle owner seek to act in tandem by filing two appeals, though essentially in opposition to each other, but on the basis of the same certified copy probably issued on an application moved by or on behalf of the owner of the vehicle by the Tribunal.

Be that as it may, even after examining the matter on merits, this Court finds that the amount of compensation awarded by the Tribunal is not low or insufficient for the reason that the Tribunal has clearly found that the X-ray report was not produced on record by the claimant-appellant and in the overall circumstances of the case, has assessed reasonable compensation including that in relation to the alleged 13% permanent partial disablement.

The appeal filed by the owner of the vehicle suffers from a major defect that it is not accompanied by the proof of deposit required under Section 173 of the Motor Vehicles Act and for want of same, the appeal remains fundamentally incompetent and cannot be entertained and again, there remains no reason for which the appellant has chosen not to remove the defects though the appeal was filed on 10.07.2006. Being incompetent, this appeal also deserves to be dismissed.

As a result of the aforesaid, both these appeals fail and are, therefore, dismissed.

(DINESH MAHESHWARI), J.

Mohan/ 9

S.B. CIVIL MISC. APPEAL NO.5567/2006.(DRJ)

Firoz Khan Chhipa Vs. Mehboob & Ors. ...

Date of Order : 13th March 2007.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. Pankaj Gupta,for the appellant. ....

Vide order made in S.B. Civil Misc. Appeal

No.5565/2007 (DRJ) (Mehboob Vs. Firoz Khan & Ors.).

(DINESH MAHESHWARI), J.

Mohan/


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