PREMJIBHAI BHIMJIBHAI KERASIA Vs. RAVJI JESANG KOTHIVAR

JUDGEMENT

(1.) The appellant challenges the judgment and award dtd. 9/3/2021 passed in Motor Accident Claim Petition No.370 of 2014 passed by the Motor Accident Claims Tribunal, Kachchh at Bhuj as well as the order dtd. 25/10/2021 passed on Review Application No.6 of 2021, wherein the Tribunal has rejected the review application on the ground that original opponent Nos.1 and 2 did not remain present when the case was called out before the Tribunal.

(2.) Learned advocate Mr. Hiren M. Modi for the appellant submits that the appellant is the owner of the vehicle being Truck No. GJ-12-Z-2766 which was involved in the accident. Learned advocate submits that the review petition was filed to reconsider the order of pay and recover, wherein in the impugned judgment in MACP No.370 of 2014 in paragraph 2 of the operative order, the insurance company was given the liberty to recover the amount from the appellant after following due procedure according to law. Learned advocate submits that the observation of the insurance company was on the premise that no driving licence was produced by the driver on the involved truck. Learned advocate submits that the Tribunal could have called for the information under Form 54 of the Central Motor Vehicles Rules, 1989 and could have procured the copy of the licence. Learned advocate submits that opponent No.4 insurance company had moved an application Exh. 44 on 4/1/2021 with a prayer for direction against opponent No.1 driver calling upon to produce licence. Learned advocate submits that on that application, the order was passed, inter alia, directing that the driver and the owner of the vehicle being Truck No. GJ-12-Z-2766 to produce the copies of the documents mentioned in the preferred application. Learned advocate submits that in spite of that order, no order for issuance of notice was prayed by the insurance company and therefore, though the order was passed below Exh. 44, it could not be served. Hence, there was no compliance and immediately after the order being passed on Exh. 44 on 22/1/2021, the insurance company passed a closing purshis and thus, learned advocate submits that though the licence was available with the driver, it could not be produced. Learned advocate submits that on very ground, the review petition was moved, but the Tribunal found that below Exh. 44 learned advocate had put an endorsement of 'seen' and thus, the Tribunal referred that such an endorsement would conclude that learned advocates were aware of the order below Exh. 44 and after the order below Exh. 44, the final award was passed on 9/3/2021, i.e. after almost one and half months and thus concluding that the original opponent Nos.1 and 2 were put to the notice by order below Exh. 44 to produce valid and effecting driving licence, but opponent No.1 had failed to do so.

(3.) Countering the arguments of learned advocate Mr. Modi, learned advocate Ms. Karuna V. Rahevar for the insurance company submits that the burden of failure of opponent Nos.1 and 2 of MACP No.370 of 2014 cannot be laid down on the insurance company to consider any non-observance of the procedure where actually the insurance company had called upon opponent Nos.1 and 2 by way of moving Exh. 44 to produce the original licence and when the advocates were on record, there was no specific need for the issuance of notice to the party concerned. Learned advocate Ms. Rahevar submits that the review petition was rightly rejected and thus submits that one opportunity has been granted and when opponent Nos.1 and 2 failed to comply the order, that itself would be a ground for rejection of the present appeal.