KAMLESHKUMAR KISHANCHAND RAMCHANDANI Vs. CHELABHAI KHUSHALBHAI RAMI DECD

JUDGEMENT

(1.) This is a revision application under sec. 115 of the Civil Procedure Code against the judgment of the Motor Accident Claims Tribunal for Banaskantha at Palanpur. The petitioners are the widow and two minor children of the deceased Kishanchand Ramchandani who was killed in an accident while he was in a jeep car driven by opponent No. 1 Chelabhai Khushalbhai Rami. The accident occurred on 14/06/1975. The present petitioners filed the motor accident claim on 2/08/1980 together with an application for condonation of delay in filing the claim. In her application for condonation as well as in her affidavit the petitioner No. 3 Vidyaben widow of Kishanchand Ramchandani has stated that after the accident occurred she was residing with the younger brother of her deceased brother one Tedaram as there was 110 one to look after her and her two minor children aged 5 and 4. According to her her said brother-in-law i.e. the younger brother of her deceased husband told her that he did not want the money for the blood of his deceased brother and therefore. he told her not to file a motor accident claim. She has further stated that if She had insisted on filing the motor accident claim. her brother-in-law would have turned her out of his house and she and her children would have become shelterless. Therefore according to her she abstained from filing the motor accident claim. She has further stated that now she has been able to secure a job and therefore she has left her aforesaid brother-in-law and therefore now that she is free from his control she had filed this motor accident claim application. She therefore prayed for condonation of delay of over four years.

(2.) The opponent did not file any affidavit-in-reply to the averments made in the condition of delay application. Hence all the facts stated in the said condonation application have remained uncontroverted. The learned member of the Motor Accident Claims Tribunal while rejecting her application for condonation of delay has given the reason that the petitioner-widow had not adduced any evidence to prove the facts stated by her application for condonation of delay. According to the Tribunal she did not state when she left her brother-in-law when she got the job with whom she was serving; nor has she produced any evidence to show that her brother-in-law had infact prevented her from filing the claim Application.

(3.) Mr. D. K. Trivedi the learned counsel for the petitioners has urged that the Tribunal was nOt justified in rejecting the application for condonation Or delay on the ground that the facts staled therein are not supported by any evidence. According to Mr. Trivedi the fact that the opponents did not controvert the facts stated in the application was enough for the Tribunal to hold that the avertments made in the application were correct and the delay should have been condoned. There is a considerable force in the argument of Mr. Trivedi. When the facts started in an application are supported by an affidavit they should be accepted unless They are controverted by the other side. Moreover the Tribunal should have taken into consideration the fact that the widow was quite young aged about 23 years at the lime of accident and she had two minor children a daughter aged about 5 years and a son aged about 4 years at the time of accident. It is quite obvious that she must have been utterly helpless and therefore it appears quite believable when she says that she was wholly dependent on the younger brother of her deceased husband. The application for condonation of delay by young widow and two minor children deserved to be dealt with in a more considerate manner than what the Tribunal has done.