1. A First Appeal preferred against the same impugned judgment and award has been dismissed by the Division Bench of this Court vide order dated 13.08.2002 passed in F.A. No.1551/2002. For ready reference, the judgment is reproduced hereunder;
"# The Insurance Company challenges the award dated 19th January, 2002, made by the Motor Accident Claims Tribunal (Main), Sabarkantha at Himmatnagar in Motor Accident Claims Petition No. 258/99 awarding a sum of Rs. 2,14,000/- by way of compensation to the injured claimant for the injuries suffered by him in the accident caused by the Respondent No. 1 while driving the tractor in a rash and negligent manner.
#. The claimant Kalabhai was proceeding in his camel-cart which he plied on rent, on 27.10.98, while going from his village Nani Vadol to Tejpura, the tractor driven by the Respondent No. 1 dashed against the camel-cart causing injuries to him, as a result of which he was removed to Civil Hospital, Himmatnagar for treatment and thereafter to Civil Hospital, Ahmedabad for further treatment. The claimant in his application claimed a sum of Rs. 2,00,000/- by way of compensation initially, which claim was raised to Rs. 4,50,000/-.
#. It was contended on behalf of the appellant Insurance Company that the complaint in respect of the offence of rash and negligent driving was filed late and, therefore, it was not proved whether the accident was occurred in the way in which it was narrated by the eye witness. The claimant in his deposition exh. 37 has stated that, while he was proceeding on his camel-cart from Nani Vadol to Tejpura, this tractor was coming from Himmatnagar side at an excessive speed and near Bhetali, the tractor came on the wrong side and dashed against the camel-cart, as a result of which, his left leg was fractured and he had fallen down. The accident occurred at 10.00 p.m. According to him, the camel was killed and the camel-cart was severely damaged as a result of this accident.
#. The Tribunal, from the material on record, came to a finding that there was contributory negligence on the part of the claimant to the extent of 20%. It has come in evidence that the impact was so severe that even the camel had died besides the camel-cart being extensively damaged. Therefore, the assessment of negligence on the part of the respondent- Tractor Driver at 80% was fully justified. The fact that the claimant was removed to the Civil Hospital, Himmatnagar immediately after the accident and thereafter to the Civil Hospital, Ahmedabad, is not disputed and in fact, it is the defence version that the claimant was going with the camel-cart in a zigzag fashion when the accident occurred. Therefore, the fact that the complaint was filed late, is hardly of any consequence in these proceedings. There is, in our view, absolutely no warrant to interfere with the finding of assessment at 80% recorded by the Tribunal. The amount of compensation has been worked out on rational basis warranting no interference by this Court. The appeal is, therefore, summarily dismissed.
As the First Appeal is dismissed, this Civil Application is rejected."
2. Hence, this appeal also stands disposed of in terms of the judgment and order reproduced herein above. Consequently, the appeal also stands dismissed in terms of the above judgment and order.
[K.
S. JHAVERI, J.] Pravin/* Top