FA/3441/1998 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3441 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BHARATBHAI R DEBHAR - Appellant(s) Versus PRITIBEN ANILKUMAR JOSHI & 6 - Defendant(s) ========================================================= Appearance : MR RAJNI H MEHTA for Appellant(s) : 1 - 2. MR SANDEEP N BHATT for Defendant(s) : 1 - 5. DELETED for Defendant(s) : 6, NOTICE SERVED BY DS for Defendant(s) : 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 28/04/2008 ORAL JUDGMENT FA/3441/1998 2/3 JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. Heard learned advocate Mr.Mehta for the appellant-the owner of the vehicle involved in the accident–original opponent no.2 before the Tribunal. Learned advocate Mr.Sandeep N Bhatt representing respondent no.1 to 5 – original claimants before the Tribunal is not present when the matter is called out. Respondent no.7, though served, has chosen not to appear in the matter. The New India Assurance Company Ltd., original opponent no.3 before the Tribunal and original appellant no.2 before this Court is also not represented by anyone. Respondent no.6 stands deleted right from the stage of trial before the Tribunal. 2. This is an appeal which was originally preferred by the present appellant along with present respondent no.7-owner and driver of the vehicle involved in the accident respectively. However, at the later stage, Civil Application No.4521 of 2008 came to be preferred and by virtue of the order passed therein, original opponent no.2 came to be transposed as respondent no.7. 3. It also appears from para 2 of the judgment impugned that the driver of the vehicle involved in the accident was deleted before the Tribunal whereas the owner – present appellant did not file any written statement nor did he contest the claim FA/3441/1998 3/3 JUDGMENT application before the Tribunal. Resultantly, the proceedings before the Tribunal proceeded against him ex-parte. 4. In view of the above undisputed situation, the joint appeal by the insurer with the insured would not have been maintainable even after resorting to the remedy of transposition of the insurer as respondent. The appellant's appeal would not be maintainable as the appellant being owner of the vehicle did not appear before the Tribunal, did not file any written statement and did not contest the claim petition at all before the Tribunal. Under the circumstances, the appeal has to fail. (See United India Insurance Company Ltd and another. V/s Shilpa Jigishbhai @ Jignesh Vyas and others, 2005 ACJ 1645). 5. The appeal, therefore, stands dismissed with no order as to costs. ( A.L.DAVE, J ) ( SHARAD D DAVE, J ) pathan