1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR. First Appeal St. No.6121 of 2009 Civil Application No.1088 of 2009. United India Insurance Co.Ltd. Vs. Smt.Jyoti Wd/o Sharadrao Dhaskat and others. -------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's Orders. Shri B.Lahari, Advocate for the applicant/ appellant. CORAM : A. H. JOSHI, J. DATED : 04/05/2009. 1. This appeal alongwith application for condonation of delay is taken up for hearing. 2. This Court has called upon learned Advocate for the appellant to address the Court on merits. This would enable the Court to find out whether to entertain the application for condonation of delay, if it reveals prima facie that the appeal has merit. 3. It is seen that the appellant Insurance Company has denied the involvement of insured-offending vehicle in the accident. 2 4. It is seen that the driver and owner were served, who however, did not refute and rebut the testimony of the claimant. 5. The Insurance Company, who had liberty to summon the respondent Nos.1 and 2 followed the course adopted by respondent Nos.1 and 2 and did not call them to support the defence. 6. In the oral submission, the learned Advocate for appellant has urged that Advocate representing the Insurance Company in trial Court was responsible for failure to secure the evidence of the witnesses. 7. The denial of involvement of the subject matter vehicle in the accident as offending vehicle is thus a fact, which has gone untraversed. 8. The Tribunal has proceeded with the version of the claimant. It is not sufficient for the Insurance Company to have shirked the 3 responsibility by throwing the burden on the lawyer particularly when the truck owners, who were and are jointly and severally responsible have abstained from entering the witness box. 9. The appellant has failed to make out a case for fresh opportunity of hearing. 10. Even now the affidavit of the truck owner and driver has not been filed, which could have been produced as evidence and the remittance of the case to trial Court on limited issue of scrutiny for their evidence on cross-examination, etc. could have been made. 11. The act of filing of appeal is by way of taking chance without rising to the level of grounds needed for grant of indulgence. 12. This being a civil appeal cannot be entertained just for the sake of asking. The appellant has to show illegality and error, which is not shown. The appeal is therefore 4 seen to be fit to be dismissed without calling for records and without notice to the respondents. This would unnecessarily vex the poor claimants, who are fighting and waiting for compensation since three years. 14. In these premises appeal is seen to be heard rather without any chances on merit, and hence, admission, therefore, to be futile exercise. To issue notice on the application for condonation of delay and hearing is thus going to be an empty formality. 15. The appeal and application are liable to be and therefore, rejected. 16. Civil Application No.1089 of 2009 does not survive. JUDGE Khunte