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FA/137/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 137 of 2010
To
FIRST
APPEAL No. 138 of 2010
With
CIVIL
APPLICATION No. 846 of 2010
In
FIRST APPEAL No. 137 of 2010
To
CIVIL
APPLICATION No. 847 of 2010
In
FIRST APPEAL No. 138 of 2010
=========================================================
NEW
INDIA ASSURANCE CO.LTD - Appellant(s)
Versus
ARVINDBHAI
RAMBHAI VALA & 2 - Defendant(s)
=========================================================
Appearance
:
MS
LILU K BHAYA for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 01/02/2010
ORAL
ORDER
Heard
learned advocate Ms. Lilu K. Bhaya appearing on behalf of appellant
New India Assurance Company Limited.
In
both appeals, appellant insurance company has challenged interim
orders passed by MACT, Junagadh in Claim Case No.47 of 2006 being an
Interim Relief Application No.27 of 2006 Ex.6 dated 3rd
August 2009 and in Claim Case No.48 of 2006 Ex.6 being an Interim
Relief Application No.28 of 2006 decided on 3rd August
2009. In both interim orders, Claims Tribunal, Junagadh has awarded
Rs.25,000/- with 9% interest in favour of respondents claimants.
The
claim petitions filed by claimants were arising from one accident
occurred on 22nd June 2005 at about 10-00 am between
Satadhar to Visavadar road. The FIR was lodged being CR-I No.71 of
2005 before Visavadar Taluka Police Station.
The
claimants were travelling in Rickshaw No.GJ-11-W-7290 with their
goods towards village Visavadar. At that time, Opponent No.1 driven
the said rickshaw in rash and negligent manner and due to that, it
had turned turtle causing serious injuries to applicants claimants on
various parts of body which has resulted into disablement to them,
therefore, 166 application is filed by both claimants against
opponents. The appellant insurance company has filed its composite
reply before claims tribunal against main claim petition as well as
interim application, wherein, it is denied the factum of accidentand
resultant disability to claimants and their liability to pay the
compensation. The appellant insurance company mainly contended that
opponent No.1 who was driving the rickshaw in question was not
holding legal and valid driving licence at the time of accident and
therefore, there being a breach of terms and conditions of insurance
policy, therefore, they are not liable to answer the claim. It is
also alleged that claimants were travelling in said vehicle without
any goods and therefore, being a gratuitous passengers, claimants are
not entitled to get any compensation from them. Before claims
tribunal, claimant has produced documentary evidence which consists;
copy of FIR, Panchnama of scene of occurrence, Form No.54, RC Book of
vehicle, first page of charge-sheet, driving licence, insurance
policy, MLC certificate, police statement, disability certificate.
Copy of insurance policy has also been produced by opponent No.3
appellant insurance company before claims tribunal. Thereafter,
claims tribunal has heard both learned advocates appearing on behalf
of claimants as well as appellant insurance company. Learned advocate
Mr. V.H. Kanazaria for appellant insurance company has submitted
his written arguments at Ex.26 and whatever contentions raised in
written statement, same has been referred and relied upon by
appellant insurance company before claims tribunal. The appellant
insurance company has relied upon certain decisions of Apex Court as
well as of this Court. Thereafter, claims tribunal has observed in
Para 8 and 9 as under:
8. Now,
it is well settled principles of law that the provisions of S.140 of
the MV Act is based on No Fault Liability and the claimant has
prima facie proved factum of accident and involvement of the vehicle
as well as resultant permanent or partial disability and the
insurance of the vehicle. The contention raised by the insurer as to
the travelling of the applicant with goods in the carrier rickshaw
and legality and validity of the driving license of its driver is a
matter of recording evidence and the same cannot be decided at this
stage. It is the specific contention of the applicant that he was
travelling in the rickshaw along with his goods. Whether the
applicant was travelling in the said vehicle with goods or not may be
decided only after recording evidence. So far the decisions relied on
by Mr. Kanzaria are concerned, in most of those cases, decisions have
been reached at final trial and not at the stage of deciding
application under No Fault Liability .
9. Now,
on perusal of the entire documentary evidence, it clearly transpires
that the claimant has produced all the relevant documents satisfying
the provisions of S.142 of the MV Act. Thus, the claimant is entitled
to get interim compensation of Rs.25,000/- under Sec.140 of the MV
Act from all the opponents jointly and/or severally. It may be
clarified that if, at the conclusion of trial, the opponent No.3
succeeds to prove its plea for being exonerated from the liability,
it will be at liberty to recover the amount paid by it to the
claimant from the owner of the vehicle.
Learned
advocate Ms. Bhaya raised almost same contentions which were raised
before claims tribunal by advocate of insurance company. Learned
advocate Ms. Bhaya submitted that driver of goods vehicle which was
being a goods carrying transport vehicle and driver was not having an
endorsement to drive transport vehicle, therefore, it amounts to
breach of terms and conditions of policy and therefore, insurance
company cannot held liable to pay compensation. The claimants were
gratuitous passengers travelling in goods vehicle without being
having goods with them, therefore, she relied upon decision of Apex
Court in case of Smt. Yallwwa reported in 2007 ACJ 1934, where, if
insurance company raised statutory defence covered by Section 149(2)
of MV Act, even at the stage of interim application, such contention
must have to be examined by claims tribunal.
I
have considered submissions made by learned advocate Ms. Bhaya and I
have also perused interim orders passed by claims tribunal in both
cases, if the contention raised by learned advocate Ms. Bhaya are to
be accepted at this stage, then, both appeals are required to be
admitted by this Court, but, question is that whether such admission
of appeals are in interest of both parties or not, is to be
considered by this Court. If both appeals are admitted, naturally,
claim petition filed by claimants under Section 166 of MV Act must
have to be held up till first appeals are decided by this Court. The
question of merits is not to be examined at interim stage, otherwise,
there is no scope to consider merits in 166 application. The
contentions which are raised, require evidence from both sides,
therefore, such detailed examination naturally not permissible while
deciding interim application. However, if these both appeals are
disposed of by this Court without expressing any opinion on merits
with a direction to claims tribunal concerned to decide 166
application independently without influence by interim order, it will
meet end of justice between both parties.
Therefore,
it is directed to claims tribunal concerned to decided 166
application filed by claimants in both cases independently without
influence by present interim orders passed in both applications in
accordance with law after giving reasonable opportunities of hearing
to all respective parties.
The
claimant is directed not to withdraw 166 application and not to
abandon 166 proceedings.
It
is directed to appellant insurance company to deposit entire awarded
amount together with cost and interest before claims tribunal
concerned within a period of one month from date of receiving copy of
present order.
After
realising said amount from appellant insurance company, it is
directed to claims tribunal concerned to pay 30% from it by account
pay cheque in name of Arvindbhai Rambhai Vala and Ramjibhai Hirabhai
Bajaniya, after proper verification in both cases, respectively.
Rest
of amount in both cases is to be invested in any Nationalised Bank
initially for a period of three years in name of each respondent
claimant individually with cumulative interest till 166 applications
are finally decided by claims tribunal concerned which requires
periodical renewal till 166 applications are decided and claimants
are not entitled any amount of interest upon said FDR till 166
applications are decided by claims tribunal concerned finally.
It
is made clear by this Court that whatever amount received by
claimants are subject to final outcome of 166 applications. In case,
if appellant insurance company will succeed in 166 application, then,
whatever amount lying with claims tribunal may be refunded to
appellant insurance company by account payee cheque in its name,
after proper verification.
In
view of above observations and directions, both appeals are disposed
of without expressing any opinion on merits.
When
first appeals are disposed of by this Court today, no order is
required to be passed in civil applications. Hence, both civil
applications are disposed of.
The
amount, if any, deposited by appellant insurance company before
registry of this Court, be transmitted to claims tribunal concerned,
forthwith.
[H.K.
RATHOD, J.]
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