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FA/4745/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4745 of 2008
=========================================================
NEW
INDIA ASSURANCE COMPANY LIMITED - Appellant(s)
Versus
THAKOR
SAVRAMBHAI KARSHANBHAI & 2 - Defendant(s)
=========================================================
Appearance
:
MR
SHALIN N MEHTA for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 24/09/2008
ORAL
ORDER
Heard
learned advocate Mr. SN Mehta on behalf of appellant.
The
appellant has challenged interim award passed by Motor Accident
Claims Tribunal, Banaskantha at Palanpur in MACP no. 112/2003 dated
29/9/2007. The claims Tribunal has awarded Rs. 25,000/- being
interim compensation in favour of respondent claimant while
exercising the power u/s 140 of Motor Vehicle Act.
Learned
advocate Mr. Mehta raised contention before this Court that accident
occurred on 13/3/2003 at about 10.00 a.m. when Savrambhai
Karshanbhai Thakor was traveling in Jeep bearing No. GJ-8-U-4961
which was a goods carriage and which was insured with present
appellant.
Learned
advocate Mr. Mehta submitted that respondent claimant was traveling
in goods carriage as unauthorized passenger which was in clear
breach of specific condition of insurance policy. Therefore,
insurance company is not liable to pay compensation to respondent
claimant.
He
submitted that claims Tribunal has not decided objection raised by
insurance company in 140 application. Looking to recent decision of
Apex Court, in case of Smt Yallawwa reported in 2007 (6) SCC
657, the claims Tribunal shall have to decide all the
contentions, which has been raised by insurance company u/s 149(2)
of Motor Vehicles Act. Therefore, according to him, Tribunal has
committed gross error in awarding compensation of Rs. 25,000/- in
favour of respondent claimants.
I
have considered submission made by learned advocate Mr. Mehta. The
application u/s 166 of Motor Vehicles Act is filed by respondent
claimants, which is pending before claims Tribunal. The claims
Tribunal has passed interim award in MACP no. 112/2003 exh 5, but
claims Tribunal has not examined contention raised by insurance
company and simply considered documents which were produced by
claimant. According to claims Tribunal, ingredients of section 140
read with section 142 are satisfied by claimants. Therefore, on
basis of No Fault Liability, Rs. 25,000/- has been awarded as
interim compensation with 7.5% interest.
Therefore,
according to my opinion, claims Tribunal has committed gross error
in not examining contention raised by insurance company, but looking
to that fact that application filed u/s 166 of Motor Vehicles Act is
pending, if this Court admitted this appeal, remain pending before
this Court so long. Therefore, in such circumstances, if this Court
dispose of appeal without expressing any opinion on merits and with
a direction to claims Tribunal to decide main application in
accordance with law without influence by interim award, then, it
will meet end of justice between parties.
Accordingly,
present appeal is disposed of by this Court at this stage without
expressing any opinion on merits with a direction to appellant
insurance company to deposit entire amount as awarded by claims
Tribunal together with interest and costs within a period of one
month from date of receiving copy of this order before claims
Tribunal.
After
realizing said amount from insurance company, it is directed to
claims Tribunal to pay 30% amount to respondent claimant by A/c
payee cheque in his name and rest of the amount is to be invested in
any Nationalized Bank for a period of three years with cumulative
effect in the name of respondent claimant. The FDR is to be
remained with Nazir department of concern claims Tribunal with
periodical renewal and respondent claimant is not entitled for
amount of interest till 166 application is decided by claims
Tribunal.
The
claims tribunal shall have to decided 166 application independently
in accordance with law without influence by the interim award and
decided all the contentions which will be raised by both parties in
accordance with law.
The
respondent claimant shall not withdraw 166 application and shall not
abandoned proceeding. In view of the above observations and
directions, present appeal is disposed of without expressing any
opinion on merits.
Today,
first appeal is disposed of by this Court. Therefore, no order is
required to be passed in civil application. Accordingly, civil
application is also disposed of.
(H.K.RATHOD,
J)
asma
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