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FA/287/1990 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 287 of 1990
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
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 ?
=========================================================
ORIENTAL
FIRE AND GENERAL INSURANCE CO.LTD. - Appellant(s)
Versus
SHANTABEN
ALIAS DHULIBEN WD/O.SHANKERBHAI D RAVAL & 8 - Defendant(s)
=========================================================
Appearance
:
MR
SB PARIKH FOR MR RAJNI H MEHTA
for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1 -
9.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 29/09/2010
ORAL
JUDGMENT
1. Heard
learned advocate Mr.Parikh for Mr.Mehta for the appellant. None
present for the respondents, though, the Board indicates that all the
respondents are served.
2. The
appellant-original opponent No.3 in M.A.C.P. No.498 of 1985, has
filed this appeal under Section 110-D of the Motor Vehicles Act,
1939, challenging the judgment and award dated 30.11.1988 passed by
the Motor Accident Claims Tribunal (Main), Panchmahals at Godhra, on
the grounds mentioned in the memo of the appeal.
3. The
facts in brief leading to filing of this appeal deserve to be set out
as under.
The
vehicular accident occurred on fateful
day of 07.03.1985 on Godhra-Vadodara highway near Himmatpura village,
wherein, the truck bearing registration No.GTY 4088 was involved. In
the said accident, one person namely Shankarbhai Desaibhai Raval lost
his life and one Gopaldas @ Kishankumar Kantilal Panchal was
seriously injured. The dependents of deceased-Shankarbhai Raval filed
M.A.C.P. No.498 of 1985 to recover Rs.2,50,000/- and
injured-Gopalbhai filed M.A.C.P. No.458 of 1986 to recover
initial amount of Rs.1 lac which subsequently reduced to Rs.50,000/-
by way of compensation.
4. The
facts narrated in the judgment indicate that deceased-Shankarbhai and
injured Gopalbhai boarded
the said truck after assuring the driver to pay for taking them to
the destination. The driver of the truck was driving the vehicle at a
very high speed and as a result thereof, the driver losing control
over the truck, the truck dashed with the tree resulting into the
accident. The Court allowed the claim petitions and awarded
Rs.29,000/- to the injured and the dependents of the deceased were
awarded Rs.2,26,000/-. The appellants, therefore, preferred two first
appeals, namely, First Appeal No.287 of 1990 and First Appeal No.1154
of 1997, inter alia challenging the awards passed in M.A.C.P. No.498
of 1985 as well as M.A.C.P. No.458 of 1986.
5. At
this stage, learned advocate has submitted that, in fact, on account
of order passed in First Appeal No.4401 of 2008 on 10.09.2008, the
original order passed in First Appeal No.1154 of 1997 was to be
treated as having been passed in First Appeal No.4401 of 2008. Both
the orders passed by this Court are taken on record. First Appeal
No.4401 of 2008 was arising out of the award passed in M.A.C.P.
No.458 of 1986 and this Court (Coram: H.K. Rathod, J.) vide order
dated 10.09.2008 disposed of the same on account of smallness of the
award amount without interfering with the same. The Court while
disposing of the said First Appeal No.4401 of 1997, observed that the
right of the Insurance Company to sustain its challenge against the
award of higher amount in pending First Appeal No.287 of 1990 would
not be prejudiced.
6. Learned
advocate appearing for the appellant submitted that at the relevant
time, as per the prevailing provision of Motor Vehicles Act, the
distinction with regard to passenger travelling with the goods was
not recognised in law and hence, the goods carriage was not permitted
to carry the passengers along with the goods and if, on account of
accident of such vehicle, the passengers travelling in the transport
vehicle/goods carriage, even if they were travelling with the goods
in question, they were not required to be indemnified or the
dependents are not required to be indemnified. The
Apex Court had an occasion to deal with this kind of claim in the
matter of Smt. Mallawwa
etc. Appellants V. Oriental Insurance Co. Ltd and others,
Respondents, reported in AIR 1999 Supreme Court, 589, wherein
Apex Court’s observations were absolutely clear with regard to
liability of the insurer in such a situation. This Court’s attention
was invited to paragraph no. 13 of the judgment, which reads thus:-
“13.
The 1939 Act is now replaced by the 1988 Act. Section 147 which
corresponds to old Section 95 has been substantially altered by the
Legislature. Therefore, the above interpretation of Section 95 of the
1939 Act will govern the cases which have arisen under the
1939 Act. According to our interpretation of Section 95(1) (b) (i)
and the proviso, the appeals filed by the Insurance Company are
allowed. ….”
7. In
view of this clear position of law, this Appeal is required to be
allowed and is accordingly allowed. The amount of claim which is
deposited and out of which, if some amount is paid to the claimants
and dependents, same is not to be recovered but the rest of the
amount which is not disbursed, the same shall be refunded to the
appellant-company and if the interest of deposit is also
ordered to be given to the dependents, then, that interest amount is
also not to be recovered. In short, the appellant will be entitled
only to get the refund of invested amount as principal amount.
(S.R.BRAHMBHATT,
J.)
Hitesh
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