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FA/4565/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4565 of 2008
With
CIVIL
APPLICATION No. 10992 of 2008
=========================================================
UNITED
INDIA INSURANCE COMPANY LTD - Appellant(s)
Versus
SAROJBEN
RAJUBHAI BACHERBHAI DALWADI & 2 - Defendant(s)
=========================================================
Appearance
:
MR
RAJNI H MEHTA for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 17/09/2008
ORAL
ORDER
Heard
learned Advocate Mr. Sunil B. Parikh for the appellant Insurance
Company.
By
filing this appeal, the appellant has challenged interim award made
by the claims tribunal Bharuch in MACP No. 579 of 2004 dated
30.7.2007 wherein the claims tribunal has awarded interim
compensation of Rs.25,000.00 to the claimant under sec. 140 of the
MV Act, as No Fault Liability with 9 per cent interest thereon.
Claimant
had filed aforesaid claim petition under sec. 166 of the MV Act
before the claims tribunal at Bharuch and during the pendency of the
said application, claimant also filed application for interim
compensation under sec. 140 of the MV Act, 1988. Relevant record was
produced by the claimant before the claims tribunal and claims
tribunal came to the conclusion that the claimants are entitled for
compensation under section 140 of the MV Act,1988 on the basis of No
Fault Liability.
Learned
Advocate Mr. Parikh submitted that the deceased himself was driving
the motor cycle and, therefore, insurance company of motor cycle was
not liable under the Law of Torts. He also submits that the deceased
himself was driving the motor cycle and he himself was negligent in
driving the said vehicle and for his own negligence, insurance
company cannot be held liable even under sec. 140 of the MV Act,
1988. He also submitted that the claims tribunal ought to have
considered FIR and relevant record wherein it was specifically
mentioned that the deceased was driving the motor cycle and while
saving dog, he slipped and sustained injuries and,
therefore,claimants are not entitled for compensation from the
insurance company of motor cycle. He relied upon the decision of the
apex court reported in 2007(2) TAC 417 in the case of Oriental
Insurance Co. Ltd. V/s. Meena Variyal & Ohers. He also submitted
with all vehemence that inspite of such contention raised by the
appellant before the claims tribunal, the claims tribunal has not
examined it and awarded compensation under sec.140 of the MV Act,
1988. He also relied upon the apex court decision in case of Smt.
Yallwwa v/s. National Insurance Co. reported in 2007(6) SCC 657 and
submitted that the apex court has decided this issue by holding that
the claims tribunal must have to examine the objections/defences
raised by the insurance company while deciding an application under
sec. 140 of the MV Act, 1988.
I
have considered the submissions made by the learned Advocate Mr.
Parikh for the appellant. I have also perused the interim impugned
award made by the claims tribunal, Bharuch. Looking to the decision
of the apex court in case of Smt. Yallwwa v/s. National Insurance
Co. reported in 2007(6) SCC 657. However, ultimate purpose is to
have decision on merits in an application under section 166 of the
MV Act, 1988 filed by the claimants. This being an interim award,
whatever observations made by the claims tribunal shall not come in
the way of the claimant or the insurance company. According to my
opinion, even if this appeal is admitted considering the submissions
made by the learned advocate Mr. Parikh on behalf of the insurance
company,then also, same would remain pending before this court so
long as the main application under sec.166 of the MV Act, 1988 is
not decided by the claims tribunal. Therefore, according to my
opinion, it would be just and proper and would also met ends of
justice between the parties if this appeal is disposed of without
expressing any opinion on merits of the matter with a direction to
the claims tribunal to decide the main application for compensation
under sec. 166 of the MV Act, 1988 without being influenced by the
interim award dated 30.7.2007 in any manner whatsoever and to
decide the said application strictly in accordance with law and
evidence on record and to direct the appellant to deposit the entire
amount as awarded by the claims tribunal by interim award with costs
and interest before the claims tribunal.
Accordingly,
this appeal is disposed of without expressing any opinion on merits
of the matter with a direction to the appellant to deposit entire
amount awarded by the claims tribunal with costs and interest before
the claims tribunal within one month from the date of receipt of
copy of this order. Amount, if any, deposited by the appellant in
the registry of this Court be transmitted to the claims tribunal
immediately. After realising the amount by the claims tribunal, it
is directed to the claims tribunal to pay 30 per cent of the amounts
to the respondents claimants by way of an account payee cheque and
rest of the amount is ordered to be invested in any nationalized
bank initially for a period of three years with cumulative interest
with periodical renewal from time to time, the name of the
respondents claimants but FDRs to remain in the custody of th Nazir
of the claims tribunal concerned till the application under sec. 166
of the MV Act is decided by the claims tribunal and the respondents
claimants will not be entitled to make any withdrawal from such FDRs
till the main application under sec. 166 of the MV Act 1988 is
finally decided by the claims tribunal. Respondents claimants shall
not withdraw or abandon proceedings of the application under sec.
166 of the MV Act, 1988 and the claims tribunal shall have to decide
the application under sec.166 of the Act strictly in accordance with
law and evidence on record without being influenced by the interim
award dated 30.7.2007.
With
these observations and directions, this appeal is disposed of
without expressing any opinion on merits of the matter.
Since
the appeal has been disposed of by this court, no order is required
to be passed in civil application for stay, therefore, civil
application for stay is disposed of accordingly.
(H.K.
Rathod,J.)
Vyas
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