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FA/4510/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4510 of 2008
With
CIVIL
APPLICATION No. 10843 of 2008
=========================================================
UNITED
INDIA INSURANCE CO. LTD. - Appellant(s)
Versus
GANDABHAI
BAPUDAS PATEL & 1 - Defendant(s)
=========================================================
Appearance
:
MS
AVANI S MEHTA for
Appellant(s) : 1,
None for Defendant(s) : 1,
MR AV PRAJAPATI
for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 16/09/2008
ORAL
ORDER
Heard
learned Advocate Ms. Avani S.Mehta for the appellant Insurance
Company and learned Advocate Mr. AV Prajapati is appearing for
respondent no.2. Respondent No.1 has been served but has not
appeared before this court either in person or through an advocate.
It
is true that the matter has been notified today but name of learned
advocate Ms. Avani Mehta has not been notified. However,
considering the fact that it is a matter arising from an interim
award made by the claims tribunal, I am considering this appeal.
Appellant
insurance company has challenged interim award made by the claims
tribunal at Gandhinagar in claim petition no. 1536 of 1992 dated
20th June, 2006 wherein the claims tribunal has awarded
interim compensation of Rs.25,000.00 to the respondent claimant on
the basis of No Fault Liability with 6 per cent interest thereon
together with costs.
Accident
took place on 17th July, 1992 wherein the claimant has
received injury and therefore application under section 166 of the
MV Act 1988 is filed by the claimant before the claims tribunal
during the penency of which, the claimant filed application under
section 140 of the MV Act, 1988.
Claims
tribunal has examined the matter and considering the fact that the
vehicle is involved in accident, it has come to the conclusion that
at this stage, it is not necessary for the claims tribunal to decide
the merits of the matter and, therefore, after considering the
evidence on record, complaint, panchanama, copy of insurance policy
and medical papers, it has held that the ingredients of section
140/142 of the MV Act, 1988 have been satisfied and the claimants
are entitled for Rs.25000.00 on the basis of No Fault Liability.
Learned
Advocate Ms. Mehta raised contention that the claims tribunal has
not decided objections raised by the insurance company and,
therefore, claims tribunal has committed gross error. Relying upon
the apex court decision in Yallwwa (smt.) & others v/s. National
Insurance Co. Ltd. reported in 2007 (6) SCC 657, it was submitted by
her that in the said decision, it has been held that it is
permissible for insurer to raise a defence in terms of section
149(2) and section 140 does not contemplate that insurer shall also
be liable to deposit the amount while it has no obligation to do so
in terms of sec.147(2). Thereafter, he submitted that the tribunal
has ignored these contentions and defences raised by the insurance
company while deciding application under sec.140 of the MV Act, 1988
and, therefore, matter requires interference of this court.
I
have considered the submissions made by the learned Advocate Ms.
Mehta on behalf of the appellant insurance company. I have also
perused the impugned interim award made by the claims tribunal.
According to my opinion, when application under sec. 166 of the MV
Act, 1988 is pending before the claims tribunal, there is no purpose
in admitting this appeal because even if it is admitted, it has to
remain pending till application under sec. 166 of the MV Act, 1988
is not decided by the claims tribunal. According to my opinion, it
would be just and proper and would also met ends of justice if this
appeal is disposed of by this court without expressing any opinion
on merits of the matter with a direction to the insurance company to
deposit entire amount together with costs and interest as awarded by
the claims tribunal and out of that, 30% is to be disbursed to the
claimant and remaining is to be invested in any nationalized bank
with periodical renewal from time to time till the application under
sec. 166 is decided by the claims tribunal.
Accordingly,
this appeal is disposed of without expressing any opinion on merits
of the matter and it is directed to the appellant insurance company
to deposit awarded amounts together with interest and costs 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 is ordered to be transmitted to the claims
tribunal immediately.
After
realizing the amounts by the claims tribunal, it is directed to the
claims tribunal to pay 30 % thereof to the respondent claimant
Gandabhai Bapudas Patel by way of an account payee cheque and rest
of the amount is ordered to be invested in any nationalized bank in
the name of the respondent claimant but FDRs to remain in the
custody of the Nazir of the claims tribunal, initially for a period
of three years with periodical renewal from time to time till the
main application under sec. 166 of the MV Act, 1988 is decided by
the claims tribunal and the respondent claimant is not entitled to
any amount from the said FDRs and the claimant shall not abandon
hearing and proceedings of application under sec. 166 of the MV Act,
1988 and the claims tribunal shall have to examine merits of the
main matter under sec. 166 without being influenced by the interim
award passed by claims tribunal.
With
these observations and directions, this appeal is disposed of
without expressing any opinion on merits.
Since
the first appeal has been disposed of by this court, no order is
required to be made on the civil application for stay, therefore,
civil application for stay is disposed of accordingly.
(H.K.
Rathod,J.)
Vyas
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