Gujarat High Court Case Information System
Print
FA/3140/2006 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3140 of 2006
=========================================================
BAJAJ
ALLIANZ GENERAL INSURANCE CO. LTD. - Appellant(s)
Versus
PARESH
VASANTBHAI SOLANKI & 1 - Defendant(s)
=========================================================
Appearance
:
MR
PV NANAVATI for
Appellant(s) : 1,MR VIBHUTI NANAVATI for Appellant(s) : 1,
None
for Defendant(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 03/09/2007
ORAL
ORDER
The
present appeal is against the award passed by the Tribunal for
paying interim compensation.
Upon
hearing Mr.Nanavati, learned Counsel for the appellant, it appears
that the matter is covered by the decision of this Court in First
Appeal No.1768 with No.1769 of 2007 dated 30.3.2007 and this Court
in the said decision observed as under:-
?S3. Mr.
Nanavati, learned counsel appearing for the appellants in both the
appeals raised the contention that since there was no additional
payment of the premium, qua liability of the driver, there was no
liability of the insurance company and consequently, the Tribunal
has no jurisdiction. Therefore, he submitted that the Appeals may
be entertained. During the course of the hearing, he relied upon
the decision of this Court in First Appeal No.1193/02
(Coram:A.M.Kapadia,J.) decided on 31.03.2005; in First Appeal
No.3088/97 & Ors. (Coram:K.S.Jhaveri,J.) decided on
14.08.2006; in First Appeal No.2310/03 (Coram:Akshay H.Mehta,J.)
decided on 21.02.2007 and he contended that different views are
taken. However, considering the facts and circumstances, similar
view may be taken by this Court.
4. It
may be recorded that essential purpose of fixing the payment under
Section 140 of the Motor Vehicles Act is to provide immediate
compensation by way of an interim measure to the injured or the
victim of the accident or the dependents, as the case may be. The
detailed examination of the contention may be at the time when
final award is passed and such an interim order is subject to the
final award. It may be that in very very rare case, this Court may
examine the question of jurisdiction, if it touches to the root of
the matter. However, normally the defence of the Insurance Company
can better be examined at the final award. If such an approach is
not taken and the exercise of power under Section 140 is read to
leave room for a full fledge detailed inquiry, it may frustrate
the very purpose of the interim measure to be provided to the
claimant. Suffice it to say that the Tribunal has to exercise the
judicial discretion at the prima facie stage after considering the
material prima facie. As such, the exercise is undertaken by the
concerned Tribunal in the impugned orders, hence, I find that the
present cases are not such, which may fall in the exceptional
category for interference qua ordering for interim payment by way
of an interim measure.
5. However,
the grievance on the part of the Insurance Company against the
claimant for refund of the amount in the event it succeeds in the
claim petition, consequently resulting into a situation of no
liability on the part of the Insurance Company, can be
sufficiently taken care of if the claimant at the time of
withdrawal of the amount furnishes the security or surety to the
satisfaction of the Tribunal and even otherwise also, the payment
is subject to the final award. Even on the aspects of abandonment
of the claim by the claimant after having withdrawn the amount or
after having received the interim payment, may not be permissible
and therefore, the grievance raised on behalf of the appellants to
the extent of putting condition upon the claimant to file an
undertaking appears to be reasonable.
6. It
appears that the above referred decisions of different Benches of
this Court, in certain cases, withdrawal of the payment is
permitted to the extent of 50%, whereas in certain case, the
amount is ordered to be deposited in the Fixed Deposit Receipt and
the interest is made payable. In the impugned orders, the Tribunal
has permitted withdrawal to the extent of 30%, so far as First
Appeal No. 1768/07 is concerned and so far as First Appeal No.
1769/07 is concerned, the Tribunal has permitted 50% of withdrawal
and the remaining amount in both the cases are even otherwise
ordered to be invested to the Tribunal.
7. Under
the above circumstances, I find that if the withdrawal as ordered
by the Tribunal is permitted on furnishing of solvent
surety/security to the satisfaction of the Tribunal, the same
would not prejudice the rights of the claimant. Similarly, if the
undertaking is ordered to be filed by the claimant as per the
decision, the same also would not be prejudicial to the rights of
the claimants since in any case, the claimant is to proceed with
the claim petition for further compensation.??
Similar
directions and observations to be issued in the present appeal also.
Hence, the following directions:-
(a) The
impugned order of the Tribunals are not required to be interfered
with at this stage. However, the order of the Tribunal shall
continue with the further following directions:
(i) The
Tribunals shall permit withdrawal of the amount upon the
furnishing of solvent surety/security of the equal amount by the
claimants.
(ii) The
claimants shall also file an undertaking before the Tribunal prior
to the withdrawal of the order to the effect that the main claim
petition shall not be abandoned or shall not be withdrawn or shall
not be permitted to be dismissed in default or for any other cause
by him and the claimants shall pursue the main claim petition on
merits.
In
the above circumstances, subject to the aforesaid observations and
directions, the appeal is dismissed. Liberty to the claimants to
apply if aggrieved by the observations and directions but before
actual withdrawal. It is clarified that the Tribunal shall decide
the appeal without being, in any manner, influenced by the present
order in the present appeal.
3.8.2007 (JAYANT
PATEL, J.)
vinod
Top