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FA/2230/2011 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2230 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE R.M.CHHAYA
=========================================================
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 ?
=========================================================
ROYAL
SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, - Appellant(s)
Versus
RANJANBEN
RASIKBHAI PATEL & 4 - Defendant(s)
=========================================================
Appearance :
MR
SANDIP C SHAH for
Appellant(s) : 1,
MR MEHUL M MEHTA for Defendant(s) : 1 -
4.
MRHARSHALMSHAH for Defendant(s) : 1, 4,
MR. KANJIBHAI M BHUT
for Defendant(s) : 1, 4,
None for Defendant(s) :
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 09/08/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
Admit.
Mr.Bhut, learned counsel appears for the original claimants and
waives notice. So far as respondent no.5 is concerned, he was owner
of the vehicle and his presence would not be required at this stage.
The
present appeal arises against the judgement and award passed by the
Tribunal dated 07.05.2010 in MACP No.58/09, whereby the Tribunal has
awarded compensation of Rs.10,25,000/- with interest at the rate of
8% p.a.
The
relevant facts are that on 14.08.2009, when the deceased Rasikbhai
Hirjibhai was going in luxury bus No.GJ-13B-1217 at about 7.00
clock, near village Sokli, the driver lost the control of the bus
and the bus was turtled and the deceased Rasikbhai Hirjibhai Patel
sustained injury. Ultimately, he succumbed to the injury. The claim
petition was filed for the compensation of Rs.15,00,000/- with the
Tribunal. The Tribunal proceeded ex parte against the original
respondent no.2 Insurance Company appellant herein since after
service of notice, none appeared on its behalf. Thereafter, the
Tribunal passed the aforesaid judgement and the award. It may also
be recorded that as the appellant came to know about the aforesaid
ex parte judgement and award, it had preferred review application to
set aside the ex parte judgement and award and there was delay also
in the application for review. The Tribunal vide order dated
01.02.2001, dismissed the said application for condonation of delay
in review. Under the circumstances, the present appeal before this
Court against the judgement and award passed by the tribunal.
We
have heard Mr.Sandeep Shah for the appellant and Mr.Bhut for the
original claimants who are the main contesting party.
It
is an admitted fact that the appellant insurance company had no
opportunity to defend the case inasmuch as after the service of the
notice, they could not defend the case. The explanation submitted
is that Ahmedabad Branch was joined as party and the Head Office at
Chennai was not impleaded as party. It has also been submitted that
Head Office is looking after the court litigation cases and
therefore, as observed earlier, the application for review was
filed, but as there was delay, such delay was not condoned. Hence,
the appeal.
Mr.Shah,
learned counsel appearing for the appellant submitted that the
appellant is ready to abide by any terms and conditions which may be
imposed by this Court in the event this Court is inclined to remand
the matter to the Tribunal.
Whereas
Mr.Bhut, learned counsel appearing for the respondents-claimants
submitted that he is leaving the matter to the Court, but Court may
direct the appellant to deposit 50% of the amount and Court may also
direct the appellant to pay the cost since it is on account of the
default on the part of the appellant, the Tribunal proceeded ex
parte and the present litigation before this Court.
We
find that the appellant was the main contesting party in the claim
petition. If we consider the reasons recorded in the judgement, it
prima facie appears that had the opportunity given to the insurance
company, the matter could have been further examined on the aspect
of income of the deceased. Further, the insurance company was the
main contesting respondent since the liability was to be borne by it
in place of the insured after the award. Under the circumstances,
we are inclined to accept the explanation that the litigation was
being looked after by the Head Office by taking lenient view of the
matter. We are inclined to take such lenient view in view of the
peculiar circumstance that the appellant has agreed to abide by any
condition which may be imposed by this Court for deposit of the
amount as well as the cost to the original claimants.
We
find that even if the matter is to be remanded back to the Tribunal
for adjudication, the appellant must deposit 25% of the awarded
amount with interest. The awarded amount would come to Rs.11 lakh
and more, hence the appellant shall deposit the amount of Rs.3 lakh
with the Tribunal. Further, the appellant should also bear the cost
of the litigation of the original claimants and considering the
facts and circumstances, such cost can be quantified at Rs.10,000/-.
Mr.
Bhut, learned counsel appearing for the respondents submitted that
the Head Office of the appellant Company was not joined as party
before the Tribunal and the policy was issued by the Ahmedabad
office and therefore, Ahmedabad office of the appellant company was
rightly impleaded as party and therefore, it was submitted that this
Court may not remand the matter.
It
is true that one of the mode could be of joining Ahmedabad office as
party, but as it has been submitted on behalf of the appellant that
the Court cases and litigations were being looked after by Head
Office and because of communication gap between Ahmedabad and Head
Office, the matter could not be defended well in time, we find that
the discretion can be exercised but that too after deposit of a
reasonable amount and to further pay cost to the original claimants
who cannot be faulted by way of condonation of the default of the
appellant.
Hence,
the impugned judgement and award of the Tribunal is set aside on the
condition that the appellant deposits the amount of Rs.3 lakh with
the Tribunal within four weeks from today and pays the cost of
Rs.10,000/- to the claimants within the said period. After the
amount is deposited and the cost is paid, main claim petition shall
stand restored to the Tribunal. The Tribunal shall give an
opportunity of leading evidence to the parties concerned and
thereafter, shall pass the appropriate orders afresh preferably
within a period of six months from taking up of the matter for fresh
consideration. It is also observed that if the conditions are not
complied with, appeal shall stand dismissed.
The
amount of Rs.25,000/- which is already deposited pending the appeal
shall be given set off and the amount so deposited as per the
present judgement shall be subject to the final outcome of the order
which may be passed by the Tribunal.
Appeal
is allowed to the aforesaid extent. No order as to costs.
(JAYANT
PATEL, J.)
(R.
M.CHHAYA, J.)
*bjoy
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