Gujarat High Court Case Information System
Print
FA/797/2010 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 797 of 2010
=========================================================
NATIONAL
INSURANCE CO LTD - Appellant(s)
Versus
MAHMAD
JAHURASHA KURESHI & 2 - Defendant(s)
=========================================================
Appearance
:
MR
MEHUL SHARAD SHAH for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 21/04/2010
ORAL
ORDER
This
appeal is directed against the award dated 20th July 2009
passed by the Motor Accident Claims Tribunal (Aux.), Fast Track Court
NO. 3 at Jamnagar in M.A.C.P. No. 95 of 2003 whereby the learned
Tribunal has awarded Rs. 63,460/- as compensation with interest @ 9%
per annum.
The
appellant-insurance company has attempted to raise contention, in
present appeal, about the nature/type and scope of the policy and the
extent of insurance company’s liability thereunder, contending inter
alia, that the policy was Act Only Policy and that
therefore the appellant-company was not liable to discharge any
obligation towards the passenger/s. The appellant-company did not
produce copy of the written statement along with the appeal, however
when asked by the Court the learned advocate for the
appellant-company supplied a copy of the written statement for
Court’s perusal.
On
careful examination of the written statement it comes out that the
said contention was not raised in the written statement. In absence
of any defence on the ground of the nature/type, form and scope of
the policy, obviously the claimant would not have led any evidence on
the issue or fact not raised or disputed by the company. It is the
case of the appellant-company that the contention was expressly
raised in the written statement. When in view of the absence of any
specific contention claimant did not get opportunity to lead any
evidence, it would not be open to the appellant-company to raise the
contention which was not raised in the written statement.
Furthermore,
on perusal of the policy it comes out that the insured had paid extra
premium for nine passengers. Therefore also, the said contention does
not hold any significance.
However,
so far as the second contention which is to the effect that the
extent was result of contributory negligence and the said fact ought
to have been taken in to account while quantifying the compensation,
prima facie does have substance. Mr. Shah is prima facie right in
contending that though the Tribunal has observed that the accident
was result of contributory negligence, it has for unjustifiable
reason not given effect to the said finding and the contributory
negligence has not been accounted. The appeal, to this extent
deserves to be considered.
Hence,
Notice returnable on 13th
May 2010. It is clarified that the appeal is being
entertained qua contention of regarding contributory negligence only.
(K.M.THAKER,J.)
Suresh*
Top