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FA/464/2010 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 464 of 2010
=========================================================
THE
NEW INDIA ASSURANCE CO LTD - Appellant(s)
Versus
HEIRS
OF LEGAL DECEASED RAFIQBHAI MUSABHAI JUNEJA & 6 - Defendant(s)
=========================================================
Appearance
:
MS
LILU K BHAYA for
Appellant(s) : 1,
None for Defendant(s) : 1 - 6.
- for
Defendant(s) :
7,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 26/02/2010
ORAL
ORDER
Heard
learned advocate Ms. LK Bhaya on behalf of appellant insurance
company. Today, in first session, learned advocate Ms. Bhaya made a
mention to take up first appeal in second session because of having
some urgency. The permission was granted by this Court and papers
have been received from Registry. Therefore, present first appeal
is taken up for hearing.
Learned
advocate Ms. Bhaya appearing on behalf of appellant insurance
company challenging interim order passed by claims Tribunal,
Junagadh in MACP no. 335/2008 order below exh 6 dated 18/03/2009.
This being a fatal case under 140 application, claims Tribunal has
awarded Rs. 50,000/- with 9% interest in favour of claimant.
Learned
advocate Ms. Bhaya has submitted that admittedly accident has taken
place on 25/6/2008. Shri Tahirmiya Sajidmiya Kadri, respondent no.
6 driver of bus no. GJ-3-Y- 159 was having driving license to
drive Light Motor Vehicle and also make additional endorsement of
Heavy Goods Vehicle and Heavy Passenger Vehicle. The license was
valid for a period of 20/4/2003 to 19/4/2006, but accident occurred
on 25/6/2008. On that day, driver was not holding valid and
effective driving license. Therefore, insurance company can not be
held liable for a payment of compensation to claimant on the basis
of pattern decisions of Apex Court.
She
submitted that this contention though raised by appellant before
claims Tribunal, but same has not been examined and order has been
passed against driver, owner and insurance company jointly and
severally to pay amount of compensation to claimant. She also
submitted that contention specifically raised by appellant but same
has not been decided which require to be decided by claims Tribunal
while relying upon decision of Apex Court in case of Smt. Yallawwa
reported in 2007 ACJ 1934.
I
have considered submission made by learned advocate Ms. Bhaya and
perused order passed by claims Tribunal, Junagadh. The claims
Tribunal has come to conclusion that, whether on the date of
accident driver was possessing legal and valid license or not? It
is not necessary at this stage to be examined by claims Tribunal
while considering 140 application on the basis of No Fault
Liability.
After
considering submission made by learned advocate Ms. Bhaya, first
appeal is required to be admitted by this Court but it is not in the
interest of either parties. Otherwise, proceeding preferred by
claimant u/s 166 is to be held up. Therefore, according to my
opinion, if this appeal is disposed of by this Court without
expressing any opinion on merits with certain direction, then it
will meet end of justice between parties.
Therefore,
it is directed to appellant insurance company to deposit entire
awarded amounts together with costs and interest before claims
Tribunal, Junagadh within a period of one month from date of
receiving copy of present order.
After
realizing said amounts from appellant insurance company, it is
directed to claims Tribunal, Junagadh to pay 30% amount by A/c payee
cheque in name of Hamidaben Rafiqbhai Juneja after proper
verification. Rest of amount is to be invested in name of
respondent claimants with Nationalized Bank with cumulative interest
for a period of three years which would require periodical renewal
till 166 application is decided by claims Tribunal, Junagadh. The
claimant is not entitled any amount of interest from said FDR till
166 application is decided by claims Tribunal, Junagadh. The
claimants are directed not to withdraw 166 application and shall not
abandon proceeding. The claims Tribunal, Junagadh is further
directed to decide 166 application without influence by interim
order passed by claims Tribunal, Junagadh dated 18/3/2009 and 166
application is required to be decided independently on the basis of
evidence on record.
Therefore,
first appeal preferred by appellant insurance company is disposed of
by this Court without expressing any opinion on merits. Today, first
appeal is disposed of by this Court. Therefore, no order is
required to be passed on civil application. Accordingly, civil
application is disposed of.
(H.K.RATHOD,
J)
asma
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