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FA/100220/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1002 of 2009
With
CIVIL
APPLICATION No. 2935 of 2009
=========================================================
ICICI
LOMBARD GENERAL INSURANCE CO LTD - Appellant(s)
Versus
YUSUF
ALLARAKHA SAMA & 4 - Defendant(s)
=========================================================
Appearance
:
MS
MEGHA JANI for
Appellant(s) : 1,
None for Defendant(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 18/03/2009
ORAL
ORDER
Heard
learned Advocate Ms. Megha Jani for appellant insurance company.
By
way of this appeal, appellant Insurance Co. has challenged interim
award made by MACT Jungadh below Exh. 6 in MACP No. 586 of 2007
dated 21.11.2008 wherein, claims tribunal has awarded Rs.25000.00 on
the basis of No Fault Liability in favour of respondent claimant,
being injury case.
Learned
Advocate Mr. Megha Jani for appellant has raised contention that the
claims tribunal has committed gross error in not appreciating and
deciding number contentions raised by appellant before claims
tribunal were not examined by claims tribunal while examining matter
under sec. 140 of MV Act and awarded Rs.25000.00 in favour of
claimant without examining contentions raised by appellant insurance
co. She relied upon decision of apex court in Yallwwa (Smt.) &
Others versus National Insurance Company & Others reported in
2007 ACJ 1934 = 2007(6) SCC 657 and submitted before this Court that
it has been held by apex court that if any objection has been raised
by insurance company covered by section 149(2), then, claims
tribunal must have to decide and examine such objections even at the
stage of application under sec. 140 of MV Act. Apart from that,
application under sec. 166 of MV Act, 1988 filed by claimant is
pending before claims tribunal.
Therefore,
in view of these facts, admission of this appeal would be having no
meaning because it will have to wait upto decision in an application
under section 166 of MV Act, therefore, it is better to dispose of
this appeal without expressing any opinion on merits while directing
claims tribunal to examine application under section 166 of MV Act,
1988 and to examine and consider objections raised by insurance
company in accordance with law with a further direction to claims
tribunal not to permit claimant to withdraw application under
section 166 of MV Act and claimant cannot abandon such proceedings.
If this appeal is disposed of without expressing any opinion n
merits with such directions, it would met ends of justice between
the parties.
In
view of these facts, this appeal is disposed of without expressing
any opinion on merits. Appellant insurance company is directed to
deposit entire awarded amount together with costs and interest
before claims tribunal within one month from the date of receipt of
copy of this order. After realizing amounts from insurance company,
claims tribunal is directed to pay 30% amount to claimant Yusuf
Allarakha Sama by way of an account payee cheque drawn in his favour
and rest of the amount is ordered to be invested in any
nationalized bank for a period of three years, to be renewed from
time to time with cumulative interest , in the name of respondent
claimant but FDRs to remain in custody of Nazir of the Claims
Tribunal concerned and claimant will not be entitled to any interest
upon such FDRs till application under section 166 of MV Act, 1988 is
decided by claims tribunal in accordance with law. Claims Tribunal
is further directed not to permit withdrawal of application under
sec. 166 of MV Act and claimant shall not abandon proceedings of an
application under sec. 166 of MV Act, 1988 but shall have to get it
decided on merits by claims tribunal and claims tribunal shall
decide such application strictly in accordance with law after
examining objections raised by insurance company without being
influenced by award of claims tribunal under sec. 140 of MV Act, as
well as present order passed by this court.
With
these observations and directions, this appeal is disposed of
without expressing any opinion on merits.
Since
first appeal has been disposed of by this court, no order is
required to be passed on civil application, therefore, civil
application is also disposed of accordingly.
(H.K.
Rathod,J.)
Vyas
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