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FA/3562/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3562 of 2008
With
CIVIL
APPLICATION No. 9294 of 2008
=========================================================
CHOLAMANDALAM
MS GENERAL INSURANCE CO.LTD - Appellant(s)
Versus
DHANKIBEN
KATLALBHAI RATHWA & 2 - Defendant(s)
=========================================================
Appearance
:
MS
LILU K BHAYA for
Appellant(s) : 1,
None
for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 07/08/2008
ORAL
ORDER
1. Heard
learned advocate Ms.Lilu K. Bhaya for the appellant ? CHOLAMANDALAM
MS GENERAL INSURANCE CO.LTD.
2. In
the present appeal, the appellant ? Insurance Co. has challenged
the award passed by MAC Tribunal,Baroda in MAC Petition No.200 of
2007 below Exh.6 dated 27.11.2007 whereby the claims Tribunal has
directed the appellant ? Insurance Co. to pay Rs.25,000/- with
running interest @ 7.5% from date of filing of the application till
the payment to the claimant.
2. The
claims Tribunal has rejected the objection raised by the Insurance
Co. at the stage of 140 application of M.V.Act.
3. Learned
advocate Ms.L.K.Bhaya has raised contention that specific reply has
been filed by the appellant to the application u/s. 140 of the
M.V.Act and defence has been raised that insured vehicle
No.GH-6-Y-8277 is a goods vehicle and at the time of accident and at
the time of accident, there were other passengers travelling in the
said vehicle and therefore, they were gratuitous passengers and the
risk of such passengers was not covered under the policy. According
to her submission, respondent No.1 was never a labourer nor she was
travelling in the vehicle as owner of the goods. According to her,
even RTO Rules do not allow to travel in a goods vehicles by paying
fare or gratuitously. According to her, as per the RC Book and policy
of the vehicle, the carrying capacity of the vehicle is only one
person i.e. Driver of the vehicle and no other person is allowed to
travel and therefore, it amounts to breach of condition of insurance
policy and thus, the Insurance Co. cannot be held liable to satisfy
the award. She also submitted that driver of the vehicle was not
holding the valid and effective licence to drive the vehicle at the
time of accident. The insured vehicle is an auto-rickshaw which was
exclusively meant for carrying the goods and respondent No.2 who was
driving the insured vehicle at the time of accident was holding
licence to drive light motor vehicle which was valid from 21.6.2003
to 31.5.2022 but, no specific endorsement on the driving licence to
drive a transport vehicle as well as a goods vehicle. Therefore, she
submitted that these are the contentions and objections raised by the
Insurance Co., which have not been examined by the claims Tribunal
and rejected the contentions raised by Insurance Co. Therefore,
present appeal is filed.
4. I
have considered the contentions raised by learned advocate Ms.Lilu K.
Bhaya and also perused the award passed by the claims Tribunal under
Section 140 of the M.V.Act. The claims Tribunal has considered
certain decisions of Apex Court including the recent decision in case
of Yallwwa v. National Insurance Co. Ltd and others, reported in
2007 ACJ 1934. However, in Para.14 of the award, the claims Tribunal
has only considered that ingredients of Section 140 of the M.V.Act,
‘no fault liability’ is satisfied by the claimants and objection
raised by the Insurance Co. is subject to evidence and should take
the disputes and it is their liability to prove the said disputes and
it can be decided, when full fledge trial begins at this juncture
under the no fault liability scheme, the Insurance Co. is held
liable.
5. An
application under Section 166 of the M.V.Act is filed by the
claimants which is pending. Therefore, in light of this background,
if this Court admits the matter, then this matter will remain pending
till the main application u/s.166 is decided by the claims Tribunal.
Whatever amount is awarded under this award, is subject to final
outcome of application u/s. 166 of the M.V.Act. Therefore, according
to my opinion, if this appeal is disposed of at this stage, without
examining the merits of the matter and direction is given to
Insurance Co. to pay 30% amount to the respondents claimants by
account payee cheque and rest of 70% amount is directed to invest in
any nationalized bank with cumulative interest and remain as it is
till the main application is decided by the Tribunal, that will meet
the ends of justice.
6. Therefore,
in light of this, present appeal is disposed of without expressing
any opinion on merits and the Insurance Co. is directed to deposit
the entire awarded amount together with cost and interest with the
claims Tribunal within a period one month from the date of receiving
the copy of this order. After realizing the amount, the claims
Tribunal is directed to pay 30% amount to the respondents claimants
by account payee cheque and rest of 70% amount be invested in any
nationalized bank in the name of respondents claimants initially for
a period of 5 years with cumulative interest and with periodical
renewal till the application under Section 166 of the M.V.Act is
decided by the claims Tribunal. The respondents claimants are not
entitled the amount of interest upon said FDRs and FDRs shall remain
with the Nazar of the claims Tribunal. The claims Tribunal shall have
to decide the application u/s 166 of the M.V.Act independently
without being influenced by this order. The claims Tribunal shall
not permit the claimants to withdraw the application under Section
166 of the M.V.Act. The claims Tribunal shall have to decide the
application u/s 166 of the M.V.Act independently without being
influenced by this order. Accordingly, present appeal is dismissed
without expressing any opinion on merits.
7. The
amount deposited with this Court for the purpose of appeal shall be
transmitted to the Tribunal concerned.
8. As the First Appeal No.3562 of 2008 is dismissed, no order is necessitated in Civil Application No.9294 of 2008. Accordingly, Civil Application No.9294 of 2008 is disposed of.
(H.K.RATHOD,J.)
(vipul)
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