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FA/3378/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3378 of 2008
With
CIVIL
APPLICATION No. 9026 of 2008
=========================================================
ICICI
LOMBARD GENERAL INSURANCE CO LTD - Appellant(s)
Versus
CHAGANBHAI
TAPUBHAI JETHWA & 2 - Defendant(s)
=========================================================
Appearance
:
MS
MEGHA JANI for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 04/08/2008
ORAL
ORDER
1. Heard
learned advocate Ms.Megha Jani for the appellant ? ICICI Lombard
General Insurance Co.
2. In
the present appeal, the appellant ? ICICI Lombard General Insurance
Co. has challenged the award passed by MAC Tribunal (Main) Amreli in
MAC Petition No.68 of 2007 below Exh.6 dated 9.5.2008 whereby the
claims Tribunal has directed the appellant ? Insurance Co. to pay
Rs.50,000/- with running interest @ 7.5% from date of filing of the
application till the payment to the claimant.
3. Learned
advocate Ms.Megha Jani for the appellant ? Insurance Co. has raised
contention that the driver of the vehicle was not holding driving
licence. She further submitted that insurance policy does not covers
the risk of the passengers and that no additional premium is paid to
cover the risk of the passengers. She also submitted that risk of
deceased not covered as he was travelling as a gratutious passenger
in the goods vehicle and therefore, the appellant Insurance Co. not
liable to pay any amount of interim as well as final compensation to
the claimants. Therefore, the application is to be dismissed.
4. In
respect to contentions raised by appellant Insurance Co., the claims
Tribunal has relied upon the decision of the Full Bench in case of
United India Insurance Co. Ltd.
v. Kadviben Udabhai Rathwa reported in 2006 (2) GLH 106
wherein the Full Bench has observed that Insurance Co. is not
entitled to seek trial on merits or legal defence against the
claimant but, against owner only. Therefore, the claims Tribunal has
come to the conclusion that the Tribunal has not to decide at this
stage that due to whose fault or negligence, the accident has
occurred and it is a matter of recording evidence. Therefore, at this
stage, under Section 140 of the M.V.Act, the applicant cannot be
deprived from the interim measures. Hence, the Tribunal has passed an
award against the Insurance Co.
5. Recently,
the Apex Court has, in case of Yallwwa v. National Insurance Co. Ltd
and others, reported in 2007 ACJ 1934, observed that even in
application under Section 140 of the M.V.Act, if any objection is
raised by the Insurance Co. which is available under Section 149(2)
of the M.V.Act, the said objection must have to be examined by the
claims Tribunal. In this case, application under Section 166 of the
M.V.Act is filed by the claimant and that fact is not disputed by
learned advocate Mr.Jani. But she is having apprehension that after
getting the amount under Section 140 application, subsequently,
claimant may withdraw the application filed under Section 166 of the
M.V.Act. Ultimately, at that occasion, the Insurance Co. will be
without remedy. Therefore, just to have the solution in respect to
such type of matter and unnecessarily appeals are not to remain
pending before this Court, this Court is of the opinion that at this
stage, appeal filed by the Insurance Co. is to be disposed of without
expressing any opinion on merits and same will not come in the way
of Insurance Co. for taking the objection in main application u/s.166
of the M.V.Act before the claims Tribunal and the Tribunal shall not
consider this order any way against the Insurance Co. Meanwhile, the
Insurance Co. shall have to deposit the entire awarded amount as
directed by the Tribunal together with cost and interest and out that
amount, only 30% amount is to be given to the claimant and rest of
the amount is to be invested in any nationalized bank with cumulative
interest and periodical renewal till the application u/s 166 of the
M.V.Act is finally decided by the claims Tribunal and claimant is not
entitled to withdraw such application from the Tribunal.
6. Therefore,
in light of the above fact and to have solution in stead of
deciding the matter on legal aspect, which is at this stage not
necessary for the Court to go into all these questions, therefore,
this appeal is accordingly disposed of without examining the merits
of the matter and such disposal will not come in the way of Insurance
Co. before the claims Tribunal in raising all contentions against the
main application. The Insurance Co. is directed to deposit the entire
awarded amount together with cost and interest before the claims
Tribunal within a period of one month from date of receiving the copy
of this order. After realizing the amount, the claims Tribunal is
directed to pay 30% amount to the respondent claimant by account
payee cheque and rest of 70% amount be invested in any nationalized
bank 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 claims Tribunal shall
not permit the original applicant 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.
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.3378 of 2008 is dismissed, no order is necessitated in Civil Application No.9026 of 2008. Accordingly, Civil Application No.9026 of 2008 is disposed of.
(H.K.RATHOD,J.)
(vipul)
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