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CA/8117/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR ORDERS No. 8117 of 2008
In
FIRST
APPEAL No. 4825 of 2007
=====================================================
MANISHABEN
RIKESHBHAI PATEL & 2 - Petitioner(s)
Versus
NATIONAL
INSURANCE CO. LTD & 2 - Respondent(s)
=====================================================
Appearance
:
MR.B K.RAJ for Petitioner(s) :
1 - 3.
MR MEHUL SHARAD SHAH for Respondent(s) : 1,
None for
Respondent(s) : 2 -
3.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 17/07/2008
ORAL
ORDER
1. Heard
the learned advocate Mr BK Raj for the applicant and learned advocate
Mr Mehul Sharad Shah learned advocate appearing on behalf of the
National Insurance Company Limited.
2. In
this application, the claimants have made a prayer to permit the
applicants for withdrawal of 40% of the total amount deposited by
respondent no. 1 and to enjoy the interest during the pendency of
this appeal, so that the applicants who have no source of income
since the death of husband of applicant no. 1 and father of
applicants no. 2 and 3 may survive during the pendency of this appeal
being First Appeal No. 4825/2007, as at present their position is
very poor and helpless.
3. Learned
advocate Mr. Mehul Sharad Shah raising contention that deceased was
pillion rider is not a third party covered by the insurance policy as
additional premium was not paid by the owner to the Insurance
Company. Therefore, according to him, the risk of pillion rider is
not covered under the Insurance Policy and pillion rider is not a
third party and any person under sec. 147 of Motor Vehicles Act is
only third party, no other party, who entitled the compensation from
the Insurance Company. He relied upon the decision of the Apex Court
in the case of United India Insurance Co. Ltd., Shimla V/s Tilak
Singh & Ors., reported in (2006)4 SCC p. 404 and
relying upon decision of Apex Court in the case of Oriental
Insurance Co. Ltd. vs. Sudhakaran K.V. & Ors., reported in
2008(8) Scale p. 402. Therefore, according to him, claimants
are not entitled to any amount which can be disbursed in their
favour.
4. I
have considered submissions made by the learned advocate Mr. Mehul
Sharad Shah and I have also prima-facie considered the observations
as referred by the learned advocate Mr. Mehul Sharad Shah from the
award passed by the Claims Tribunal. The facts that on 24th
August, 2002, at about 8.45pm on the road which was going from
Kapurai Bridge towards Tarsali. On the day of accident deceased was
pillion rider of motorcycle No. GJ-6-AG-8535 and it was driven by
Opponent no. 1 and both were coming back after completion of
religious prayer at ?SJandh Hanuman?? towards Vadodara. And when
at about 8.45pm they were passing at the Kapurai Bridge at that time
motorcycle was slipped in a dig, resulting accident was occurred and
deceased fell on the road and had sustained the head injury.
Ultimately, he was scummed to injury. The age of deceased was 40
years and was working as a Supervisor with the Riddhi Associate
Builders and Developers. The age of widow was 38 years, minor Jay
Rikeshbhai Patel was 13 years and minor Krupaben Rikeshbhai Patel was
10 years, meaning thereby, both are minor and widow is about 38
years age on the day on which the claim petition was filed.
5. The
Insurance Company now raising all technical and legal contentions
before this Court as well as before the Tribunal that pillion rider
is not covered because he is not a third party. Riding person being
an owner is not covered if additional premium is not made by the
owner. Ultimately, reality is that any person suggests only third
party , meaning thereby, that if vehicle has been dashed with other
vehicle then question of third party arise and if vehicle is turned
turtled or slipped then it is not considered a third party. Apart
from this legal aspect raised by learned advocate Mr. Mehul Sharad
Shah, for that appeal is admitted and this Court will examine it as
and when the matter is examined finally but at this juncture this
Court has to consider in light of the legal back ground whether
claimants are entitled to have any amount from the compensation
deposited by the Insurance Company. Learned advocate Mr Mehul Sharad
Shah appearing on behalf of the respondent ? Insurance Company
submitted that, in all, total amount deposited by the Insurance
Company is Rs. 6,72,350/-. Rs. 50,000/- which was paid to the
claimants on the basis of No Fault Liability under sec. 140 of the
Motor Vehicles Act, has been received by the claimants or not,
learned advocate Mr. Raj is not having clear instructions. Apart from
that, a husband of Manishaben died in the said accident, who was
aged about 40 years leaving behind him two minor son and daughter and
one widow. How to maintain their family in absence of amount of
compensation. Motor Vehicles Act is beneficial law, meaning thereby,
that its beneficiary is victim, who is, really sufferer. The object
of the Act is not virtually kept in mind by Insurance Company having
monopoly of compulsory insurance to be enjoyed by the Insurance
Company. Ultimately, this Court has to consider the future of these
claimants who are without means. How to maintain their family and who
will give the amount to them for maintaining the family and who may
have to help them. As per the averments made in this application,
there is no source of income to the family, therefore, in this back
ground, this Court is passing the order keeping open all legal
contentions of the Insurance Company open which can be taken into
account at the time of final hearing. Therefore, it is directed to
the Tribunal to disburse 30% amount from deposited amount with
accruing interest in favour of Manishaben Rikeshbhai Patel by A/c
payee cheque and rest of 70% amount is to be invested in a
Nationalized Bank with cumulative interest by periodical renewal
which will remain continue till the appeal is finally decided by this
Court. Original F.D.R. in the name of the claimants must be remained
with the Nazir of the concerned Tribunal and claimants are not
entitled any amount of interest from the said F.D.R. till the appeal
is finally decided by this Court. This will serve the purpose
because, in 70% amount which invested with cumulative interest
normally filled up the gap of 30% amount which was disbursed to
claimants when Appeal will be taken for final hearing, so there may
not be loss caused to Insurance Company. It is also necessary to note
that in case if Appeal is allowed, then also this court can direct
the owner to pay short fall amounts 30% with interest to the
Insurance Company. So, ultimately interest of the company in both way
full protected and remain in safe-guard.
6. Accordingly,
present Civil Application is disposed.
(H.K.
RATHOD, J.)
mandora/
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