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FA/1189/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1189 of 2010
=========================================================
NATIONAL
INSURANCE COMPANY LTD - Appellant(s)
Versus
VISABHAI
BIJALBHAI DABHI & 3 - Respondent(s)
=========================================================
Appearance
:
MR
NAGESH C SOOD for
Appellant(s) : 1,
None for Respondent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
Date
: 03/09/2010
ORAL
ORDER
On
11th August 2010, the Court recorded the following order :
Learned
advocate Mr. NC Sood for the appellant – Insurance Company submitted
that he does not have a copy of exh. 86, which is referred to and
relied upon by the learned Tribunal in Para 18. He submitted that
the learned Tribunal has specifically mentioned that, ‘the Policy is
produced at exh. 29 as well as at exh. 81 which goes to show that it
is Act Policy and the opponent no. 2 has recovered Rs.40/-
towards basic premium’.
Learned
advocate for the appellant – Insurance Company submitted that
thereafter the learned Tribunal has recorded that;
The
learned advocate Shri V. P. Doshi, for the opponent no. 2, has
produced the terms and conditions of the Policy with D.E. List exh.
86, wherein on Page No. 164, Section II – Liability to Third Parties
reads as under:
Subject
to the limitation of liability as laid down in the schedule hereto
the Company will indemnify the insured in the event of an accident
caused by or arising out of the use of Motorcycle against all sums
which the insured shall become legally liable to pay in respect of:
i) death
or bodily injury to any person including persons conveyed in or on
the motorcycle provided such person is not carried for hire or
reward…
Learned
advocate for the appellant wants time to procure and produce a copy
of exh. 86. He further submitted that he has instructions to state
before the Court from his counterpart that exh. 86 was ‘Comprehensive
Policy’, which was produced before the learned Tribunal to enable the
learned Tribunal to appreciate that there is difference between the
‘Act Policy’ and the ‘Comprehensive Policy’.
He
submitted that he is conscious of the fact that in the event exh. 86
is found to be so, then the Insurance Company may be required to go
back to the learned Tribunal for getting the aforesaid finding
altered.
At
the request of learned advocate Mr. Sood, the matter is adjourned to
26th August 2010.
Today
Mr.Nagesh Sood, learned advocate for the appellant has placed on
record copies of the two policies to point out that as per the terms
and conditions, the policy relatable to the accident in question was
an ‘Act Policy’, while the Tribunal has wrongly referred to the
clause from an illustrative ‘Comprehensive Policy’.
In
these circumstances, learned advocate for the appellant seeks
permission to withdraw the Appeal at this stage, to enable the
appellant to move the Tribunal seeking necessary review/rectification
of the apparent error, subject to keeping the rights of the appellant
open in case of need.
Accordingly,
the appellant is permitted to withdraw the Appeal. The Appeal stands
disposed of as withdrawn in the circumstances without going into the
merits of the controversy.
Court
fees to be refunded to the appellant in accordance with rules.
(D.A.Mehta,
J.)
/moin
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