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FA/4630/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4630 of 2008
With
CIVIL
APPLICATION No. 11104 of 2008
In
FIRST APPEAL No. 4630 of 2008
=========================================================
NEW
INDIA ASSURANCE CO LTD - Appellant(s)
Versus
SAJIDKHAN
YAKUBKHAN PATHAN & 1 - Defendant(s)
=========================================================
Appearance
:
MR
SHALIN N MEHTA for
Appellant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 19/09/2008
ORAL
ORDER
Heard
learned advocate Mr. Shalin Mehta appearing on behalf of appellant ?
Insurance Company.
The
appellant has challenged the interim award passed by Motor Accident
Claims Petition No.1547 of 2005 below Exh.7. The Claims Tribunal has
passed the interim award on 30th June 2007 awarding
Rs.25,000/- amount in favour of respondent claimant with 7.5%
interest.
Learned
advocate Mr. Shalin Mehta raised contention before this Court that
Claims Tribunal has committed gross error not considering the
contentions raised by Insurance Company that claimant had found
travelling in goods carriage which was prohibited by the terms and
conditions of the Insurance Policy of the goods carriage. Therefore,
it amounts to breach of the terms and conditions of Insurance Policy
and Insurance company is not liable to indemnify the insured. He also
raised contention that claimant has failed to prove that he was an
employee of the insured. On account of such failure, the risk of any
other person travelling in a goods carried was not required to be
covered under Section 147 of the M.V. Act and it cannot consider to
be a third party. He submitted that these are the contentions raised
by the Insurance Company before the Claims Tribunal, but, same has
not been examined by the Claims Tribunal and awarded Rs.25,000/- on
the basis of ‘No Fault Liability’ in favour of respondent claimant.
Learned
advocate Mr. Mehta relying upon the recent decision of Apex Court in
case of Yallwwa (Smt.) v. National Insurance Company Limited
reported in (2007) 6 SCC 657 submitted that it
is a duty of Claims Tribunal to decide such contention which covered
by Section 149(2) of MV Act. Therefore, according to him, Claims
Tribunal has committed gross error.
I
have considered the submissions made by learned advocate Mr. Mehta
and also perused the interim award passed by Claims Tribunal Exh.7.
The Claims Tribunal has not examined the contentions which have been
raised by Insurance Company and only satisfied by considering the
ingredients of Section 140/142 of the MV Act, therefore, Claims
Tribunal has awarded the amount Rs.25,000/- in favour of respondent
claimant.
Therefore,
according to my opinion, on this contention, if, this appeal is
admitted by this Court, then, application filed by the claimant under
Section 166 remains pending before the Claims Tribunal. Therefore, so
long, the application under Section 166 is not decided by the Claims
Tribunal, this appeal will remain pending before this Court
unnecessarily.
Therefore,
in view of aforesaid circumstances, if, this appeal is disposed of by
this Court without expressing any opinion on merits and with some
directions to the Claims Tribunal, which will meet the end of justice
between the parties.
In
view of above observations and directions, the present First Appeal
as well as Civil Application are disposed of by this Court without
expressing any opinion on merits with a direction to the Insurance
Company to deposit the awarded amount together with cost and interest
before the Claims Tribunal within a period of one month from the date
of receiving the copy of the said order.
Amount,
if any, deposited by the insurance company in the registry of this
Court be transmitted to the Claims Tribunal immediately.
After
realising the amount from Insurance Company together with accrued
interest and costs, and the amount, if any, transmitted by the
registry of this Court, it is directed to Tribunal concerned to pay
30% thereof to the respondent claimant ? Sajidkhan Yakubkhan
Pathan by account payee cheque and rest of the amount be invested in
any Nationalized Bank in the name of claimant initially for a period
of three years with cumulative interest till the application under
Section 166 of the MV Act is finally decided by the Claims Tribunal.
Said FDR, though in the name of the claimant, shall remain with Nazir
of the Tribunal concerned till the application under Section 166 of
the MV Act is finally decided by the Claims Tribunal. The claimant is
entitled for interest upon the said FDR till the application under
Section 166 of the MV Act is finally decided by the Claims Tribunal.
The
respondent claimant shall not withdraw the application filed under
Section 166 of the MV Act and Claims Tribunal shall not permit the
claimant to withdraw the same. The claimant shall not abandon the
proceedings of Section 166 of the MV Act.
The
Claims Tribunal shall have to examine the application under Section
166 of the MV Act independently on the basis of the records without
influence by interim award passed by Claims Tribunal under Section
140 of the MV Act.
[H.K.
RATHOD, J.]
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