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FA/1950/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1950 of 2010
=========================================
NEW
INDIA ASSURANCE CO LTD - Appellant(s)
Versus
SHAKUNTALABEN
NATWARBHAI TAILOR & 2 - Defendant(s)
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Appearance :
MR
SUNIL B PARIKH for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 21/07/2010
ORAL
ORDER
1. Heard learned
advocate Mr.Sunil B.Parikh for appellant Insurance Co.
2. In this appeal, the
appellant Insurance Co. has challenged order passed by claims
Tribunal, Vadodara in MACP Nos.594 of 2007 vide Exh.6 under Section
140 of the MV Act. In this appeal, claims Tribunal has awarded
Rs.25,000/- as compensation under ‘no fault liability’ by order dated
03.05.2010.
3. The claimants have
filed application u/s.166 of the MV Act in respect of injury
sustained in an accident. During pendency of application u/s.166 of
the MV Act, claimants filed application u/s.140 of the MV Act
claiming Rs.25,000/- under ‘no fault liability’.
4. Learned advocate
Mr.Parikh submitted that though statutory defence is raised before
claims Tribunal by appellant Insurance Co., it has not been
properly examined by claims Tribunal because of pendency of
application u/s.166 of the MV Act and it has been observed that it
can be examined at the time of deciding application u/s.166 of the
MV Act. The learned Advocate for the appellant Insurance Company
relied upon a decision of Apex Court in case of Yallwwa
& Ors. v. National Insurance Co. Ltd. & Anr. reported in 2007
ACJ 1934.
5. Having considered
the submissions made by learned advocate for the appellant Insurance
Company and also on perusing the interim order passed by claims
Tribunal, vide Exh.6 dated 03.05.2010, it is noticed that the claims
Tribunal has heard the learned Advocate for the Insurance Company,
considered FIR and Panchnama, MLC Certificate and disability
certificate and particulars of insurance and also the fact that
ingredients of Sections 140 and 142 of the MV Act have been satisfied
by claimant, without considering objection raised by Insurance Co.,
awarded benefit of Rs.25,000/- in favour of claimants.
6. The fact remains
that whatever statutory defence or legal objections are available to
Insurance Co., remain to be examined by claims Tribunal while
deciding application u/s.166 of the MV Act on merits. Therefore, at
this stage, it is not proper to admit this appeal and keep it pending
till application u/s.166 of the MV Act is decided by claims
Tribunal, Vadodara. Therefore, in the opinion of this Court, if this
appeal is disposed of without expressing any opinion on merits with a
direction to Insurance Co. to deposit entire awarded amount together
with cost and interest before claims Tribunal, Vadodara and out of
that, some amount is allowed to be disbursed to the claimant and rest
of the amount is ordered to be invested with cumulative interest, it
will meet the ends of justice.
7. In light of the
aforesaid observations, the claims Tribunal is directed to decide the
application u/s.166 of the MV Act independently on the basis of
evidence on record and in accordance with law and without being
influenced by interim order dated 03.05.2010 passed under Section 140
of the MV Act as early as possible.
8. Meanwhile, the
appellant Insurance Co. is directed to deposit the awarded amount
together with cost and interest before claims Tribunal within a
period of two weeks from the date of receipt of this order.
9. Once the said
amount is deposited by the Insurance Co., claims Tribunal is
directed to invest the amount in a Fixed Deposit in the name of Nazir
of claims Tribunal in any nationalized bank, initially for a period
of three years, subject to periodical renewals, till application
u/s.166 of the MV Act is decided by claims Tribunal. The claims
Tribunal shall not permit withdrawal of application u/s.166 of the MV
Act and claimant shall not abandon the proceedings. It is made
clear that if ultimately Insurance Co. is exonerated by claims
Tribunal, Vadodara, then amounts lying with claims Tribunal shall
have to be refunded to Insurance Co. by account payee cheque.
10. In view of above
observations and directions, present appeal is disposed of without
expressing any opinion on merits.
(Ravi R.Tripathi, J.)
*Shitole
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