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FA/567/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 567 of 2010
=========================================================
NEW
INDIA ASSURANCE CO LTD, REGISTERED OFFICE AT 87, MAHATMA -
Appellant(s)
Versus
WIDOW
HAMSABEN INDRAVADAN PANCHAL & 3 - Defendant(s)
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Appearance
:
MR
SUNIL B PARIKH for
Appellant(s) : 1,
MR MTM HAKIM for Defendant(s) : 1, 3,
DS
AFF.NOT FILED (N) for Defendant(s) : 2,
4,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 13/04/2010
ORAL
ORDER
Present
appeal has been preferred against the interim award passed by the
Motor Accident Claims Tribunal (Aux.) Vadodara dated 27.10.2009 in
M.A.C.P. No. 304 of 2006. The impugned order has been passed in
application under Section 140 of the Motor Vehicle Act whereby the
learned Tribunal has awarded Rs.50,000/- in view of the no
fault liability Clause.
Mr.MTM
Hakim, learned advocate for the defendants, has entered appearance
for Opponent nos. 1, 2 and 3 i.e. the widow, the daughter and the
son of the deceased.
In
view of the contentions raised in the application, it is appropriate
and necessary to hear and decide the same finally at this stage.
Hence, admit.
Mr.MTM
Hakim, learned advocate for the Orig.defendants, waives service of
notice of admission. So far as the Defendant No.4 is concerned, Mr.
Sunil B. Parikh, learned advocate for the appellant submitted that
the process could not be served qua the Defendant no.4. The
appellant has submitted that the interest of Opponent No.4 would not
be adversely affected if the relief as prayed for by the Appellant
in present appeal is granted. Considering the order, which is
proposed to be passed, the appellant appears to be right in his
submission. Hence, the appeal is, with the consent of learned
advocate for both the sides who have entered appearance is taken-up
for final decision.
It
is the case of the appellant that the appellant had raised
substantial contention and defence before the learned Tribunal even
at the time of hearing of the application under Section 140 of the
Motor Vehicle Act. So far as the the contention raised by the
appellant raising dispute about the involvement of the vehicle
(truck) bearing Registration No. RJ-07-G-3039 in the accident (in
which the husband of present Defendant no.1 has expired), it has to
be noted that the appellant appears to have raised contention before
the Tribunal that the vehicle insured by it was not involved in the
accident in question. Differently put, the Appellant-Insurance
Company had raised a contention before the learned Tribunal that it
was not the insurer of the truck allegedly involved in the
accident. The appellant Insurance Company also appears to have
raised a contention that the claim petition was fraudulent and was
filed with malafide intention of extracting money from Insurance
Company.
The
appellant has alleged that though the contention was raised the
learned Tribunal has proceeded to pass the impugned order without
addressing the said contention. Mr.Parikh has submitted that the
specific contentions raised by the Appellant-Insurance Company have
not been dealt with by the learned Tribunal before passing the
impugned award and the statutory defence raised by the Insurance
Company have not been taken into account. It is submitted that the
impugned award is therefore, bad in law and contrary to the law laid
down by the Hon’ble Apex Court in case of Yallwwa & Ors. Versus.
National Insurance Company Ltd (2007 ACJ 1934) wherein the Hon’ble
Apex Court has held that the statutory defence and the contentions
raised by the Insurance Company are required to be considered and
decided by the learned Tribunal at the time of deciding even an
application under Section 140 of the Act.
In
light of the judgment of Hon’ble Apex Court in Yallwwa & Ors.
Versus. National Insurance Company Ltd (2007 ACJ 1934) , the legal
position with regard to the application and claim under Section 140
of the Act and as regards the requirement of considering the defence
and objections of the Insurance Company is well settled and the
learned Tribunal was required to address the defence raised by the
opponent even while deciding the application under Section 140 of
the Motor Vehicle Act, however, learned Tribunal has while passing
the impugned order, not properly dealt with the defence and the
contentions raised by the appellant.
The
appellant is, in present case, justified in raising the contention
against the impugned award since the defence raised by the appellant
has not been addressed. Mr. MTM Hakim, learned advocate for the
defendants have opposed the request of the appellant, however,
he has not been able to oppose the preposition urged by the
appellant.
Having
regard to the the facts of the case and after examining the award,
it emerges that the objection raised by the appellant against the
impugned order, deserves to be accepted.
Hence,
on this limited ground viz that the statutory defence and the
contentions raised by the Insurance Company have not been properly
addressed while passing the order in application under Section 140
of the Act though they should have been dealt with by the learned
Tribunal in view of the judgment of the Hon’ble Apex Court reported
in 2007 ACJ 1934, the appeal deserves to be allowed.
If,
however, appeal is admitted and retained for final hearing then it
will remain pending at least until the application under Section
166 of the Act is decided or it may result into delaying the
proceedings of the application under Section 166 of the Act.
Hence,
it appears that it would be in the interest of both the contesting
parties that present appeal may be disposed of at this stage in
view of the judgment of the Apex Court. Without going into the
merits of other contentions but by requiring the Insurance Company
to deposit the entire award amount, the cost and interest with the
learned Tribunal.
Mr.
Sunil B. Parikh, learned advocate for the appellant has submitted
that pursuant to the order impugned in present appeal, the appellant
has already deposited a sum of Rs. 68,375/- .
Since
the amount as per the impugned order has already been deposited, it
is directed, while setting aside the impugned order at this stage,
that :
(1)
The amount deposited by the appellant shall be invested by the
learned Tribunal in a fixed deposit initially for a period of 3
(three) years.
(2)The
interest shall not be paid to the claimants but shall be
accumulated.
(3)Opponents
will not be permitted to withdraw the deposited amount or a part
thereof and/or to raise any loan or create any charge against the
said F.D. in any manner whatsoever.
(4)
The learned Tribunal shall proceed to decide the main petition under
Section 166 of the Motor Vehicle Act expeditiously and shall
endeavour to decide the said application finally within period of 18
months from the receipt copy of writ of this order.
(5)The
interim award shall be subject to the final directions.
(6)The
learned Tribunal shall decide the main petition under Section 166 of
the Act without being influenced by the impugned order passed under
Section 140 of the Act and/or this order and particularly the fact
that the impugned order has been set aside at this stage.
(7)Learned
Tribunal shall decided the main petition independently on the basis
of the evidence, which may be brought on record by contesting
parties. If ultimately the claim petition is dismissed or if the
Appellant-Insurance Company is exonerated from the liability, the
amount deposited by the Insurance Company shall be refunded to the
appellant with accumulated interest.
This
order has been passed without entering into merits of the matter and
without prejudice to the rights and contention of both the sides.
(K.M.THAKER,J.)
Girish
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