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FA/441120/2008 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4411 of 2008
With
CIVIL
APPLICATION No. 10620 of 2008
In
FIRST APPEAL No. 4411 of 2008
=========================================================
ORIENTAL
INSURANCE CO - Appellant(s)
Versus
BHARATIBEN
HARISHBHAI KONKNI & 4 - Defendant(s)
=========================================================
Appearance
:
MR
GC MAZMUDAR for
Appellant(s):1,MR HG MAZMUDAR for Appellant(s):1,
None for
Defendant(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/12/2008
ORAL
ORDER
1. Heard
learned advocate Mr. H.G. Mazmudar appearing on behalf of appellant
Oriental Insurance Company.
2. The
appellant insurance company has challenged award passed by
Motor Accident Claims Tribunal, Vyara, District Surat in Motor
Accident Claim Petition No.1231 of 2003 dated 7th
September 2007. The claims tribunal has awarded Rs.2,97,500/- with
9% interest in favour of respondent claimants.
3. Learned
advocate Mr. Mazmudar submitted that claims tribunal has committed
gross error in passing award in favour of respondent claimants. He
submitted that deceased was a driver of motorcycle, not a pillion
rider, but, throughout, in entire case, claims tribunal has
considered deceased as a pillion rider and accordingly, compensation
has been awarded in favour of respondent claimants. He also raised
contention that before claims tribunal, nowhere, advocate of
insurance company as well as in written statement, mentioned that
insurance company is having a limited liability of Rs.1 lakh. He
submitted that claims tribunal has not properly applied mind while
dealing with this matter and hurriedly decided this matter without
considering records produced by respective parties. He also
submitted that due to negligence of driver Harishbhai Konkni, who
died in accident, accident occurred. Therefore, according to learned
advocate Mr. Mazmudar, insurance company is not liable to pay any
amount of compensation to claimant, because, driver of motorcycle is
involved in said accident and because of his negligence, accident
occurred.
4. I
have considered submissions made by learned advocate Mr. Mazmudar
and I have also perused award passed by claims tribunal.
5. According
to claims tribunal, deceased Harishbhai Jayantibhai Konkni was
travelling on 27th June 2003 with Shri Vinodbhai Ramanbhai
Konkni on motorcycle No.GJ-5-F-8697 as a pillion rider. At that time,
at Valod-Buhari road in the jurisdiction of Golan village while
driving motorcycle slowly and steadily, one vehicle came rashly and
negligently, thereby his motorcycle is slept and went off the road
and whereby deceased got injuries and died at Government Hospital,
valod due to injuries. The criminal complaint vide CR-I No.32 of 2003
was registered at Valod Police Station.
6. The
claimants filed an application under Section 163A of M.V. Act
claiming Rs.4,77,834/- on the basis of Rs.4000/- income of deceased
and age 25 years. The wife of deceased minor daughter and parents
have filed such application. The insurance policy covers period from
11th October 2002 to 10th October 2003. Learned
advocate Mr. K.P. Asarvawala appearing on behalf of insurance company
filed reply Exh.16 raising number of contentions. In written
statement, as referred in Para 4 by claims tribunal, it is also
contended that insurance company has limited liability of Rs.1 lakh.
7. Learned
advocate Mr. Mazmudar submitted that no such averments made in
written statement by insurance company, even though, claims tribunal
by mistake referring such statement in written statement of insurance
company, so, there is a basic error committed by claims tribunal. He
submitted that claims tribunal has come to conclusion that deceased
was a pillion rider and driver of motorcycle was Vinodbhai Ramanbhai
Konkni. On that basis, compensation has been worked out and awarded
in favour of respondent claimants. He also pointed out the
observations made by claims tribunal in Para 17 which is quoted as
under :
17. Ld.
Adv. Shri Asarvawala contended that the policy is limited for Rs.1
lakh only and alternatively argument, he has stated that the
insurance company is liable for Rs.1 lakh only.
8. Learned
advocate Mr. Mazmudar submitted that no such submission was made by
learned advocate Mr. Asarvawala on behalf of insurance company and
there is no provision in insurance policy which is required to be
paid by insurance company as a limited liability of Rs.1 lakh to
claimant. Therefore, according to him, a vital issue has been
misunderstood by claims tribunal, therefore, this matter is required
to be remanded back to claims tribunal concerned.
9. There
are various contentions which have been raised by learned advocate
Mr. Mazmudar before this Court. Therefore, this Court has called the
records and proceedings from claims tribunal in respect of MACP
No.1231 of 2003. The written statement filed by insurance company
Exh.16, where, learned advocate Mr. Mazmudar submitted that nowhere,
it is mentioned by insurance company that insurance company is liable
limited upto Rs.1 lakh. This Court has also perused written
statement from original record and this Court has also not able to
find out such contention or submission from insurance company in
written statement dated 30th June 2007. If that be so,
then, there is no need for advocate Mr. Asarvawala to make such
submission when insurance policy was on record. From insurance policy
of motorcycle which was a package policy and in that policy, accident
of driver covered under Sec.- iii for owner/driver (CSI) Rs.1 lakh.
10. In
light of aforesaid discrepancies and as contentions raised by learned
advocate Mr. Mazmudar, in such circumstances, it is open for
insurance company to approach claims tribunal concerned by filing
necessary application for review as per decision of this Court in
Manu-GJ-1713-2006 and as per decision reported in 2008
ACJ 1238 (Calcutta High Court)
and 2008 ACJ 1455 (DB) (Guj.) and to correct error
which has been pointed out by advocate of insurance company.
11. After
receiving application from insurance company, it is directed to
claims tribunal concerned to call the respondents claimants after
issuing notices to them and then to pass appropriate order on such
application after giving reasonable opportunity of hearing to both
the parties in accordance with law within a period of three months
from the date of receiving such application from insurance company.
12. In
light of aforesaid observations and directions, present appeal is
disposed of without expressing any opinion on merits.
13. It
is made clear that if any adverse order will be passed by claims
tribunal against insurance company, then, it is open for insurance
company to challenge the same before higher forum.
14. It
is also made clear that in case, if, insurance company suggests to
frame any issue, accordingly, issues may be framed in accordance with
law and same may be considered after hearing other side in
accordance with law.
15. Registry
is directed to send back records and proceedings to claims tribunal
concerned immediately without any delay.
16. When
first appeal is disposed of without expressing any opinion on
merits, no order is required to be passed in civil application.
Hence, civil application is also disposed of.
17. The
amount, if any, deposited by appellant before registry of this court,
be transmitted to claims tribunal concerned immediately.
[H.K.
RATHOD, J.]
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