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CA/5711/2008 4/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR STAY No. 5711 of 2008
In
FIRST
APPEAL No. 2343 of 2008
=========================================================
ORIENTAL
INSURANCE COMPANY LTDTHROUGH AUTHORISE SIGNATORY - Applicant(s)
Versus
MITALBEN
KETANBHAI PANCHASRA & 3 - Opponent(s)
=========================================================
Appearance
:
MR
MAULIK J SHELAT for Applicant(s) :
1,
None for Opponent(s) : 1,
MR BHARAT V. SHAH for Opponent(s)
: 1.2.1, 1.2.2,1.2.3
MR
MUKESH PATEL AGP for Opponent (s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 15/07/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1. By
filing instant application, the applicant/ appellant- Oriental
Insurance Company Limited, has prayed to stay execution,
implementation and operation of the judgment and award dated 4.7.2007
rendered in MACP No.52 of 2004 by the Motor Accident Claims Tribunal
(Main) Jamnagar by which the claim petition filed by the
opponents/respondent Nos.1/1 to 1/3 (‘the claimants’ for short) being
heirs and legal representatives of deceased Ketanbhai Ratilal
Panchasra who has died in a road accident which had taken place on
26.9.2003, to recover total compensation of Rs.30,00,000/- from the
applicant as well as respondent Nos.2, 3 and 4, has been partly
allowed and thereby the claimants have been awarded Rs.20,21,200/-
with interest at the rate of 10% per annum from the date of filing of
the petition and proportionate costs of the petition and accordingly
the applicant and respondent Nos.2, 3 and 4 are ordered to pay
jointly and severally the said amount to the claimants.
2. The
claimants have filed the MACP No.52 of 2004 claiming total
compensation of Rs.30 lakhs against the owners as well as insurers of
both the vehicles involved in the accident for the untimely demise
of Ketanbhai Panchasra in a road accident which had taken place on
26.9.2003 when the deceased was working as a PSI and was going to
Junagadh from Jamkandorna in a jeep bearing registration No.
GJ-3-G-478 owned by the District Superintendent of Police (Government
of Gujarat) for the purpose of investigation. The said jeep was
driven by its driver who was under the employment of the District
Superintendent of Police (Government of Gujarat). At that time one
truck bearing registration No. GTX 2487 owned by respondent No.2,
Bhupatbhai Rahubha Zala and insured with opponent No.3 – United India
Insurance Company came from the opposite direction driving it in a
rash and negligent manner and with excessive speed and as a result
thereof, both the vehicles collided each other (head on collision)
and in the said accident Ketanbhai died. The Tribunal has, on
adjudication, apportioned the negligence of the drivers of both the
vehicles involved in the accident in equal proportion i.e., 50:50 and
thereafter quantified the dependency benefits and awarded the total
competition of Rs.20,21,200/- together with interest at the rate of
10% per annum from the date of filing of the petition and
proportionate costs of the claim petition.
3. By
filing the appeal, the applicant/appellant-insurance company has
challenged the judgment and award on three counts:
(i) the
driver of the jeep bearing registration No. GJ-3-G-478 is held
negligent to the extent of 50% which is erroneous and against the
evidence on record;
(ii) quantification
of compensation is on higher side; and
(iii) the
applicant/appellant-insurance company is not liable to pay
compensation because the deceased was occupying the jeep owned by the
District Superintendent of Police (Government of Gujarat) and as per
the terms and conditions of the insurance policy, risk of occupant is
not covered.
4. This
Court vide order dated 16.5.2008 has admitted the First Appeal
No.2343 of 2008 whereas in this Civil Application Rule has been
issued and ad-interim relief in terms of para 3 (A) has been granted
as the amount of Rs.14,31,648/- has been deposited by the
applicant-Oriental Insurance Company Limited and another insurance
company-The United India Insurance Company Limited has also deposited
Rs.13 lakhs and odd before the Tribunal. Rs.25,000/- deposited before
this Court was also ordered to be transmitted to the concerned
Tribunal forthwith.
5.
Mr. Shelat, learned advocate for the applicant, contends that the
applicant has challenged the liability of the insurance company and
also the quantification of the award as well as negligence attributed
to its driver. He, therefore, urges that the entire awarded amount
may be ordered to be deposited in the name of Registrar/Nazir of the
concerned Tribunal in a cumulative fixed deposit scheme.
6.
Mr. Bharat Shah, learned advocate for the claimants, submits that the
deceased was travelling in the jeep in discharge of his duties as an
employee of the Government of Gujarat working under the District
Superintendent of Police and, therefore, covers the risk of the
employee employed by the District Superintendent of Police and hence
the claimants are entitled to receive compensation under the Workmen
Compensation Act and hence the insurance company is bound to
indemnify the the award which is passed against the owner of the
jeep. He therefore urges that the amount deposited with the concerned
Tribunal may be disbursed in favour of the claimants. It is also
submitted by Mr. Bharat Shah, learned advocate for the claimants that
United India Insurance Company Limited with whom the offending truck
was insured has satisfied the award to the extent of its liability of
50%. Therefore also the amount deposited by the applicant with the
concerned Tribunal may be disbursed in favour of the claimants.
7. We
have considered the submissions advanced by Mr. Maulik J. Shelat,
learned advocate for the applicant-Oriental Insurance Company Limited
and Mr. Bharat V. Shah, learned advocate for the claimants on the
question of investment and disbursement of the amount deposited by
the applicant-insurance company.
8. In
view of the rival contentions and more particularly when the
applicant-Oriental Insurance Company Limited is challenging its
liability on the ground that the policy does not cover the risk of an
employee who was travelling at the time of the accident in the jeep
insured by the applicant-Oriental Insurance Company Limited,
according to us, if the entire awarded amount i.e., to the extent of
50% negligence which comes as the liability of the
applicant/appellant-insurance company i.e., Rs.14,31,648/- deposited
by the applicant-Oriental Insurance Company Limited is invested in
the name of the Registrar/Nazir of the concerned Tribunal in a
cumulative fixed deposit scheme in any nationalized bank, yielding
higher rate of interest, initially for a period of one year, with a
further direction to reinvest the principal amount as well as the
interest accrued thereon till the appeal is heard and finally
decided, the same would meet the ends of justice.
9. In
the peculiar circumstances of the case, we, issue the following
directions to the Motor Accident Claims Tribunal (Main), Jamnagar:
The
amount of Rs.14,31,648/- deposited by the applicant-Oriental
Insurance Company Limited lying with the concerned Tribunal shall be
invested in the name of the Registrar/Nazir of the concerned Tribunal
in a cumulative fixed deposit scheme in any nationalized bank,
yielding higher rate of interest, initially for a period of one year
with a further direction to reinvest the principal amount as well as
interest accrued thereon, till the appeal is heard and finally
decided.
10. With
the aforesaid observations and directions, this civil Application is
allowed. The impugned judgment and award dated 4.7.2007 rendered by
the Motor Accident Claims Tribunal (Main) Jamnagar in MACP No. 52 of
2004 is stayed qua the applicant/appellant? Oriental Insurance
Company Limited till First Appeal No. 2343 of 2008 is heard and
finally decided. Rule is made absolute with no order as to costs.
(A.M.
Kapadia, J.)
(Z.K.
Saiyed, J.)
…
(karan)
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