Royal vs Mehul on 24 March, 2011

Gujarat High Court
Royal vs Mehul on 24 March, 2011
Author: H.K.Rathod,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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FA/43320/2009	 5/ 5	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

FIRST
APPEAL No. 433 of 2009 

 

With


 

CIVIL
APPLICATION No. 1050 of 2009
 

With


 

FIRST
APPEAL No. 434 of 2009 

 

With


 

CIVIL
APPLICATION No. 1052 of 2009
 

 


 

 


 

 
=========================================================

 

ROYAL
SUNDARAM ALLIANCE INSURANCE COMPANY - Appellant(s)
 

Versus
 

MEHUL
MAHENDRABHAI MAMTORA & 5 - Defendant(s)
 

=========================================================
 
Appearance
: 
MR
DAKSHESH MEHTA for
Appellant(s) : 1, 
None
for Defendant(s) : 1 -
6. 
=========================================================


 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE H.K.RATHOD
		
	

 

 
 


 

Date
: 04/02/2009 

 

 
 
ORAL
ORDER

Heard
learned Advocate Mr. Dakshesh Mehta for appellant.

By
way of these appeals, appellant Insurance Co. has challenged interim
award made by MACT concerned in Claim Petition 602/07 and 603/07
dated 30.7.2008 and 30.8.2008 respectively. This being fatal case,
claimants have filed application under section 166 of MV Act before
claims tribunal and during pendency of application under sec. 166 of
MV Act, 1988, claimants filed application under sec. 140 of MV Act
in aforesaid claim petitions claiming interim compensation and
claims tribunal awarded Rs.50,000.00 on the basis of No Fault
Liability. Therefore, these appeals have been filed by appellant
insurance company.

Learned
Advocate Mr. Mehta for appellant has raised contention objections
were filed by appellant insurance company by filign written
statement at Exh. 30 and 29 but claims tribunal has not considered
same. He submits that insurance company has raised statutory
defences covered by sec. 149(2) of MV Act
and also requested claims tribunal to consider and decide
same but claims tribunal not considered or decided such statutory
defences raised by insurance company. He relied upon decision of
apex court in Yallwwa (Smt.) & Others versus National Insurance
Company & Others reported in 2007 ACJ 1934 = 2007(6) SCC 657 and
submitted before this Court that it has been held by apex court that
if any objection has been raised by insurance company covered by
section 149(2), then, claims tribunal must have to decide and
examine such objections even at the stage of application under sec.
140 of MV Act. Apart from that, application under sec. 166 of MV
Act, 1988 filed by claimant is pending before claimants.

Considering
these submissions made by learned Advocate Mr. Mehta for appellant,
according to my opinion, claims tribunal has not considered
statutory defence raised by insurance company, however, according to
my opinion, admission of this appeal would be having no meaning
because it will have to wait upto decision in an application under
section 166 of MV Act, therefore, it is better to dispose of this
appeal without expressing any opinion on merits while directing
claims tribunal to examine application under section 166 of MV Act,
1988 and to examine and consider objections raised by insurance
company in accordance with law with a further direction to claims
tribunal not to permit claimant to withdraw application under
section 166 of MV Act and claimant cannot abandon such proceedings.
If these appeals are disposed of without expressing any opinion on
merits while directing claims tribunal to decide main application of
claimants in both appeals under sec. 166 of MV Act as expeditiously
as possible, it would met ends of justice between the parties.

In
view of these facts, these appeals are disposed of without
expressing any opinion on merits. Claims tribunal concerned is
directed to decide main application under sec. 166 of MV Act, 1988
as expeditiously as possible in accordance with law after hearing
parties before it. Appellant insurance company is directed to
deposit entire awarded amount together with costs and interest in
each claim petition before claims tribunal within one month from the
date of receipt of copy of this order. After realizing amounts from
insurance company, claims tribunal is directed to pay 30% amount to
claimants by way of an account payee cheque drawn in his favour and
rest of the amount is ordered to be invested in any nationalized
bank for a period of three years, to be renewed from time to time
with cumulative interest , in the name of respondent claimant but
FDRs to remain in custody of Nazir of the Claims Tribunal concerned
and claimant will not be entitled to any interest upon such FDRs
till application under section 166 of MV Act, 1988 is decided by
claims tribunal in accordance with law. Claims Tribunal is further
directed not to permit withdrawal of application under sec. 166 of
MV Act and claimant shall not abandon proceedings of an application
under sec. 166 of MV Act, 1988 but shall have to get it decided on
merits by claims tribunal and claims tribunal shall decide
application under sec. 166 of MV Act as expeditiously as possible,
strictly in accordance with law after examining objections raised by
insurance company without being influenced by award of claims
tribunal under sec. 140 of MV Act, as well as present order passed
by this court.

With
these observations and directions, these appeals are disposed of
without expressing any opinion on merits.

Since
first appeals have been disposed of by this court, no order is
required to be passed on civil applications for stay, therefore,
civil applications for stay are also disposed of accordingly.

(H.K.

Rathod,J.)

Vyas

   

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