Gujarat High Court
Appu Kirankumar Kshatriya vs Anirudhsinh Bharatsinh Sarvaiya on 11 July, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/SCA/14657/2019 ORDER DATED: 11/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14657 of 2019
==========================================================
APPU KIRANKUMAR KSHATRIYA
Versus
ANIRUDHSINH BHARATSINH SARVAIYA
==========================================================
Appearance:
HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
MS.YOGINI H UPADHYAY(6695) for the Petitioner(s) No. 1
MR DAKSHESH MEHTA(2430) for the Respondent(s) No. 3
MR R G DWIVEDI(6601) for the Respondent(s) No. 6
MR. RUSHANG D MEHTA(6989) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1,5
NOTICE UNSERVED for the Respondent(s) No. 2
UNSERVED EXPIRED (N) for the Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 11/07/2022
ORAL ORDER
1. Ms. Yogini Upadhyay learned advocate for the petitioner submits that the petitioner is before this Court challenging the order below Exhibit-63 passed in M.A.C.P. No.166 of 1999 dated 04.05.2013 passed by the M.A.C.T. (Main), Kachchh at Bhuj. Ms. Upadhyay submitted that the Tribunal has erred in allowing Exhibit- 63 filed by respondent No.2 by observing that it has already passed an order under Section 163-A of the Motor Vehicles Act (for short, "the Act"), which is final in nature by relying upon the judgment in the case of Oriental Page 1 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022 C/SCA/14657/2019 ORDER DATED: 11/07/2022 Insurance Company Ltd. v. Dhanbai Kanji Gadhvi, 2011 (2) G.LR. 1534 and thereby, barred the claimant's side from proceeding under Section 166 of the Act. Ms. Upadhyay submits that by way of order dated 20.07.2009 passed in Special Civil Application No.1273 of 2009, on a request made by the learned advocate who appeared for the claimant in that matter, the claimant showed their willingness to proceed with M.A.C.P. No.166 of 1999 under Section 166 of the Act. It was submitted by the advocate concerned that the claimants would not withdraw any amount deposited in Fixed Deposit under Section 163-A of the Act. Ms. Upadhyay submitted that the request was found to be reasonable and thereby, the Tribunal was directed to give priority to the hearing of M.A.C.P. No.166 of 1999 and accordingly, direction was issued to expeditiously dispose of the matter, preferably on or before 30.11.2009.
2. It is submitted by learned advocate Ms. Upadhyay that the Tribunal, in spite of the order of this Court, had failed to expeditiously dispose of the matter nor did the Page 2 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022 C/SCA/14657/2019 ORDER DATED: 11/07/2022 Tribunal make any request to this Court for extending the time period and has thereby failed to adhere to the directions given by this Court to decide the matter on merits. Ms. Upadhyay, by placing reliance upon the judgment of this Court in case of Pushpalattaben Navinchanda v. Gujarat State Road Transport Corporation passed in Special Civil Application No.3313 of 2016 dated 24.09.2018, categorically submitted that the claim petition is of the year 1999 and even if the claimants voluntarily accepts compensation under Section 163-A before 18.04.2004, they cannot be debarred from proceedings under section 166 of the Act. She submits that the order under section 163-A of the Act was passed on 03.01.2000 and thus, stated that the law does not debar the claimants from claiming compensation under Section 166 of the M.V. Act, more so, when the order was passed by this Court on 20.07.2009 in Special Civil Application No.1273 of 2009 permitting to proceed under section 166 of the Act.
3. Countering the arguments, learned advocate Mr. Page 3 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022 C/SCA/14657/2019 ORDER DATED: 11/07/2022 Dakshesh Mehta for respondent no.3 submitted that the day when the matter came to be proceeded with, the Insurance Company had moved application Exhibit-63 by relying upon the judgment in the case of Oriental Insurance Company Ltd. v. Dhanbai Kanji Gadhvi, 2011 (2) G.LR. 1534 and therefore, the claimant cannot be permitted to pursue the claim petition under Section 166 of the Act, particularly, when the claimant had already obtained an order section 163-A of the Act. Mr. Mehta has also placed reliance on the judgment rendered in Hansaben @ Hansbai Budharam Maheshwari Wd/o. Budharam Aatmaram Malshi Danicha & others, 2016 SCC Online Guj 8444 and submitted that following the judgment in Oriental Insurance Company Ltd. v. Dhanbai Kanji Gadhvi's case (supra), the Tribunal has declared that petition under Section 163-A as not maintainable and thus, the only recourse would be to prefer appeal against the said order. Mr. Mehta further stated that once the claimant has obtained compensation under section 163-A of the Act, he is precluded from proceeding further in the petition under Section 166 of the Act.
Page 4 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022
C/SCA/14657/2019 ORDER DATED: 11/07/2022
4. It requires mention that the order under section 163-A of the Act was passed below Exhibit-6 in MACP No.166 of 1999 on 03.01.2000. This High Court in S.C.A. No.1273 of 2009 had passed the following order on 20.07.2009:
"1. RULE. Learned advocate Mr. Mehul S. Shah waives service Rule on behalf of respondents.
2. Present application is filed praying for interim relief in terms of para 11(A) and 11(B).
3. The Court issued notice on 13.02.2009, made it returnable on 05.03.2009. Learned advocate Mr. Shah appeared in response to the said notice and made statement that respondents herein are the original claimants and they are willing to proceed with MACP No.66 of 1999 under Section 166 of the Motor Vehicles Act. Learned advocate Mr. Shah further stated that the claimants will not withdraw any amount, which is deposited in Fixed Deposits under Section 163-A.
4. Learned advocate Mr. Shah requested that as the MACP is of year 1999, the Tribunal be directed to Page 5 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022 C/SCA/14657/2019 ORDER DATED: 11/07/2022 give due priority to the same and same may be decided as expeditiously as possible.
5. Request made by the learned advocate, is found reasonable. The Tribunal is directed to give priority of hearing of MACP No.66 of 1999 and same will be decided as expeditiously as possible, preferably on or before 30.11.2009.
With these observations, present petition is allowed. Rule is made absolute."
5. The said petition was moved by National Insurance Company Ltd. and during the course of hearing, it appears that the claimant's advocate had shown willingness to proceed with MACP No.166 of 1999 under Section 166 of the Act and on the request made by learned advocate for the claimants, being found reasonable, the Tribunal was directed to give hearing on priority basis so as to decide the matter before 30.11.2019.
6. Ms. Upadhyay referred to the judgment in Pushpalattaben Navinchanda v. Gujarat State Road Page 6 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022 C/SCA/14657/2019 ORDER DATED: 11/07/2022 Transport Corporation's case (supra), wherein a mention has been made about the judgment rendered in the case of Deepal Girishbhai Soni v. United India Insurance Co. Ltd., (2004) 5 SCC 385. The Court has also referred to the judgment rendered by the Division Bench in the case of Hansaben @ Hansbai Budharam Maheshwari Wd/o. Budharam Aatmaram Malshi Danicha & 2 (supra), which was relied upon by learned advocate Mr. Mehta to submit that once the claimant has received compensation under section 163-A of the Act, thereafter, an application for compensation under section 166 of the Act shall not be applicable. The said judgment was under challenge before the Apex Court in Special Leave to Appeal (C) No.18874 of 2017. The Hon'ble Court in Pushpalattaben Navinchanda v. Gujarat State Road Transport Corporation's case (supra) while dealing with the observations of the above-referred judgment, had raised questions as to (i) whether prior to the judgment dated 18.03.2004 delivered by this Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. reported in (2004) 5 SCC 385, an application for compensation under section Page 7 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022 C/SCA/14657/2019 ORDER DATED: 11/07/2022 163-A was being considered as an interim application claiming interim compensation on "No Fault Liability"
basis only and hence did not preclude grant of final compensation under section 166 on Fault Liability basis?
And; (ii) whether the afore-stated judgment of Deepal Girishbhai Soni (supra) has retrospective applicability or prospective applicability? The effect being that if it operates prospectively, then all applications under section 163A decided prior to the aforestated judgment would continue to operate as interim applications and would not preclude the Courts from deciding applications under section 166 giving credit of the amount paid under section 163A.
7. While answering the issues so raised, the Court observed in paras-23.1 & 24.1 as under:
"23.1 In view of above situation, the fact remains that the effect of Deepal Soni's judgment (supra) would be such that if the claimants voluntarily accept the compensation under Section 163(A) of the MV Act after 18.3.2004, they may be debarred from proceeding with application under Page 8 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022 C/SCA/14657/2019 ORDER DATED: 11/07/2022 Section 166 of the MV Act. However, those claimants, who have received compensation under Section 163(A) prior to 18.3.2004, cannot be debarred from proceeding with application under Section 166, because at the time of institution of claim petition and prior to 18.3.2004, applications under Section 163(A) and Section 166 of the MV Act were maintainable as per the decision in Ramdevsing V. Chudasma vs. Hansrajbhai V. Kodala reported in 1999 ACJ 1129, Ishwarbhai Babubhai Vaghela Vs. Ranjanben Gokalbhai Prajapati reported in 2002 ACJ 69 and Oriental Insurance Co. Ltd. Vs. Sushilaben Manubhai Valand reported in 2002 ACJ 1181.
24.1 In view of above discussion, now, practically, it becomes clear that decision in the case of Deepal Girishbhai Soni (supra) and Dhanbhai Kanji Gadhvi (supra) applies prospectively and not retrospectively and therefore, in the present case, when order under Section 163(A) is prior to the decision in the case of Deepal Soni (supra) on such factual aspect itself, the petition needs to be allowed as prayed for because of the order dated 29.11.2017 in Civil Appeal No.19981 of 2017 by Hon'ble the Supreme Court of India."
8. It is to be noted that in the present case, the order Page 9 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022 C/SCA/14657/2019 ORDER DATED: 11/07/2022 under section 163-A of the Act was passed on 03.01.2000. This Court while directing the Tribunal to expedite the matter in MACP No.166 of 1999 had passed an order on 20.07.2009. The order under section 163A of the Act, thus, being passed prior to 18.03.2004, would not come in the way of the petitioner from proceeding further in accordance with the direction given by this Court in Special Civil Application No.1273 of 2008. The petitioner would not be debarred from proceeding with the application filed under section 166 of the Act, as prior to 18.03.2004 it was permissible to file applications under Sections 163A and 166 of the Act.
9. The Tribunal has failed to take into consideration the law as it stood prior to 18.03.2004. The judgment rendered in Special Civil Application No.1273 of 2009 was within the knowledge of the Insurance Company. The Insurance Company also had the knowledge that the matter was directed to be disposed of prior to 30.11.2009. None of the parties had persuaded the Tribunal to conduct the matter nor did the Tribunal take Page 10 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022 C/SCA/14657/2019 ORDER DATED: 11/07/2022 any initiative to conclude the matter before 30.11.2009. It has been informed to this Court that the Tribunal has not even prayed for extension of time for concluding the matter. Unfortunately, being oblivious of the progress in the matter between the parties, the Tribunal entertained the application Exh.63.
10. Since the order passed in claim petition filed under Section 163-A was prior to 18.03.2004 and the amount was not withdrawn by the claimants, which was invested in Fixed Deposit under section 163-A as was observed by the Court in Special Civil Application No.1273 of 2009, the proceedings are required to be conducted as under
section 166 of the M.V. Act.
11. Considering the law and the issue as decided in Pushpalattaben Navinchanda v. Gujarat State Road Transport Corporation's case (supra), the petition is allowed. The impugned order dated 04.05.2013 passed by the M.A.C.T. (Main), Kachchh at Bhuj below Exh.63 in M.A.C.P. No.166 of 1999 is quashed and set aside with a Page 11 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022 C/SCA/14657/2019 ORDER DATED: 11/07/2022 direction that the said claim petition be proceeded in accordance with the provisions of Section 166 of the Act. The said claim petition be disposed of preferably within a period of six months from the date of receipt of writ of this order.
(GITA GOPI, J) PRAVIN KARUNAN Page 12 of 12 Downloaded on : Fri Jul 15 20:48:11 IST 2022