Gujarat High Court
New India Assurance Co Ltd vs Kamleshkaur Charanjitsingh on 8 April, 2013
Author: M.D. Shah
Bench: M.D. Shah
NEW INDIA ASSURANCE CO LTD....Appellant(s)V/SKAMLESHKAUR CHARANJITSINGH SAINI C/FA/902/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 902 of 2013 With CIVIL APPLICATION NO. 4151 of 2013 In FIRST APPEAL NO. 902 of 2013 ============================================= NEW INDIA ASSURANCE CO LTD....Appellant(s) Versus KAMLESHKAUR CHARANJITSINGH SAINI & 6....Defendant(s) ============================================= Appearance: MR SUNIL B PARIKH, ADVOCATE for the Appellant(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE M.D. SHAH Date : 08/04/2013 ORAL ORDER
[1] By this appeal, the appellant Insurance Company has challenged the order dated 23.12.2011 passed by the learned Motor Accident Claims Tribunal (Auxi), Gandhidham Kachchh in M.A.C.Petition No.15 of 2009.
[2] It is submitted by learned advocate for the appellant that insurance company has raised contention in reference to breach of condition of policy as well as statutory rights available to the insurance company, while deciding application under section 140 of the M.V.Act. In view of decision of this Court in the case of United India Insurance Co. Ltd. v/s. Sidikbhai Ukabhai Solanki and Anr. reported in 2012 (2) GLH 465, the appellant Insurance company has preferred this appeal. Thus, present no fault liability award would be treated as constructive res-judicata while deciding claim petition under section 166 of the M.V.Act.
[3] Considering submission of learned advocate for the appellant herein, in opinion of this Court, if necessary direction is given to the learned Tribunal not to treat the order passed by the Tribunal below application under section 140 of the M.V.Act as constructive res-judicata nor will it come in any way while deciding main claim petition filed under section 166 of the M.V.Act, then, it will meet the ends of justice.
[4] In view of above, order dated 23.12.2011 passed by the learned Motor Accident Claims Tribunal (Auxi), Gandhidham Kachchh in M.A.C.Petition No.15 of 2009 will not be treated as constructive res judicata and will not come in any way while deciding claim petition filed under section 166 of the M.V.Act. Learned Tribunal will decide the main claim petition on merits without being influenced by the order passed by the learned Tribunal below application under section 140 of the M.V.Act. Insurance Company is at liberty to raise all the contentions which are available under the law before the learned Tribunal.
[5] In pursuance of the order passed by the learned Tribunal below application under section 140 of the M.V.Act, if any amount is deposited by the Insurance Company, then, the learned Tribunal will pass necessary orders under the provisions of law to disburse and invest in cumulative deposit. The claimant/s will file Undertaking on affidavit that he/she/they will not withdraw or permit to dismiss for default or non prosecution of main claim petition but will obtain judgment on merits.
In view of above, the first appeal is disposed of.
No order in Civil Application and same is disposed of.
(M.D.SHAH, J.) satish Page 2 of 2