Gujarat High Court
New vs Sumaliben on 29 March, 2012
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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FA/2192/2007 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2192 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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NEW
INDIA ASSURANCE CO.LTD. - Appellant(s)
Versus
SUMALIBEN
W/O MANSINGBHAI NURABHAI NAYAK & 4 - Defendant(s)
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Appearance :
MR
SANDIP C SHAH for Appellant(s) : 1,
MR SK BUKHARI for Defendant(s)
: 1 - 2.
MR HARSHAD K PATEL for Defendant(s) : 3,
None for
Defendant(s) : 4,
RULE SERVED for Defendant(s) :
5,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 29/03/2012
ORAL
JUDGMENT
1. This appeal is filed against the judgment and award dated 14th November 2006 passed by the learned Motor Accident Claims Tribunal (Aux), Panchmahal at Godhra in MAC Petition No.1113 of 2002 by which the Tribunal has partly allowed the claim petition filed by the appellants-claimants.
2 The son of the claimants viz. Koyabhai @ Shankarbhai was working as a Cleaner on truck bearing No.G.R.Y. 5330 which belonged to one Farukhbhai of Godhra. On the date of the incident the truck was going from Vapi to village Baska of Panchmahal District. The said truck was loaded with paper bundles. It is the case of the claimants that on the way the tyre of the said truck got punctured and therefore while the deceased was in the process of changing the tyre, at that time, the offending vehicle came from behind and dashed with the stationary truck due to which Koyabhai had died. His parents filed the claim petition claiming compensation of Rs.3 lakhs. The Tribunal has partly allowed the claim petition and granted Rs.1,55,400/- to the claimants. However, the Tribunal has deleted the name of the original owner as he has died during the pendency of the claim petition and his heirs were not brought on record. Hence, the present appeal.
3 Learned counsel for the appellants has submitted that the Tribunal has committed an error in not considering the aspect that in absence of any award against the insured/owner the insurance company is legally not liable to indemnify the award in favour of third parties. In support of his contention, learned counsel for the appellant has relied upon the decision of the High Court of Judicature at Madras in the case of United India Insurance Co. Ltd. v. Vijaya & Ors, reported in 2006 ACJ 1530. In the said case the High Court of Madras has observed as under:-
"8.
The primary liability was obviously on the owner and only because of the statutory provisions and the contract of insurance, the Insurance Company becomes liable. In other words, the Insurance Company under the law is required to indemnify the insured and unless the insurer himself is found liable to pay, there is no liability for the Insurance Company.
9. In the present case, admittedly the owner died during pendency of the claim applications. In the absence of any substitution, the claim applications could not have been proceeded further. It is of course true that the counsel for the claimants made endorsement giving up the Respondent No. 1, namely, the owner. No steps for substitution has been taken on the basis of the wrong notion of the Advocate in this matter. Therefore, it must be taken that the claim applications had abated before the Tribunal on account of non-substitution in the place of the deceased-respondent, who is the owner-cum-driver of the vehicle.
10. In view of the aforesaid conclusion, the award of the Tribunal is bound to be set aside. However, in our opinion, the claimants should be given a further chance to rectify the defects and to proceed further in the matter by bringing on record the legal representatives of the deceased owner-Cum-driver/Respondent No. 1 in the claim applications. We feel this course is required to be adopted in the interest of justice as otherwise on account of wrong notion of the Advocate concerned, the claim applications would become untenable and the claim applications have to be dismissed.
11. It is of course true that steps for substitution are to be taken within the time prescribed and if such steps are not taken within the time stipulated, the proceedings or the suit abate on the expiry of such prescribed period. Under Section 166(3), as it originally stood, six months period was fixed for filing claim application and under the proviso the Tribunal had jurisdiction to extend the by 12 months. However, Section 166(3) has been deleted by Act 54 of 1994 with effect from 14.11.1994. After such deletion of Section 166(3), several Courts have taken the consistent view that there is no period of limitation for filing claim application and even the residuary clause under Article 137 of the Limitation Act is not applicable. The aforesaid view receives considerable support from the decisions United India Insurance Co. v. Sarvati Devi 2001 (2) ACC 331 (All) ; Malti Bai v. Ramadhar Singh 2002 ACJ 1623 (MP); Latabai Bhagwan Kakade v. Mohanmed Ismail Mohd. Saab Bhagwan 2002 ACJ 407 (Bom) (DB) and Dhannalal v. D.P. Vijayvargiya and Ors. . If the claim application can be filed at any time, it goes without saying that the period contemplated for filing substitution petition can be at least liberally extended. When the claim application itself can be filed at any time, no prejudice would be caused by permitting the claimants to implead the legal representatives of the deceased owner/Respondent No. 1 even after long lapse of time."
4 Having regard to all these aspects, while allowing the appeal, I remit the matter to the Tribunal with the observation that the Claims Tribunal shall give further opportunity to the claimants to bring the legal representatives of the deceased owner on record and thereafter the matter should be decided afresh in accordance with law. The claimants should bring on record the legal representatives of the deceased-owner in the claim application within a period of four weeks failing which claim petition will stand dismissed.
Direct Service is permitted.
(K.S.Jhaveri, J.) *mohd Top