Gujarat High Court
Iffco Tokio General Insurance Company ... vs Mamadbhai Ibrahimbhai Khafi on 17 March, 2020
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/FA/2719/2019 IA JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In
R/FIRST APPEAL NO. 2719 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 2024 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In
R/FIRST APPEAL NO. 2037 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In
R/FIRST APPEAL NO. 3115 of 2018
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In
R/FIRST APPEAL NO. 3478 of 2018
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 1528 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 1793 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
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R/FIRST APPEAL NO. 2194 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 2917 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 2920 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 2918 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 3313 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 3373 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 3513 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 3546 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 3563 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 4032 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 4034 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 4288 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
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R/FIRST APPEAL NO. 4571 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 4760 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 5281 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 5282 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 5468 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 5971 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 6012 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 6013 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 6014 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 6047 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 6070 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 6132 of 2019
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 19 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 43 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 187 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 449 of 2020
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
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R/FIRST APPEAL NO. 944 of 2020
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C/FA/2719/2019 IA JUDGMENT
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
==========================================================
1 Whether Reporters of Local Papers may be YES allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair NO copy of the judgment ?
4 Whether this case involves a substantial NO question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== THE NEW INDIA ASSURANCE CO. LTD & OTHER INSURANCE COMPANIES .... APPLICANTS (ORIGINAL APPELLANTS) Versus GARASIYA MANJULABEN WD/O BHIMJIBHAI KODARBHAI AND OTHERS ....OPPONENTS (ORIGINAL CLAIMANTS) ========================================================== Appearance:
MR. SUNIL PARIKH, MR. VIBHUTI NANAVATI, MR. AJAY MEHTA, MR. RATHIN RAVAL, MR. H.G. MAJMUDAR, MR. MAULIK SHELAT, MR. CHIRAYU MEHTA, MS. KIRTI S. PATHAK, MR. TANMAY KARIA, MR. PALAK THAKKAR, MR. V.C. THOMAS, MS. LILU K. BHAYA, MR. YOGI GADHIYA, MR. RAHUL DHOLAKIYA, MR. DAXESH MEHTA, MS. KARUNA RAHEVAR, MR.ANKIT SHAH AND MR. R.G. DWIVEDI, ADVOCATES FOR THE APPLICANTS / APPELLANTS (FOR RESPECTIVE INSURANCE COMPANIES) Page 6 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT MR. HIREN MODI, MR. NISHIT BHALODI, MR. KASH THAKKAR, MR. H.M. SHAH, MR. HEMAL SHAH, MR. CHETANKUMAR SHAH, MR. M.T.M. HAKIM WITH MR. MOHSIN HAKIM, MR. VISHAL MEHTA, MR. JENIL SHAH, MR. YOGENDRA THAKOR, MR. R.G. DWIVEDI, MR. ANKIT SHAH, MS. AMRITA AJMERA, MS. J.K. HINGORANI, MR. PARESH DARJI, MR. R.K. MANSURI, MR. MAKBUL MANSURI AND MR. MONAL S. CHAGLANI, ADVOCATES FOR OPPONENTS (FOR RESPECTIVE CLAIMANTS) ========================================================== CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 17/03/2020 IA JUDGMENT
1. These applications are filed by the Insurance Companies in the appeals filed by them. Challenge in the appeals is made to the judgment and award passed by the Motor Accident Claims Tribunals, the details of which are noted hereunder -
Para: 2.1 to 2.36. By these applications, stay is prayed for against the implementation and execution of the impugned judgment and award.
2.1 Challenge in First Appeal No. 2719 of 2019 is made by the Insurance Company - New India Assurance Company Ltd. to the judgment and award dated 04.08.2017 passed by the Motor Accident Claims Tribunal, Arvalli at Modasa in M.A.C.P. No. 425 of 2015 (Old M.A.C.P. No. 107 of 2007).
2.2 Challenge in First Appeal No.2024 of 2018 is made by the Insurance Company - National Insurance Company Ltd. to the Page 7 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT judgment and award dated 29.12.2017 passed by the Motor Accident Claims Tribunal, Vadodara in M.A.C.P. No. 1889 of 2008.
2.3 Challenge in First Appeal No. 2037 of 2018 is made by the Insurance Company - United India Insurance Company Ltd. to the judgment and award dated 03.04.2018 passed by the Motor Accident Claims Tribunal, Rajkot at Jetpur in M.A.C.P. No. 436 of 2012 (old MACP No. 106 of 2011).
2.4 Challenge in First Appeal No.3115 of 2018 is made by the Insurance Company - Reliance General Insurance Company Ltd. to the judgment and award dated 23.04.2018 passed by the Motor Accident Claims Tribunal, Kheda at Nadiad in M.A.C.P. No. 712 of 2015.
2.5 Challenge in First Appeal No.3478 of 2018 is made by the Insurance Company - United India Insurance Company Ltd. to the judgment and award dated 27.03.2018 passed by the Motor Accident Claims Tribunal, Palanpur in M.A.C.P. No. 83 of 2013.
2.6 Challenge in First Appeal No.1528 of 2019 is made by the Insurance Company - Bajaj Allianz General Insurance Company Ltd. to the judgment and award dated 23.10.2018 passed by the Motor Accident Claims Tribunal, Panchmahals at Godhra in M.A.C.P. No. 308 of 2012.
2.7 Challenge in First Appeal No. 1793 of 2019 is made by the Insurance Company - ICICI Lombard General Insurance Company Ltd. to the judgment and award dated 12.12.2018 Page 8 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT passed by the Motor Accident Claims Tribunal, Ahmedabad (Rural) at Ahmedabad in M.A.C.P. No. 457 of 2015.
2.8 Challenge in First Appeal No. 2194 of 2019 is made by the Insurance Company - New India Assurance Company Ltd. to the judgment and award dated 20.06.2018 passed by the Motor Accident Claims Tribunal, Kachchh at Anjar in M.A.C.P. No. 95 of 2015 (Old M.A.C.P. No. 451 of 1999).
2.9 Challenge in First Appeal No.2917 of 2019 is made by the Insurance Company - Bajaj Allianz General Insurance Company Ltd. to the judgment and award dated 19.01.2019 passed by the Motor Accident Claims Tribunal, Vadodara in M.A.C.P. No. 827 of 2010.
2.10 Challenge in First Appeal No.2920 of 2019 is made by the Insurance Company - Bajaj Allianz General Insurance Company Ltd. to the judgment and award dated 19.01.2019 passed by the Motor Accident Claims Tribunal, Vadodara in M.A.C.P. No. 291 of 2010.
2.11 Challenge in First Appeal No.2918 of 2019 is made by the Insurance Company - Bajaj Allianz General Insurance Company Ltd. to the judgment and award dated 19.01.2019 passed by the Motor Accident Claims Tribunal, Vadodara in M.A.C.P. No. 292 of 2010.
2.12 Challenge in First Appeal No. 3313 of 2019 is made by the Insurance Company - New India Assurance Company Ltd. to the judgment and award dated 23.01.2019 passed by the Motor Accident Claims Tribunal, Kachchh at Anjar in Page 9 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT M.A.C.P. No. 437 of 2015 (old MACP No. 258 of 2006).
2.13 Challenge in First Appeal No. 3373 of 2019 is made by the Insurance Company - United India Insurance Company Ltd. to the judgment and award dated 21.02.2019 passed by the Motor Accident Claims Tribunal, Ahmedabad at Mirzapur in M.A.C.P. No. 568 of 2004.
2.14 Challenge in First Appeal No.3513 of 2019 is made by the Insurance Company - IFFCO TOKIO General Insurance Company Ltd. to the judgment and award dated 30.10.2018 passed by the Motor Accident Claims Tribunal, Panchmahals at Godhra in M.A.C.P. No. 174 of 2011.
2.15 Challenge in First Appeal No. 3546 of 2019 is made by the Insurance Company - Reliance General Insurance Company Ltd. to the judgment and award dated 19.04.2019 passed by the Motor Accident Claims Tribunal, Panchmahals at Godhra in M.A.C.P. No. 11 of 2012.
2.16 Challenge in First Appeal No. 3563 of 2019 is made by the Insurance Company - IFFCO TOKIO General Insurance Company Ltd. to the judgment and award dated 20.10.2018 passed by the Motor Accident Claims Tribunal, Panchmahals at Godhra in M.A.C.P. No. 173 of 2011.
2.17 Challenge in First Appeal No.4032 of 2019 is made by the Insurance Company - United India Insurance Company Ltd. to the judgment and award dated 28.03.2019 passed by the Motor Accident Claims Tribunal, Sabarkantha at Himmatnagar in M.A.C.P. No. 1042 of 2008.
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by the Insurance Company - New India Assurance Company Ltd. to the judgment and award dated 18.04.2019 passed by the Motor Accident Claims Tribunal, Bhavnagar at Mahuva in M.A.C.P. No. 75 of 2017.
2.19 Challenge in First Appeal No. 4288 of 2019 is made by the Insurance Company - Future Generalli India Insurance Company Ltd. to the judgment and award dated 08.05.2019 passed by the Motor Accident Claims Tribunal, Surat in M.A.C.P. No. 973 of 2012.
2.20 Challenge in First Appeal No.4571 of 2019 is made by the Insurance Company - ICICI Lombard General Insurance to the judgment and award dated 30.01.2018 passed by the Motor Accident Claims Tribunal, Panchmahals at Halol in M.A.C.P. No. 1004 of 2017 (old MACP No.1342 of 2008).
2.21 Challenge in First Appeal No.4760 of 2019 is made by the Insurance Company - Oriental Insurance Company Ltd. to the judgment and award dated 27.04.2018 passed by the Workman Compensation Commissioner, Himmatnagar in WC(Fatal) No. 08 of 2013.
2.22 Challenge in First Appeal No. 5281 of 2019 is made by the Insurance Company - United India Insurance Company Ltd. to the common judgment and award dated 06.08.2019 passed by the Motor Accident Claims Tribunal, Gandhinagar in M.A.C.P. No. 256 of 2010.
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by the Insurance Company - United India Insurance Company Ltd. to the common judgment and award dated 06.08.2019 passed by the Motor Accident Claims Tribunal, Gandhinagar in M.A.C.P. No. 255 of 2010.
2.24 Challenge in First Appeal No. 5468 of 2019 is made by the Insurance Company - New India Assurance Company Ltd. to the judgment and award dated 21.06.2019 passed by the Motor Accident Claims Tribunal, Sabarkantha at Idar in M.A.C.P. No. 355 of of 2013.
2.25 Challenge in First Appeal No. 5971 of 2019 is made by the Insurance Company - Reliance General Insurance Company Ltd. to the judgment and award dated 29.03.2019 passed by the Motor Accident Claims Tribunal, Anand in M.A.C.P. No. 129 of 2014.
2.26 Challenge in First Appeal No. 6012 of 2019 is made by the Insurance Company - HDFC ERGO General Insurance Company Ltd. to the judgment and award dated 02.08.2019 passed by the Motor Accident Claims Tribunal, Sabarkantha at Idar in M.A.C.P. No. 859 of 2013.
2.27 Challenge in First Appeal No. 6013 of 2019 is made by the Insurance Company - HDFC ERGO General Insurance Company Ltd. to the judgment and award dated 02.08.2019 passed by the Motor Accident Claims Tribunal, Sabarkantha at Idar in M.A.C.P. No. 860 of 2013.
Page 12 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020C/FA/2719/2019 IA JUDGMENT 2.28 Challenge in First Appeal No. 6014 of 2019 is made
by the Insurance Company - HDFC ERGO General Insurance Company Ltd. to the judgment and award dated 02.08.2019 passed by the Motor Accident Claims Tribunal, Sabarkantha at Idar in M.A.C.P. No. 861 of 2013.
2.29 Challenge in First Appeal No. 6047 of 2019 is made by the Insurance Company - The United India Insurance Company Ltd. to the judgment and award dated 17.11.2018 passed by the Motor Accident Claims Tribunal, Patan in M.A.C.P. No. 416 of 2010.
2.30 Challenge in First Appeal No. 6070 of 2019 is made by the Insurance Company - HDFC ERGO General Insurance Company Ltd. to the judgment and award dated 25.06.2019 passed by the Motor Accident Claims Tribunal, Sabarkantha at Idar in M.A.C.P. No. 673 of 2012.
2.31 Challenge in First Appeal No.6132 of 2019 is made by the Insurance Company - ICICI Lombard General Insurance Co. Ltd., to the judgment and award dated 20.07.2019 passed by the Motor Accident Claims Tribunal, Kutchhch at Bhuj in M.A.C.P. No. 385 of 2015.
2.32 Challenge in First Appeal No. 19 of 2020 is made by the Insurance Company - New India Assurance Co. Ltd., to the judgment and award dated 30.05.2019 passed by the Motor Accident Claims Tribunal, Ahmedabad at Mirzapur in M.A.C.P. No.1064 of 2007.
2.33 Challenge in First Appeal No. 43 of 2020 is made by Page 13 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT
the Insurance Company to the judgment and award dated 20.07.2019 passed by the Motor Accident Claims Tribunal, Ahmedabad at Mirzapur in M.A.C.P. No. 574 of 2013.
2.34 Challenge in First Appeal No.187 of 2020 is made by the Insurance Company - IFFCO TOKIO General Insurance Company Ltd., to the judgment and award dated 11.04.2018 passed by the Motor Accident Claims Tribunal, Jamnagar in M.A.C.P. No. 469 of 2010.
2.35 Challenge in First Appeal No.449 of 2020 is made by the Insurance Company - HDFC ERGO General Insurance Co. Ltd., to the judgment and award dated 18.09.2019 passed by the Motor Accident Claims Tribunal, Anand in M.A.C.P. No. 243 of 2017.
2.36 Challenge in First Appeal No. 944 of 2020 is made by the Insurance Company - New India Assurance Co. Ltd., to the judgment and award dated 09.08.2019 passed by the Motor Accident Claims Tribunal, Junagadh in M.A.C.P. No. 124 of 2018.
3. All the appeals are admitted.
4. Learned advocates for the appellants - Insurance Companies have stated that, the amount awarded by the Tribunal is already deposited by the appellants with the concerned Tribunal, including the costs and interest.
5. Learned advocates for the claimants have submitted that, the claimants be permitted to withdraw the part of the Page 14 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT amount which is deposited by the appellants, as per the award of the Tribunal.
6. Appropriate orders are passed by the Court, considering the facts of each case, however with a view to see that by and large uniformity is maintained while passing such orders and there is no heart burning to any claimant / litigant, learned advocates are heard on the points :- To what extent, and on what conditions, disbursement / withdrawal should be ordered / allowed from the amount awarded by the Tribunal, which is deposited by the Insurance Companies with the concerned Tribunal.
7. Number of instances have come to the notice of this Court, that the amount which is awarded by the Tribunal and which is deposited by the Insurance Companies during the pendency of their appeal before this Court and part thereof which is not disbursed to the claimants and therefore which is invested in the Fixed Deposits in the Banks with certain conditions / stipulations, under the orders of the Court, are dealt with unauthorisedly and against the stipulations of the Court. When the appeals are finally decided / allowed, either fully or in part, the consequence thereof is that, the amount which was not disbursed to the claimants and was therefore invested in the bank, is not found, where it should be. How that happens and who is to be blamed for it, are the issues which may be gone into by this Court in those individual cases, however there is consensus amongst the learned advocates that, without creating any procedural difficulties for the claimants, some mechanism should be worked out, where the amount which is deposited by the Insurance Companies and Page 15 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT which is not disbursed to the claimants, is not dealt with unauthorisedly by any person and ultimately it should reach the right hands.
8.1 Keeping in view the above, learned advocates for the respective Insurance Companies and the Claimants are heard at length by this Court, on different dates i.e. on March 11, 12, 13, 16 and 17, of 2020.
8.2 It is noted that, on behalf of the Insurance Companies - Mr. Sunil Parikh, Mr. Vibhuti Nanavati, Mr. Ajay Mehta, Mr. Rathin Raval, Mr. H.G. Majmudar, Mr. Maulik Shelat, Mr. Chirayu Mehta, Ms. Kirti S. Pathak, Mr. Tanmay Karia, Mr. Palak Thakkar, Mr. V.C. Thomas, Ms. Lilu K. Bhaya, Mr. Yogi Gadhiya, Mr. Rahul Dholakiya, Mr. Daxesh Mehta, Ms. Karuna Rahevar, Mr.Ankit Shah and Mr. R.G. Dwivedi, learned advocates have addressed the Court.
8.3 It is also noted that, on behalf of the claimants - Mr. Hiren Modi, Mr. Nishit Bhalodi, Mr. Kash Thakkar, Mr. H.M. Shah, Mr. Hemal Shah, Mr. Chetankumar Shah, Mr. M.T.M. Hakim with Mr. Mohsin Hakim, Mr. Vishal Mehta, Mr. Jenil Shah, Mr. Yogendra Thakor, Mr. R.G. Dwivedi, Mr.Ankit Shah, Ms. Amrita Ajmera, Ms. J.K. Hingorani, Mr. Paresh Darji, Mr. R.K. Mansuri, Mr. Makbul Mansuri and Mr.Monal S. Chaglani, learned advocates have addressed the Court.
9. Having heard learned advocates for the respective parties, it has transpired that, there is consensus on the following aspects, which are noted in Para : 10 to 15.
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10. The broad convention, which is followed by this Court at present, that under normal circumstances, 30% of the amount deposited by the Insurance Companies should be disbursed to the claimants (unless some peculiarity is shown to the Court), should be continued. The said disbursement may be made subject to the final result of the appeal and / or further orders that may be passed by the Court.
11.1 How the balance amount should be dealt with, is an issue, on which detailed deliberations are made.
11.2 The present convention that, the said amount may be invested in any nationalised bank, be continued. Whether the said investment should be in cumulative fixed deposits or periodical interest should be permitted to be withdrawn by the concerned Claimant, may be decided in case to case basis. The said investment should be at any branch, at the station where the concerned Tribunal is functioning. In the event, no nationalised bank is there, at any such station, appropriate decision be taken by the concerned Tribunal - at which branch it should be invested, however in any case it has to be a nationalised bank.
11.3 The present convention that, the said investment should initially be for a period of five years and the same be renewed from time to time, until the appeal is finally decided, be continued.
11.4 The said investment, including renewal thereof should be with the further stipulation that, there shall not be any premature encashment of the said FDRs. No one, not even Page 17 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT the claimants shall be allowed to raise any borrowings against such investment or create any encumbrance on it in any manner.
11.5 Original Fixed Deposit Receipt(s) should be retained in the custody of the concerned Tribunal.
12.1 As already noted above, number of instances have come to the notice of this Court that, the amount which is not disbursed to the claimants, ultimately do not reach the right hands. When the appeals are finally allowed, either fully or in part, the consequence thereof is that the amount which was not disbursed to the claimants and was therefore invested, is not found, where it should be. This can be taken care of, if the balance of the amount deposited by the Insurance Companies, after initial disbursement to the claimants, may be invested in the joint name of the claimants and the Registrar / Nazir of the concerned Tribunal. The name of the Registrar / Nazir of the concerned Tribunal (by designation only) is to be added only for the purpose that, the said FDRs are not dealt with unauthorisedly by any person.
12.2 It may also be provided that, the name of the Registrar / Nazir may be kept at last, after the name of the claimants, so that while making payment of interest, no complication is created. It may further be provided that, the interest would go to the claimants only, either periodically or cumulatively as may be ordered by the Court and the Registrar would not have any locus in that regard. It may also be provided that, in those cases, where income-tax is required to be deducted at source (TDS), appropriate certificate shall be Page 18 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT given by the concerned Bank to the concerned claimant(s) only and no procedure like NOC etc. from the concerned Registrar / Nazir would be required. In the event, the claimant(s) is asking for refund from the Income tax Authority from the said TDS, the Registrar / Nazir would not have any say like getting any NOC from him, in that regard etc.
13. Since it is to be provided that, the investment shall be in the nationalised bank at the station where the Tribunal is functioning, the claimant(s) should not face any difficulty in getting periodical interest, whenever it is so ordered. For this purpose, it be provided that the claimant(s) should be at liberty to have his bank account (for the purpose of crediting interest of the FDs), with any bank / branch, which need not be a nationalised bank. It should however have ECS facility, so that interest can be credited in that bank / branch. Instances have also come to the notice that, it is doubtful whether the periodical interest reaches the right hands. This can be taken care of by providing that, the bank account in which the interest is to be credited is not dealt with by any power of attorney holder, except in a given case, when it is in the name of any family member, if it is so required. With this, the claimant(s) would not be put to any inconvenience to go to the station where the Tribunal is functioning, only to get periodical interest and at the same time, his money would also reach his own hands.
14. The subject matter of the appeals by the Insurance Companies, is challenge to the award passed by the Tribunal. In the event, the appeal is dismissed, the amount invested in the Fixed Deposits should be disbursed to the claimant(s). The Page 19 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT FDRs would already be in their names. But in the event the appeal is allowed by this Court (even in part), it may lead to a situation where, the amount deposited by the Insurance Companies, which was ordered to be invested in FDRs under the orders of this Court, need to be refunded to the concerned Insurance Company. At that time, the said amount would be lying in the Fixed Deposit in the name of the claimant(s). In that eventuality, no procedure like any No Objection from the concerned Claimant(s) or his representative should be required and the said amount (part thereof, as the case may be) should be refunded to the concerned Insurance Company, with interest accrued thereon, as may be ordered by the Court.
15.1 Before the operative part of the judgment and order is recorded, it is noted that, in the present group of appeals, there is agreement between the learned advocates for the contesting parties on the point - whether the claimants would be entitled to get the interest on the amount to be invested in the nationalised banks (which is 70% of what is deposited by the appellant - Insurance Companies with the Tribunal), during the pendency of the appeals. In other words, whether the said investment should be in cumulative fixed deposits or periodical interest should go to the claimants - on that point, there is no dispute and therefore, there is no adjudication by this Court. The said agreement is noted in para: 15.2 and 15.3.
15.2 In the following First Appeals, the said investment shall be in cumulative fixed deposit and the claimant(s) shall not be entitled to get periodical interest on the said FDRs.
1. R/FIRST APPEAL NO. 3115 of 2018 Page 20 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT
2. R/FIRST APPEAL NO. 3478 of 2018
3. R/FIRST APPEAL NO. 1528 of 2019
4. R/FIRST APPEAL NO. 1793 of 2019
5. R/FIRST APPEAL NO. 3313 of 2019
6. R/FIRST APPEAL NO. 3373 of 2019
7. R/FIRST APPEAL NO. 3513 of 2019
8. R/FIRST APPEAL NO. 3563 of 2019
9. R/FIRST APPEAL NO. 4032 of 2019
10. R/FIRST APPEAL NO. 4571 of 2019
11. R/FIRST APPEAL NO. 5281 of 2019
12. R/FIRST APPEAL NO. 5282 of 2019
13. R/FIRST APPEAL NO. 6012 of 2019
14. R/FIRST APPEAL NO. 6013 of 2019
15. R/FIRST APPEAL NO. 6014 of 2019
16. R/FIRST APPEAL NO. 6047 of 2019
17. R/FIRST APPEAL NO. 6070 of 2019
18. R/FIRST APPEAL NO. 19 of 2020
19. R/FIRST APPEAL NO. 43 of 2020
20. R/FIRST APPEAL NO. 187 of 2020 15.3 In the following First Appeals, the said investment shall not be in cumulative fixed deposit and the claimant(s) shall be entitled to get periodical interest on the said FDRs.
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1. R/FIRST APPEAL NO. 2719 of 2019
2. R/FIRST APPEAL NO. 2024 of 2018
3. R/FIRST APPEAL NO. 2194 of 2019
4. R/FIRST APPEAL NO. 2917 of 2019
5. R/FIRST APPEAL NO. 2920 of 2019
6. R/FIRST APPEAL NO. 2918 of 2019
7. R/FIRST APPEAL NO. 3546 of 2019
8. R/FIRST APPEAL NO. 4288 of 2019
9. R/FIRST APPEAL NO. 5468 of 2019
10. R/FIRST APPEAL NO. 5971 of 2019
11. R/FIRST APPEAL NO. 6132 of 2019
12. R/FIRST APPEAL NO. 449 of 2020
13. R/FIRST APPEAL NO. 944 of 2020 15.4 In the following three appeals, though the claimants are served, they have chosen not to appear. For this reason, for the time being, it would be just and proper to invest the entire amount deposited by the Insurance Companies with the Tribunal in the cumulative fixed deposits, so that the amount earns interest and nobody looses it. This is with the clarification that, it would be open for the concerned claimant(s) to file appearance in the appeal and appropriate application for disbursement of the amount. Such a request shall be considered by the Court, on its own merits.
1. R/FIRST APPEAL NO. 2037 of 2018 Page 22 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT
2. R/FIRST APPEAL NO. 4034 of 2019
3. R/FIRST APPEAL NO. 4760 of 2019
16. In view of above, the following order is passed.
16.1 30% of the amount deposited by the Insurance Companies with the Tribunal is directed to be disbursed to the claimant(s). It shall be after due verification / identification of the claimant(s) and also in the prescribed procedure and further that it shall be by account payee cheques, drawn in favour of the concerned claimant(s). The said disbursement shall be subject to the final result of the appeal and further orders that may be passed by this Court.
16.2 The balance, 70% of the amount deposited by the Insurance Companies is directed to be invested in any nationalised bank. It may be at any branch, at the station where the Tribunal is functioning, as may be decided by the Tribunal. In the event, no nationalised bank is there at any such station, appropriate decision be taken by the concerned Tribunal, at which branch it should be invested, however in any case it has to be a nationalised bank only.
16.3 The said investment shall, initially be for a period of five years and the same shall be renewed from time to time, until the appeal is finally decided by this Court.
16.4 The said investment, including renewal thereof shall be with the further stipulation that, there shall not be any premature encashment of the said FDRs. No one, not even the Page 23 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT claimants shall be allowed to raise any borrowings against such investment or create any encumbrance on it in any manner.
16.5 It is further directed that, the said investment shall be in the joint name of the claimant(s) and the Registrar / Nazir of the concerned Tribunal (by designation). The name of the Registrar / Nazir (by designation) shall be kept, after that of the claimant(s).
16.6 It is directed that, while undertaking the procedure of the said investment with the bank, the Tribunal shall also forward a copy of this order to the concerned Bank for its record.
16.7 Original Fixed Deposit Receipt(s) shall be retained in the custody of the concerned Tribunal.
16.8 It is ordered that in the following Appeals, the above investment shall be in cumulative fixed deposit and the claimant(s) shall not be entitled to get periodical interest on the said FDRs.
1. R/FIRST APPEAL NO. 3115 of 2018
2. R/FIRST APPEAL NO. 3478 of 2018
3. R/FIRST APPEAL NO. 1528 of 2019
4. R/FIRST APPEAL NO. 1793 of 2019
5. R/FIRST APPEAL NO. 3313 of 2019
6. R/FIRST APPEAL NO. 3373 of 2019 Page 24 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT
7. R/FIRST APPEAL NO. 3513 of 2019
8. R/FIRST APPEAL NO. 3563 of 2019
9. R/FIRST APPEAL NO. 4032 of 2019
10. R/FIRST APPEAL NO. 4571 of 2019
11. R/FIRST APPEAL NO. 5281 of 2019
12. R/FIRST APPEAL NO. 5282 of 2019
13. R/FIRST APPEAL NO. 6012 of 2019
14. R/FIRST APPEAL NO. 6013 of 2019
15. R/FIRST APPEAL NO. 6014 of 2019
16. R/FIRST APPEAL NO. 6047 of 2019
17. R/FIRST APPEAL NO. 6070 of 2019
18. R/FIRST APPEAL NO. 19 of 2020
19. R/FIRST APPEAL NO. 43 of 2020
21. R/FIRST APPEAL NO. 187 of 2020 16.9.1 It is ordered that in the following Appeals, the above investment shall not be in cumulative fixed deposit. The claimant(s) shall be entitled to get periodical interest on the said FDRs.
1. R/FIRST APPEAL NO. 2719 of 2019
2. R/FIRST APPEAL NO. 2024 of 2018
3. R/FIRST APPEAL NO. 2194 of 2019
4. R/FIRST APPEAL NO. 2917 of 2019
5. R/FIRST APPEAL NO. 2920 of 2019 Page 25 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT
6. R/FIRST APPEAL NO. 2918 of 2019
7. R/FIRST APPEAL NO. 3546 of 2019
8. R/FIRST APPEAL NO. 4288 of 2019
9. R/FIRST APPEAL NO. 5468 of 2019
10. R/FIRST APPEAL NO. 5971 of 2019
11. R/FIRST APPEAL NO. 6132 of 2019
12. R/FIRST APPEAL NO. 449 of 2020
13. R/FIRST APPEAL NO. 944 of 2020 16.9.2 The above arrangement is with the further clarification that, though the investment is directed to be made in any nationalised bank at the station, where the Tribunal is functioning, for the purpose of getting periodical interest, the claimant(s) is at liberty to have his bank account with any bank / branch of his choice / convenience, which need not be a nationalised bank. The said account should however have ECS facility, so that interest can be credited in that bank / branch by the bank in which the amount is invested. It would be open for the claimant(s) to give appropriate instruction to the bank (where the amount is invested) to credit interest in his separately opened account, if he so desires. The said bank account (where the interest is to be credited) should not be permitted to be dealt with by any power of attorney holder, except in a given case, when it is in the name of any family member of the concerned claimant(s), if it is so required.
16.9.3 The above arrangement is with the clarification that, though the name of the Registrar / Nazir of the Tribunal Page 26 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT (by designation) would be there on the FDRs, the Registrar / Nazir would not have any say with regard to interest, including with regard to income-tax deducted at source or refund thereof.
16.10.1 In the following three appeals, though the claimants are served, they have chosen not to appear. For this reason, for the time being, it would be just and proper to invest the entire amount deposited by the Insurance Companies with the Tribunal in the cumulative fixed deposits, so that the amount earns interest and nobody looses it. This is with the clarification that, it would be open for the concerned claimant(s) to file appearance in the appeal and appropriate application for disbursement of the amount. Such a request shall be considered by the Court, on its own merits.
1. R/FIRST APPEAL NO. 2037 of 2018
2. R/FIRST APPEAL NO. 4034 of 2019
3. R/FIRST APPEAL NO. 4760 of 2019 16.10.2 The said investment shall initially be in the name of the Registrar / Nazir of the concerned Tribunal, with other stipulations as noted above. After the claimants appear in the Appeal, appropriate order would be passed by this Court with regard to disbursement and investment of the balance amount. At that time, the said investment may be ordered in the joint name of the claimants and the Registrar / Nazir of the Tribunal, as is done above.
16.11 The above investment shall be with the further Page 27 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020 C/FA/2719/2019 IA JUDGMENT
clarification / stipulation that, in the event the appeal is allowed by this Court (even in part) and a situation arises where, the amount deposited by the Insurance Companies, which is ordered to be invested in FDRs under the orders of this Court, need to be refunded to the concerned Insurance Company, no procedure like any No Objection from the concerned Claimant(s) or his representatives would be required and the said amount (part thereof, as the case may be) shall be refunded to the concerned Insurance Company, with interest accrued thereon, as may be ordered by the Court.
16.12 It is ordered that, the execution of the impugned judgments and awards passed by the respective Motor Accident Claims Tribunal is stayed during the pendency of the appeals, subject to the above conditions / stipulations / clarifications.
16.13 All these applications are allowed in above terms.
16.14 Copy of this judgment and order be retained on each file.
(PARESH UPADHYAY, J) MOBHATI/PS/02-28, 31-33 Page 28 of 28 Downloaded on : Sun Jun 14 23:40:32 IST 2020