Gujarat High Court
Reliance vs Nareshkumar on 25 January, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/75/2010 5/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 75 of 2010
With
CIVIL
APPLICATION No. 508 of 2010
In
FIRST APPEAL No. 75 of 2010
=========================================================
RELIANCE
GENERAL INSURANCE COMPANY LIMITED - Appellant(s)
Versus
NARESHKUMAR
BALBIRSINGH & 4 - Defendant(s)
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Appearance
:
MR
VIBHUTI NANAVATI for
Appellant(s) : 1,
None for Defendant(s) : 1 -
5.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 25/01/2010
ORAL
ORDER
1. Heard learned advocate Mr.Vibhuti Nanavati for appellant Insurance Co.
2. In present appeal, the appellant Insurance Co. has challenged interim award passed by claims Tribunal, Panchmahals at Godhara in MACP No.508 of 2007 vide Exh.6 under Section 140 of the MV Act whereby claims Tribunal has awarded Rs.25,000/- being a compensation on basis of 'no fault liability' by an order dated 21.11.2009.
3. Learned advocate Mr.Vibhuti Nanavati submitted that claims Tribunal ought to have relied on the copy of complaint (Mark 7/1) which clearly shows that at the time of the accident, there were around 26 persons travelling in Atul Shakti Auto rickshaw bearing registration No.GJ-17-U-5297. The claim Tribunal ought to have appreciated that Atul Shakti Auto rickshaw was insured with appellant Insurance Co. as per RC Book (Mark 7/7), the permitted sitting capacity was 3 + 1 persons. Therefore, it was a case of specific breach of policy condition by driver-owner-insured. He submitted that claims Tribunal has failed to interpret the driving licence of opponent No.1 driver owner insured of the rickshaw insured with appellant as he was not holding badge to drive the insured type of public service vehicle at the time of the accident. Therefore, the driver was not holding valid and effective driving licence at the time of the accident. The decision which has been relied by claims Tribunal reported in 2007 (O) GLHEL (SC) 219600 in case of Kedarnath Kunjilal Agrawal v. GSRTC is not applicable to facts of present case. The claims Tribunal has committed an error in relying upon decision of Apex Court in case of Oriental Insurance Co. Ltd. v. Zahrulnissa reported in 2008 (2) TAC 801 because in facts of this case, claimant was not third party in view of decision reported in 2008 (4) Scale
575. He further submitted that when there is a willful breach then there is no liability of Insurance Co. to indemnify insured. The claims Tribunal ought to have decided all the 26 claims together and not in a piecemeal manner. The defence raised by Insurance Co. in Para.4 of the written statement that claimant has not supplied the documents with the notice / summons of the claim petition which has been attached by him along with list Exh.7 which is mandatory requirement as per Rule 231 of the Gujarat Motor Vehicle Rules,1989. The decision of Apex Court in case of Smt.Yallawa & Ors. v. National Insurance Co. Ltd. & Anr. reported in 2007 ACJ 1934 and in case of New India Assurance Co. ltd. v. Rashnaben Rahemansha Fakir & Anr. reported in (2008) 8 SCC 253. Therefore, he submitted that claims Tribunal has committed an error in deciding application u/s.140 of MV Act and objections raised by Insurance Co. has not been dealt with by claims Tribunal.
4. I have considered submissions made by learned advocate Mr.Nanavati and also perused the interim order passed by claims Tribunal, vide Exh.6 dated 21.11.2009. As per the pleadings the applicant was travelling in rickshaw chhakado bearing No.GJ-17-U-5297 and was going from village Bedhiya to Kalol and at that time, opponent No.1 came driving truck No.HR-58-A-4555 and dashed with rickshaw due to which applicant sustained injury. The applicant has produced certain documents as referred in Para.3 of the award. On basis of aforesaid documents, applicant has claimed Rs.25,000/- on basis of 'no fault liability' with interest.
5. It was contended by learned advocate Mr.V.B.Trivedi appearing on behalf of Insurance Co. before claims Tribunal that there is no name of the claimant mentioned in complaint. There is no nexus between the injury and the accident. That 12% disability is also challenged. There is no endorsement about period in the driving licence which requires. The driver did not have driving licence of the truck as there is no endorsement that during which period the licence was in force. Therefore, Insurance Co. is not liable to pay any amount of compensation. Same contention was raised by another Insurance Co. before claims Tribunal relying upon decisions of Apex Court in case of Smt.Yallawa as well as Rashnaben Rahemansha Fakir & Anr., as referred above. The owner of rickshaw represented by an Advocate Mr.Vijay Pathak but, no written statement was filed. Even respondent Nos.1 and 2 though appeared through Advocate Mr.H.B.Makwana. But no written statement was filed. Even advocate not remained present when matter was argued. The claims Tribunal has examined some extent merits of the matter while deciding application u/s.140 of MV Act and relied upon decision of Apex Court in case of Zahrulnissa (supra) and also in case of Smt.Yallawa as well as Rashnaben Rahemansha Fakir & Anr. were, according to claims Tribunal, not applicable to facts of present case and come to conclusion that drivers of both vehicles were holding effective driving licence which is prima facie proved. The claims Tribunal has also considered definition of 'goods vehicle, heavy goods vehicle or public vehicle' which can be commonly called as transport vehicle. Thereafter, claims Tribunal come to conclusion that ingredients of 140 has been satisfied by claimant. Therefore, at this stage, it is not necessary to enter into merits as to who is liable for the accident, because claim is on the basis of 'no fault liability'. Accordingly, award has been passed on 21.11.2009.
6. The claimant has filed application u/s.166 of MV Act claiming compensation from respondent - present appellant. The question is that at this stage, contentions which are raised by learned advocate Mr.Nanavati can be considered by this Court that interim award is not passed by claims Tribunal in accordance with law, then this appeal is required to be admitted by this Court. If this appeal is admitted by this Court then it will remain pending till application u/s.166 of MV Act is finally decided by claims Tribunal concerned. Therefore, in spite of that, if this appeal is disposed of by this Court without expressing any opinion on merits with a direction to appellant Insurance Co. to deposit entire awarded amount together with cost and interest before claims Tribunal, Panchmahals at Godhara and no disbursement is made in favour of claimant,, which will meet ends of justice between the parties.
7. Accordingly, present first appeal is disposed of without expressing any opinion on merits, with a direction to appellant Insurance Co. to deposit entire awarded amount together with cost and interest before claims Tribunal, Panchmahals at Godhara within a period of one month from date of receiving copy of this order.
8. After realizing said amount from Insurance Co., claims Tribunal is directed to invest entire amount with cumulative interest with any nationalized bank till application u/s.166 of the MV Act is decided by claims Tribunal and no amount is disbursed in favour of claimants. However, in case if ultimate decision is in favour of appellant Insurance Co., then such amount which has been invested with accruing interest to be refunded to appellant Insurance Co. by claims Tribunal concerned. It will be open for the claimant to recover amount being a joint and several liability from Insurance Co. of Truck National Insurance Co. Ltd.
9. The claims Tribunal is directed to decide the application u/s.166 of the MV Act without being influenced by interim order dated 21.11.2009 passed under Section 140 of the MV Act and to decide it independently on the basis of evidence on record and in accordance with law, as early as possible.
10. Today, this Court has disposed of first appeal and, therefore, no order is required to be made on civil application for stay, therefore, civil application for stay is disposed of accordingly.
11. Amount, if any, deposited by appellant in the Registry of this Court be transmitted to claims tribunal concerned immediately.
(H.K.RATHOD,J.) (vipul) Top