Gujarat High Court
New vs Hasmukhbhai on 11 July, 2008
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/2911/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2911 of 2008
With
CIVIL
APPLICATION No. 7705 of 2008
=========================================================
NEW
INDIA ASSURANCE COMPANY LTD - Appellant(s)
Versus
HASMUKHBHAI
DHIRUBHAI PATEL & 1 - Defendant(s)
=========================================================
Appearance
:
MR
SANDIP C SHAH for
Appellant(s) : 1,
None for Defendant(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 11/07/2008
ORAL
ORDER
1. Heard learned advocate Mr. Sandip C. Shah appearing on behalf of appellant.
2. In the present appeal, appellant ? New India Assurance Company Ltd. has challenged the award passed by Motor Accident Claim Tribunal in MACP No.990 of 2003 dated 24th July 2007. The Tribunal has directed to appellant to pay Rs.25,000/- with other opponents jointly and severally with 7% interest from the date of application till realisation and order of disbursement will be passed after the amount being deposited by opponent No.2.
3. The respondent ? claimant has filed an application under Section 166 of the Motor Vehicle Act claiming the amount of compensation Rs.2,00,000/- with 18% interest. During the pendency of that application, respondent ? claimant has filed an application under Section 140 of the Motor Vehicle Act claiming Rs.25,000/- on the basis of no fault liability on 23rd April 2003 which has been examined by Tribunal vide Exh.3.
4. Learned advocate Mr. Shah raised contention before this Court that complaint was filed after a period of seven days from the date of accident, therefore, involvement of the vehicle is quite doubtful, therefore, award passed by the Tribunal is challenged. Except that, there is no other submissions made by learned advocate Mr. Shah.
5. I have considered the submissions made by learned advocate Mr. Shah. The accident occurred on 27th March 2003 at about 6-30 am near Shivranjani Char Rasta, within the limit of Satellite Police Station, by rash and negligent driving of Maruti Car No. GJ-2-A-7576, owned by opponent No.1. At the time of the accident the applicant was going on his scooter No. GJ-1-CN-6108. A complaint was filed before Satellite Police Station at I-C.R. No.252 of 2003. The complainants have produced the list of documents vide Exh.15 containing certified copy of complaint, panchnama of the site, insurance policy of the offending vehicle, which covers the risk period, injury certificate issued by Sushri Jashumatiben Shantilal Surti Charitable General Hospital, disability certificate issued by Dr. H.P. Maniar, etc. The appellant filed reply vide Exh.10 and mainly submitted before the Tribunal that involvement of the vehicle is quite doubtful. This aspect has been examined by Tribunal in detail in Para 5 which is quoted as under :
?S5. Mr. A.O. Chudger, LA, for opponent No.2 has raised objection to grant this application and has submitted that FIR is late by seven days and no charge-sheet is produced before this Tribunal and looking to the panchnama, vehicle is not found and therefore, involvement of the offending vehicle is quite doubtful. It is well settled that interim application U/s.140 of M.V. Act cannot be rejected on technical ground. In the present case FIR is late by seven days is no ground to reject the application and the applicant has stated the number of the offending vehicle. Though the accident has occurred on 27-3-2003 and panchnama is drawn on 4-4-2003, however, the number of the offending vehicle is clearly stated in the complaint sent through the post. Therefore, there is no substance in submitting that the involvement of the offending vehicle is doubtful.?S
6. Thereafter, Tribunal, looking to the documents on record and considering the decision of this Court that negligence of the vehicle cannot be seen while examining the matter under Section 140 of the Motor Vehicle Act, discussed in Para 6, which is quoted as under :
?S6. Looking to the documents on record, it appears that the applicant has established the involvement of the offending vehicle. So far as compensation u/s. 140 is concerned, the involvement of the vehicle is to be seen and at this juncture, negligence of the vehicle cannot be seen. While passing this order, this Tribunal has taken into account the ratio laid down in 1991 ACJ 777 (S.C.) in the matter of Shivaji D. Patil v. Vatschala Uttam, 2003(2) TAC 710 (Guj.) in the case of Payalben J. Yagnik Vs. J.G. Yagnik and 2003 ACJ 839 in the case of Oriental Insurance Co. Ltd. Vs. Chintharbhai Sibabhai (Coram : K.R.V. & H.K.R, JJ.). Therefore, the applicant is entitled to recover the amount of Rs.25,000=00 (Rs. TWENTY FIVE THOUSANDS ONLY) from the opponents jointly and severally with the interest at the rate of 7% p.a. within stipulated time, failing which, the applicant would be entitled to the interest at the rate of 8% p.a. from the date of petition till realization. Hence, I pass the following order.?S
7. The contention raised by learned advocate Mr. Shah that involvement of the vehicle in question is quite doubtful because FIR is filed late after a period of seven days, but, it cannot be said to be a ground of rejection and panchnama is drawn on 4th April 2003, where, the number of offending vehicle is clearly stated in the complaint sent through the post. Therefore, contention raised by learned advocate Mr. Shah cannot be accepted and same is therefore rejected.
8. I have perused the award passed by Tribunal looking to the reasoning given by Tribunal, according to my opinion, Tribunal has not committed any error which require interference by this Court. The finding given by Tribunal is based upon legal evidence. For having the doubt in the mind of Assurance Company, for that, there is no positive evidence produced by the appellant before the Tribunal. Therefore, award passed by Tribunal is quite just and proper and therefore, no interference is required by this Court.
9. The appellant is directed to deposit the awarded amount together with interest and cost before the Tribunal concerned within a period of one month from the date of receiving the copy of the said order. The registry is directed to immediately transmitted the amount which is deposited in this Court to the concerned Tribunal Thereafter, it is also directed to Tribunal that after realising the amount, 30% amount is to be paid to the respondent claimant by account payee cheque in the name of the claimant and remaining 70% amount is to be invested with cumulative interest in any nationalised bank with a periodical renewal till the application under Section 166 is decided by Tribunal. The FDR for 70% amount is in the name of claimant, but, original FDR is to be kept with Nazir of the concerned Tribunal.
10. It is also necessary to note that whatever amount has been awarded by the Tribunal under Section 140 of the Motor Vehicle Act, after all, it can be adjusted by the Tribunal at the time of final award passed in the application filed under Section 166 of the Act.
11. There is no substance in the present appeal. Accordingly, present appeal is dismissed.
12. When the main appeal is dismissed by this Court today, the Civil Application does not survive. Accordingly, Civil Application No.7705/08 is disposed of.
[H.K. RATHOD, J.] #Dave Top