Gujarat High Court
The vs Bhartiben on 12 August, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/7894/2009 2/ 27 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7894 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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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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THE
NEW INDIA ASSURANCE CO LTDREGISTERED OFFICE:87,MAHATMA -
Petitioner(s)
Versus
BHARTIBEN
SAMATHBHAI HERBHA - Respondent(s)
=========================================================
Appearance
:
MR
SUNIL B PARIKH for
Petitioner(s) : 1,
None for Respondent(s) : 1,
RULE SERVED for
Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.5,1.2.7
MR TUSHAR L
SHETH for Respondent(s) : 1.2.1, 1.2.2, 1.2.3,1.2.7
NOTICE SERVED
BY DS for Respondent(s) : 1.2.4,1.2.5
UNSERVED-EXPIRED (N) for
Respondent(s) : 1.2.6
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/08/2010
ORAL
JUDGMENT
Heard learned advocate Mr. SB Parikh on behalf of petitioner, learned advocate Mr. TL Sheth appearing for respondent claimant. Rule issued by this Court remained unserved to respondent no. 1/6, who was father of claimant. The claimant has given an application on 19/7/2008 before claims Tribunal, Gondal Camp at Upleta to delete original respondent no. 4 Raimalbhai Bhimabhai Herbha because he died on 28/1/2008. Therefore, permission was granted and respondent no. 1/6 was deleted from era of petition. Except respondent no. 1/6, all respondents have served but no appearance is filed by other respondent.
The brief facts of present petition are quoted as under:
The original claimant filed claim petition being MACP no. 29/2004 before Claims Tribunal Camp at Upleta claiming compensation of Rs. 7,00,000/- under section 166 of Motor Vehicle Act, 1988. The driver and owner served with notice of claim petition and appeared through engaging an advocate. The petitioner insurance company has filed an application under section 170 of Motor Vehicle Act and also filed one another application to permit insurance company to cross examine Doctors below exh 54 to contest claim on merits. The claims Tribunal vide exh 16 on the ground that provision of section 170 of Motor Vehicle Act would not be applicable to contest claim petition on behalf of insurance company on account of negligence and quantum. Therefore, 170 application preferred by petitioner insurance company has been rejected by claims Tribunal on 17/10/2006. The said order was not challenged at relevant time immediately by petitioner insurance company. The claims Tribunal has also rejected an application exh 54 on the ground that driver and owner of vehicle engaged an advocate and advocate has cross examined Dr. Dineshbhai. Therefore, insurance company has not permitted to cross examine doctors. In present petition, petitioner insurance company has challenged both orders exh 16 rejecting 170 application and exh 54 not to permit cross examination of doctors.
Learned advocate Mr. Parikh appearing for petitioner submitted that if driver and owner not effectively cross examined doctor in case of injury then insurance company is having right being a party to proceeding must have to be given an opportunity to cross examine doctors, which application has been wrongly rejected by claims Tribunal.
He submitted that 170 application made by petitioner before claims Tribunal, exh 16 has also been rejected on 17/10/2006 that order is also challenged in present petition. He submitted that two claim petitions were filed, one is MACP no. 258/2004 in respect to injury and another is MACP no. 29/2004 in respect to fatal case. The two doctors, one Mr. Dipakkumar Rashikbhai and another Mr. Dineshbhai Kanjibhai Gajerabhai were examined before claims Tribunal in support of claimant and advocate of driver and owner both have cross examined both doctors but insurance company was not permitted to cross examine them by claims Tribunal. Therefore, learned advocate Mr. Parikh has relied upon certain decision in support of his submission.
He relied upon decision of Apex Court in case of National Insurance Company Ltd Vs. Meghji Naran Sorathiya and Ors reported in 2009 (III) ACJ 1445. The relevant para 7 is quoted as under:
7.
There is prevalent view that a re-think on sections 149 and 170 of the Act is necessary. As noticed above, section 149 contemplates claim petitions being filed only against the driver and the owner, and the driver/owner alone contesting the claim on merits. The insurer is required to satisfy the award made by the Tribunal, even if it is not impleaded as a party to the claim proceedings. But in practice, the insurer is invariably made a party to the claim proceedings, presumably to avoid any kind of delay. It is also a reality that drivers who are primarily liable seldom contest the proceedings either because of their financial incapacity or because they know that the burden will be borne vicariously by the owner and by the insurer under the policy of insurance. It is also a reality that many of the owners do not appear and contest the claim proceeding, or even if they appear and file a reply, do not defend the claim by effectively cross-examining the claimant's witnesses and by leading defence evidence. Owners are complacent as they have an insurance cover and know that the insurer will bear the liability In practice, therefore, the insurer has to keep on goading the owner to contest the matter and place necessary evidence. Section 170 provides that if the driver/owner fail to contest the claim, the Tribunal may permit the insurer to contest the claim. But what, if the driver/owner file a reply but fail to effectively participate in the proceedings? What if the counsel for driver/owner are present but resort to only cursory cross-examination? What if the driver/owner do not at all lead defence evidence? What if there is a well planned collusion that does not meet the eye? Where the insurer does not get permission under Section 170, there is a reasonable chance of the defence to the claim being far from satisfactory. Judicial notice can also be taken of the fact there have been several false claims by the claimants in collusion with the owners/drivers of vehicles and/or police and/or doctors. The question raised is whether it is proper to prohibit the insurer, which is to bear the liability statutorily and contractually, from participating in the process of adjudication of liability and assessment of compensation? Or the statute having made the insurer directly liable to the claimants, should the insurer be given a direct right to contest the claim on merits without the technical requirement of permission? Should the insurer always be at the mercy of the owner to contest the claim? These are matters that invite serious consideration, particular by Parliament and Law Commission and other stakeholders. Be that as it may.
He also relied upon another decision of Division Bench of this Court in case of Oriental Insurance Co. Ltd vs. Rani Ben and Ors reported in 2008 ACJ 2436, where he submitted that it has been held by Division Bench of this Court rejection order of 170 permission application can be challenged by filing writ at an interlocutory stage or by challenging same in an appeal against final award. When not to grant permission under section 170 by claims Tribunal is that order is not challenged in interlocutory stage, which can be deprived the insurance company of its right to challenge such order in appeal under section 173 against final award. Therefore, it has been held that if an appeal preferred by insurance company then insurance company is entitled to challenge 170 order passed by claims Tribunal along with final award.
He also relied upon one decision of this Court in case of United India Insurance Co. Ltd Vs. Ishwarbhai Naranbhai Patel in SCA no. 3987/2007 dated 23/11/2009, where according to him, this Court has taken view after considering decision of Apex Court permit to cross examine claimant and witnesses produced by claimant. The view taken by this Court para 9 to 11 are much relevant, therefore, quoted as under:
9. Learned advocate for the petitioner-insurance company has relied on a decision reported in the case of Oriental Insurance Co. Ltd v/s Chintharbhai Sibabhai & Anr. 2004 (3) GLR 2018 wherein, in paragraph 14 it is held as under:
14. The Apex Court has considered the remedy available to the claimants under Sections 166 and 163A of the Motor Vehicles Act being alternative, but that does not mean that the nature and object of Section 163A is totally changed and the proceedings under Section 163A cannot be replaced by the provisions of Section 166 of the Act. There is vast difference between these two Sections. In one, there is full- fledged inquiry and unlimited compensation can be claimed by the claimants and in other case under Section 163A, the claimants are entitled to claim a limited compensation specified under Second Schedule of the Act. The Tribunal cannot go beyond the scope of the Second Schedule. Therefore, there is vast difference between the two sections, namely Sections 166 and 163A of the Act. Therefore, application submitted by the claimants under Section 163A either during the pendency of the application under Section 166 or not filing the application under Section under Section 166, and straightway filing application under Sections 163A of the Act will not alter the object and nature of the Section, and,therefore, while deciding an application under Section 163A, the Tribunal is duty-bound to observe the provisions while granting compensation to the claimants. Application under Section 163A cannot be tried as an application under Section 166 of the Act by the Tribunal. Therefore, the Insurance Company is not entitled to insist that the claimants shall have to prove negligence and the Insurance Company may be given an opportunity to disprove the said facts. Similarly, in respect of the income part also, the Insurance Company is not entitled to have any opportunity to lead any evidence or to move a right of cross- examination while deciding an application under Sections 163A would become nugatory.
10. Learned advocate has further submitted that the insurance company is not entitled to cross-examine any witnesses while deciding an application under Section 163A of the Act.
11. Having gone through the record, I find that there was collusion between the owner and insured vehicle in the proceeding before the tribunal. In my opinion, no injustice would be caused to the other side if the request is made by the petitioner to permit it to cross-examine the claimant and the witnesses is granted. Particularly, when the said right is restricted on the point of quantum only. However, it is made clear that the petitioner- insurance company is not entitled to cross-examine the other side on the aspect of negligence.
Learned advocate Mr. Parikh also relied upon one decision of Andhra Pradesh High Court in case of United India Insurance Co. Ltd Vs. Gorla Bondamma and Ors reported in 2007 ACJ 797. The relevant head note from aforesaid decision is quoted as under:
Motor Vehicles Act, 1988, section 170 Permission to insurance company to contest the claim on grounds open to owner of vehicle Insurance company pleaded that insured is not contesting the claim effectively and seriously before the Tribunal and sought permission to contest it on all grounds Claimants have no say in a petition under section 170- Claimants opposing the petition prima facie is a ground to presume collusion between insured and claimants Tribunal in exercise of its judicial discretion has to decide whether or not to grant permission Whether the Tribunal was justified in refusing to grant permission to insurance company under section 170 Held: no, permission is granted.
Except that no other submission is made by learned advocate Mr. Parikh in support of his case and no other decision has been relied by learned advocate Mr. Parikh in support of his submission.
Learned advocate Mr. TL Sheth appearing for respondent submitted that there is a delay in challenging order passed by claims Tribunal in 170 application exh 16 dated 17/10/2006. He submitted that more than three years delay in challenging such order. Therefore, present petition against challenge exh 16 should not have to be entertained. However, he submitted that 170 application of Motor Vehicle Act preferred by petitioner on 11/5/2005.
Learned advocate Mr. Sheth submitted that application for 170 permission was filed by petitioner on the basis of wrong presumption that driver and owner chosen not to appear inspite of summons have been served to both of them, which appears collusion between them, therefore, permission may be granted. But learned advocate Mr. Sheth submitted that before claims Tribunal driver and owner, both were remained present while engaging advocate. Thereafter they also cross examined claimant in detailed effectively. The both doctors Mr. Dipakkumar Rashikbhai and Mr. Dineshbhai Kanjibhai Gajerabhai also were cross examined by advocate of owner and driver effectively on merits.
He submitted that exh 63 witness from claimant Dr. Dipakkumar Rashikbhai was examined and on behalf of driver and owner cross examination has been made by advocate on merits by one proxy of advocate of owner and driver. One advocate Mr. Vipul Kakkad remained present, who was seriously cross examined him in detailed on merits. Similarly, he submitted that Dr. Dineshbhai Kanjibhai Gajerabhai was also cross examined vide exh 64 as witness no. 2 of claimant by advocate Mr. Vipul Kakkad on behalf of owner and driver on merits. They were cross examined on 13/11/2008. He submitted that after examining both doctors and cross examination was over which was made by Court Commissioner Shri Kalavadiyabhai, an evidence of both doctors were closed. Thereafter, on 28/11/2008, one application was given by petitioner with a request to permit insurance company to cross examine both doctors because they were not aware about examination of both doctors by Court Commissioner.
Learned advocate Mr. Sheth submitted that in such application no reason is given by insurance company that why they want to cross examine both doctors whether it was due to collusion between driver, owner and claimant or for any other reason or on the ground that Advocate of driver and owner has not cross examined them effectively. Therefore, Tribunal has fixed matter for hearing. Learned advocate Mr. Sheth submitted that claimant was also examined on affidavit on 19/7/2008 and it was cross examined by advocate Mr. Ranigabhai on behalf of owner and driver. On behalf of respondent no. 3 present petitioner, one advocate Mr. JB Doshi proxy has cross examined claimant on 19/7/2008. For appointment of Court Commissioner in respect to take evidences of both doctors, one application was made by advocate of claimant on 17/10/2008 and that application was allowed dated 23/10/2008 after giving reasonable opportunity of hearing to respective parties. Thereafter, both doctors were cross examined by Court Commissioner Mr. Kalavadiya. The report submitted by Court Commissioner to claims Tribunal on 28/11/2008 where it is made clear that on behalf of respondent no. 1 and 2 owner and driver, it was cross examined by advocate Mr. Vipulbhai Kakkad. Originally, Ranigabhai had appeared on behalf of owner and driver and by giving proxy to Mr. Vipulbhai Kakkad, who has cross examined both doctors as per report made by Court Commissioner.
He submitted that claims Tribunal has rightly examined matter and 170 application has been rejected on 17/10/2006, which order is not challenged to higher forum. Thereafter, request was made by insurance company to permit cross examination of doctors which has been rejected by order dated 23/1/2009.
He submitted that insurance company have no right to cross examine claimant and any witness on merits except ground which was available to petitioner Company under section 149 subsection 2 of Motor Vehicle Act. The application exh 54 made by insurance company which has been replied by claimant vide exh 55. According to claimant, once 170 permission has been rejected and there is no collusion between owner, driver and claimant then insurance company can not ask any question to claimant or his witness beyond the ground mentioned under section 149 subsection 2 of Motor Vehicle Act. Therefore, at the time when two doctors were examined, question of informing or communication to insurance company does not arise. While rejecting 170 application, claims Tribunal has made it clear that in present case apparently there is no collusion between owner, driver and claimant because owner and driver both were appeared through same advocate and reply was also submitted by original respondent no. 1 and 2 and also cross examine claimant and two witness Dr. Dipak Kumar Rashiklal and Dr. Dineshbhai. Therefore, considering this facts and also claims Tribunal has relied upon certain decisions of Apex Court reported in case of National Insurance Co. Ltd Vs. Nicolletta Rohtagi & Ors reported in 2002 ACJ 1950 (SC), in case of Shankarayya & another Vs. United India Insurance Co. Ltd & Anr reported in 1998 ACJ 513 (SC), in case of United India Insurance company ltd VS. Hasmukh Hirjibhai Chauhan & Ors reported in 2006 ACJ 1238 (GHC), in case of New India Insurance Company Ltd Vs. Kiritbhai Lalchand Shah & Ors reported in 2002 GLH 115 (DB). After considering aforesaid decision and relevant object and limited right of insurance company, it has been restricted by provision of section 149 (2) of Motor Vehicle Act and driver and owner both are appeared through their advocate and effectively cross examined claimant as well as both doctors. In light of this fact, 170 permission application is rejected, therefore, insurance company is not entitled to cross examine any witness including claimant in respect to merits means negligence and quantum. The evidence of both doctors are relevant for determining question of quantum.
Therefore, in absence of 170 permission, insurance company is not entitled to ask any question to both doctors in respect to quantum. So long 170 permission is rejected remained in existence, insurance company is not entitled to cross examine both doctors on merits means negligence and quantum. It is a case of injury, naturally an evidence of doctors must have to be reflected or having impact while deciding quantum by claims Tribunal. Therefore, insurance company ought not to have permitted ask any question to doctors except which covered by provision of section 149 (2) of Motor Vehicle Act. Therefore, exh 54 an application made by insurance company has been rejected on 23/1/2009. The claimant has filed an affidavit in reply against present petition where averment made in para 2 to 8, which are quoted as under:
2. I submit that the petition under Article 226 and 227 is not maintainable, as neither apparent error committed by the Trial Cort nor the order is without jurisdiction.
3. I submit that Ex. 16 application preferred by the petitioner under Sec. 170 of the Motor Vehicles Act was rejected by the Tribunal on 17/10/2006. I further submit that the petitioner has misguided the Honourable Court mentioning the date of order 23/1/2009 below application exh 54 and 16; the petitioner can't challenge the order passed below Ex.
54, when the application at Ex. 16 preferred under Sec. 170 of the Act was rejected before 2 years and 10 months.
4. I submit that not a single word is written explaining such a gross delay of 2 years and 10 months in challenging the order passed below Ex. 16, on the contrary the petitioner misguided the Hon'ble Court by mentioning the date 23/1/2009 as if common order is passed below Ex. 16 and 54.
5. I submit that in the claim petition, driver and owner (resp. nos. 4 and 5) filed their written statement at Ex. 12 on 19/4/2004 thereby contested the claim. I submit that in the application at Ex. 16 dated 24/5/2004 it is averred that the insured and driver of the subject vehicle have chosen not to appear and contest the claim of the claimant by remaining absent which appears to be due to collusion between them. This was false averment in the application preferred under Sec. 170 of the Act.
6. I submit that the application under Sec. 170 of the Act is rejected and the driver and owner (resp. nos. 4 and 5) contested the claim; so the insurer can't content a claim of a claimant on quantum and negligence and the insurer could contest the claim only on statutory defences available under Sec. 149 (2). I rely upon the following decisions in support of my aforesaid contention and copies of the said decisions are annexed at Annexure R1 Colly.
I. ACJ 2002 S.C. 1950 National Ins.
Co. Ltd Vs. Nicolletta Rohtagi II. ACJ 1998 S.C. 513, Shankarayya Vs. United India Ins. Co. Ltd.
7. I submit that my son died in the accident, the claim petition is for fatal case and the P. M. report is exhibited at Ex. 45 as advocate of the petitioner company made endoresement of no objection on documentary evidence list in exhibiting the documents of serial nos. 1 to 12. So, question of examining the Doctor who performed P. M. would not arise and there can't be cross examination of Doctor when the Doctor who performed P.M. is not at all examined. So, the application at Ex. 54 is frivolous.
8. I submit that heavy cost is required to be awarded in the matter as I have been unnecessary dragged before this Hon'ble Court in my old age. I submit that the petition is frivolous and it is wastage of public money.
Learned advocate Mr. Sheth has relied upon decision of Apex Court in case of National Insurance Company ltd Vs. Nicolletta Rahtagi and Ors reported in 2002 ACJ 1950. The Apex Court has considered defence available to insurance company in claim petition when 170 permission is not granted or grant by claims Tribunal in favour of insurance company. Therefore, whether it is permissible for insurance company to file an appeal questioning quantum of compensation and finding of negligence or contributory negligence of offending vehicle, the answer is given by Supreme Court NO and it has been held that insurer can not avoid its liability on another ground except it is mentioned in subsection 2 of section 149 of Motor Vehicle Act. Earlier decision on this very subject in case of United India Insurance Co. Ltd Vs. Bhusan Sachdeva reported in 2002 ACJ 333 has been overruled by Apex Court. If appeal is not available to insurance company in absence of 170 permission other than ground mentioned in subsection 2 of section 149 of Motor Vehicle Act, then naturally in claim petition also insurance company is not entitled to ask any question to both doctors when 170 permission is not granted in respect to merits means negligence and quantum. The relevant observation made by Apex Court in above referred decision in case of National Insurance Co. Ltd VS. Nicolletta Rohtagi reported in 2002 ACJ 1950, in para 15 to 19 and 29 are quoted as under:
15. It is relevant to note that Parliament, while enacting subsection (2) of section, 149 only specified some of the defenses while are based on conditions of the policy and, therefore, any other breach of conditions of the policy by the insured which does not find place in subsection (2) of Section 149 can not be taken as a defence by the insurer. If Parliament had intended to include the breach of other conditions of the policy as a defence, it could have easily provided any breach of conditions of insurance policy in subsection (2) of section 149. If we permit the insurer to take any other defence other than those specified in subsection (2) of section 149, it would mean we are adding more defences to insurer in the statute which is neither found in the Act nor was intended to be included.
16. For the aforesaid reasons, we are the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in subsection (2) of section 149 of 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds.
17. Before proceeding further, it may be noticed that while 'the Motor Vehicles Act, 1939' was in force, section 110 C (2-A) was inserted therein in the year 1970 which corresponds to section 170 of the 1988 Act. The said provision provides that in court of an inquiry of a claim if the Tribunal is satisfied that there is a collusion between the claimant and the insured or the insured fails to contest the claim, the Tribunal for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall there upon have, without prejudice to the provisions contained in subsection 2 of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
18. The aforesaid provisions show two aspects. Firstly, that the insurer has only statutory defences available as provided in subsection (2) of section 149 of 1988 Act and secondly where the Tribunal is of the view that there is a collusion between the claimant and the insured, or the insured does not contest the claim, the insurer can be made a party and on such impleadment the insurer shall have all defences available to it. Then comes the provisions of section 173 which provides for an appeal against the award given by the Tribunal.
Under section 173, any person aggrieved by an award is entitled to prefer an appeal to the High Court. Very often the question has arisen as to whether an insurer is entitled to file an appeal on the grounds available to the insured when either there is a collusion between the claimants and the insured or when the insured has not filed an appeal before the High Court questioning the quantum of compensation. The consistent view of this Court had been that the insurer has right to file an appeal to challenge the quantum of compensation or finding of the Tribunal as regards the negligence of contributory negligence of the offending vehicle.
19. In Shankarayya Vs. United India Insurance Co. Ltd., 1998 ACJ 513 (SC), it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in section 170 are found to be satisfied and for that purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company can not have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.
29. For the aforesaid reasons, as well as that the learned Judges in United India Insurance Co. Ltd., 2002 ACJ 333 (SC), have failed to notice the limited grounds available to an insurer under section 149 (2) of the Act, we are of the view that the decision in United India Insurance Co. Ltd (supra) does not lay down the correct view of law.
In respect to application given by petitioner insurance company under section 170 of Motor vehicle Act dated 11/5/2006 based on incorrect facts and wrong presumption to have collusion between owner and driver and claimant. Basically, facts stated in para 1 of that application itself is found to be incorrect as noted by Tribunal in its order that according to record of case, opponent no. 1 and 2 owner and driver both have engaged lawyer namely Mr. Raniga for their defence and on their behalf, claimant was cross examined. Therefore, ingredients of section 170 is not satisfied by insurance company looking to facts which are on record and no presumption can be drawn being collusion between owner and driver and claimant. The owner and driver both have engaged independently advocate Mr. Raninga for their defence. The written statement was filed by both opposing claim petition on merits not only that but claimant was fully cross examined by advocate Mr. Raninga. On behalf of owner and driver, both doctors were also cross examined by advocate of driver and owner. In light of this factual aspect based on record, 170 permission application has been rejected. For that relevant provision 170 is quoted as under:
170. Impleading insurer in certain cases. - Where in the course of any inquiry, the Claims Tribunal is satisfied that -
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in subsection (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
The aforesaid section must have to be satisfied by claims Tribunal during course of inquiry that there is a collusion between person making claim and person against whom claim is made and person against whom claim is made has failed to contest claim. In such circumstances only permission is to be granted to insurance company to challenge or raise defence in respect to negligence and quantum. Looking to aforesaid provision and facts which are found from record, claims Tribunal has rightly considered object and provision of section 170 of Motor Vehicle Act and looking to facts on record, driver and owner both have engaged separate independent advocate Mr. Ranigna, who has cross examined claimant as well as both doctors.
Therefore, considering this facts according to my opinion, averment made in application by insurance company as referred above on 11/5/2005 is absolutely incorrect and contrary to record. That facts have been rightly considered by claims Tribunal and 170 application has been rightly rejected. For that, according to my opinion, claims Tribunal has not committed any error which would require interference by this Court. The decision of this Court which has been relied by learned advocate Mr. Parikh in SCA no. 3987/2007 dated 23/11/2009 where according to insurance company it realize that there was a collusion between claimant and owner of insured vehicle and it was claim petition filed by claimant under section 163 A of Motor Vehicle Act, but in fact of present case claimant has filed claim petition under section 166 of Motor Vehicle Act. The decision of this Court as referred above are not supporting submission made by learned advocate Mr. Parikh and facts which are on record of present case are altogether different then decided by this Court in aforesaid decision. Therefore, decision of this Court which has been relied by learned advocate Mr. Parikh is not helpful to him. In light of this back ground and considering both order passed by claims Tribunal exh 16 and 54 in Motor accident claim petition 29/2004, one is dated 17/10/2006 and another is 23/1/2009 according to my opinion claim Tribunal has not committed any error while passing both orders which would require any interference by this Court while exercising power under article 227 of constitution of India.
I fail to understand why insurance company has submitted an application before claims Tribunal for giving an opportunity to cross examine both doctor who was examined by Court Commissioner and what is purpose behind it, which has not been made it clear by insurance company before claims Tribunal. Both Doctors have examined to justify injury and percentage of disability received by claimant which having impact on amount of compensation. When application was made by insurance company before claims Tribunal on 28/11/2008 at that occasion, 170 permission rejected on 17/10/2006 was in existence and not set aside by any higher forum because same was not challenged to higher forum. So in light of rejection of 170 permission, claims Tribunal has rightly rejected application exh 54 submitted by insurance company with request to give an opportunity to cross examine both doctors which has been rightly rejected by claims Tribunal. The claims Tribunal has given detailed reasoned in support of its conclusion. Therefore, otherwise, also there is no substance in present petition filed by petitioner. Apparently this Court is having impression that just to delay in deciding claim petition finally, probably this petition has been filed which is having no substance at all because order dated 17/10/2006 has been challenged by petitioner after a period of three years.
According to my opinion, claims Tribunal has rightly exercised jurisdiction and not committed any error which is found apparently from face of record, which would require interference by this Court while exercising power under article 227 of Constitution of India. The decision which has been relied by learned advocate Mr. Parikh are not applicable to facts of present case and same are not helpful and supported to submission made by learned advocate Mr. Parikh.
Hence, there is no substance in present petition, accordingly same is dismissed. Ad interim relief granted by this Court on 19/11/2009 is required to be vacated with a direction to Motor Accident Claims Tribunal, Rajkot District at Gondal Camp, Upleta to decide both claim petitions being no. 258/2004 and 29/2004 as early as possible considering date of incident 31/10/2003 within a period of six months from date of receiving copy of said order and to see that matters must have to be over on or before completion of six months from date of receiving copy of present order. Let both parties may give co-operation in deciding both petitions. Rule is discharged. Ad interim relief if any stand vacated.
(H.K.RATHOD, J) asma Top