Gujarat High Court
National vs Chandubhai on 19 September, 2008
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/3166/2000 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3166 of 2000
With
CIVIL
APPLICATION No. 10950 of 2000
In
FIRST APPEAL No. 3166 of 2000
=========================================================
NATIONAL
INSURANCE CO LTD. - Appellant(s)
Versus
CHANDUBHAI
DHULABHAI SOLANKI & 1 - Defendant(s)
=========================================================
Appearance
:
MR
DAKSHESH MEHTA for
Appellant(s) : 1,
NOTICE UNSERVED for Defendant(s) : 1,
RULE
UNSERVED for Defendant(s) : 1,
NOTICE SERVED BY DS for
Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 19/09/2008
ORAL
ORDER
Heard learned Advocate Mr. Mehta for appellant.
This appeal is admitted by this court and notice of rule has remained unserved for respondent no.1 and it has been served for respondent no. 2.
In this appeal, appellant has challenged interim award made by claims tribunal concerned in MACP No. 556 of 2000 dated 9th August, 2000 wherein claims tribunal has awarded interim compensation of Rs.25000.00 to claimants under sec. 140 of the MV Act, 1988 with 12 per cent interest thereon from date of application till date of payment to claimant.
Learned Advocate Mr. Mehta for appellant submits that claims tribunal has committed an error in not deciding objection raised by insurance company while deciding 140 Application. He specifically submitted that claims tribunal ought to have appreciated that driver of vehicle which had met with accident was not possessing valid driving licence to drive vehicle at the time of accident. He submits that such contention though raised in written statement was not considered by the claims tribunal. He relied upon decision of apex court in Yallwwa v. National Insurance Company Limited, (2007) 6 SCC 657, para 10 and submitted that apex court has decided this issue by holding that claims tribunal must have to examine objections/defences raised by insurance company while deciding an application under sec. 140 of the MV Act, 1988.
I have considered submissions made by learned Advocate Mr. Mehta for appellant. I have also perused impugned award made by claims tribunal in an application under sec.140 of the MV Act, 1988.
Application filed by claimants under sec. 166 of MV Act, 1988 is pending before claims tribunal and this appeal is arising from interim award made by claims tribunal. According to my opinion, whatever amount awarded by claims tribunal in impugned award is, after all, subject to adjustment in final award that may be passed by claims tribunal in the main application under sec. 166 of MV Act, 1988. Therefore, so long as application under sec. 166 of the MV Act, 1988 is not decided by claims tribunal, even if this appeal is admitted, it has to remain pending without any further process, therefore, instead of that, according to my opinion, it would be just and proper if this appeal is disposed of by this court without expressing any opinion on merits of the matter.
Therefore, this court is of opinion that this first appeal can be disposed of while protecting interest of insurance company. This court is having opinion that it would be just and proper to dispose of this appeal without expressing any opinion on merits while directing insurance company to deposit entire amount as per impugned award together with interest and costs and from such deposits made by appellant, only 30% is to be disbursed to claimant and remaining amount is to be invested in any nationalized bank initially for a period of three years, with periodical renewal with cumulative interest from time to time till main application under sec. 166 of the MV Act, 1988 is decided by claims tribunal while clarifying that claimant will not be entitled to any interest on such deposit. This Court is of opinion that if such directions are issued while disposing of this appeal without expressing any opinion on merits, same would met ends of justice and same would also sufficiently protect interest of insurance company as 70% amount of award would remain in fixed deposit to be renewed from time to time till main application is decided by claims tribunal.
Therefore, considering aforesaid facts and back ground of matter, present appeal is disposed of without expressing any opinion on merits and it is directed to insurance company to deposit entire amount as per award together with interest and costs and from such deposits made by appellant insurance company, claims tribunal is directed to pay only 30% to claimant by way of an account payee cheque and remaining amount is to be invested in any nationalized bank initially for a period of three years, with periodical renewal with cumulative interest from time to time till main application under sec. 166 of the MV Act, 1988 is decided by claims tribunal while clarifying that the claimant will not be entitled to any interest on such deposit. Though FDRs will be in name of claimants, custody thereof shall remain with Nazir of claims Tribunal till main application under sec. 166 of the MV Act is decided by claims tribunal concerned and claimants shall also not be entitled to withdraw the main application under sec. 166 of the MV Act and shall not abandon same but claims tribunal shall have to decide main application without being influenced by orders passed by this court, independently as this court has not expressed any opinion on merits of matter and such disposal of this appeal shall not come in way of appellant in raising all contentions available to it as per law before claims tribunal at the time of disposal of main application under sec. 166 of the MV Act, 1988. With these observations and directions, this appeal stands disposed of without expressing any opinion on merits.
Civil Application for stay stands disposed of accordingly in view of orders passed by this court in main matter. Amount, if any, deposited by appellant in registry of this court be transmitted to claims tribunal immediately.
(H.K. Rathod,J.) Vyas Top