Bachiben Wd/O Chhaganbhai ... vs Shankarbhai Mansingbhai Rathod

     C/FA/2411/2022                               ORDER DATED: 21/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2411 of 2022

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         BACHIBEN WD/O CHHAGANBHAI DHULABHAI RATHOD
                            Versus
               SHANKARBHAI MANSINGBHAI RATHOD
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
for the Defendant(s) No. 1,2
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 21/02/2023

                               ORAL ORDER

1. In this appeal, challenge is to the judgment and award dated 8.6.2018 passed by Motor Accident Claims Tribunal (Aux), Dahod, in Motor Accident Claims Petition No.299 of 2013 primarily on the ground that learned Tribunal has wrongly excluded interest for the period from 10.7.2014 to 30.4.2018.

2. Mr.Bhalodi, learned advocate for the appellants has placed reliance on decision in the case of Oriental Insurance Company Limited v. Aminaben Rahimbhai Kadiwala and others reported in 2001 (2) GLR 1108 to contend that the insurance company cannot contend before the Tribunal that no interest would be payable to the claimants for the period during which the insurance company was not impleaded. While drawing the attention of this Court, Mr.Bhalodi submitted that actually it is not the insurance company, who had pleaded any such defence but the Tribunal on its own by an administrative order dated 10.7.2014 had curtailed right of the claimants and, Page 1 of 5 Downloaded on : Fri Feb 24 20:42:32 IST 2023 C/FA/2411/2022 ORDER DATED: 21/02/2023 by such order the Tribunal has closed the right till the stage of adducing evidence.

2.1 Mr.Bhalodi further submitted that the petition was filed on 25.9.2013, while the issues were framed on 4.4.2018 and on the very same day, the petitioners-claimants had filed the list of documents along with affidavit. Mr.Bhalodi submitted that there is no delay from the claimants' side and such order, curtailing the rights of the claimants, could not have been passed by the Tribunal.

3. Mr.Meena, learned advocate for the insurance company submitted that such administrative orders are passed only on the basis of judicial observations made by learned Principal District Judge, while conducting Motor Accident Claim Petitions, where concerned lawyers have not remained vigilant to prosecute the matters and it has increased the burden of the insurance company of paying interest.

4. In the case of Aminaben Rahimbhai Kadiwala (supra), while considering the provision of Section 149 (2) of the Motor Vehicles Act, it is observed as under:-

"7. We have also examined the provisions of Section 149(2) of the Motor Vehicles Act. It reads as under :

Section 149(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless before the commencement of the proceedings in which the Page 2 of 5 Downloaded on : Fri Feb 24 20:42:32 IST 2023 C/FA/2411/2022 ORDER DATED: 21/02/2023 judgment or award is given the insurer had notice through the Court or as the case may be the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :....."

8. Plain meaning of the opening words "no sum" under this provision has to be strictly interpreted. If this is the intention of the legislature that no sum is payable, then, it is difficult to understand the logic that the compensation is payable by the insurance company but not interest. What is the intention of the legislature in enacting this provision is that if the notice is not given to the insurance company, the insurance company has a right to approach the tribunal for impleadment and after the insurance company is impleaded, it can defend the action on the grounds enumerated under this sub-

section. Learned single Judge has not taken care of the provisions of Section 149(2) of the Act, and therefore, we are unable to accept the contention of the learned Counsel for the appellant that the interest is not payable by the insurance company for the period the insurance company was not impleaded."

C/FA/2411/2022 ORDER DATED: 21/02/2023

5. The contention raised before the Division Bench in aforesaid case that the insurance company cannot be made liable to pay interest during the period, the insurance company was not impleaded, was not uphold by Division Bench. The plain meaning of the opening words "no sum" under this provision has to be strictly interpreted. If this is the intention of the legislature that no sum is payable, then, it is difficult to comprehend that the compensation would be payable by the insurance company but no interest thereof.

6. Here in this case, period of recovery of interest between 10.7.2014 to 30.4.2018 was curtailed by an administrative order of the Tribunal. Learned Tribunal could have rather framed the issues and asked the parties to adduce the evidence. While Record and Proceedings show that on 4.4.2018 issues were framed and, on the very same day, the claimants have produced evidence on record and even examination-in-chief by way of affidavit. Judgment of Aminaben Rahimbhai Kadiwala (supra), does not even permit the insurance company to raise such a plea of non- payment of interest on the compensation amount granted, even on the ground that they had not been impleaded as party throughout and, therefore, they cannot be made liable to pay the amount towards interest on the compensation granted or to be granted in their absentia on record. In view of proposition of law laid down, administrative order of the Tribunal on its own is erroneous on the face of it.

7. In view of above observations, present appeal is allowed. Impugned judgment and award dated 8.6.2018 passed by Page 4 of 5 Downloaded on : Fri Feb 24 20:42:32 IST 2023 C/FA/2411/2022 ORDER DATED: 21/02/2023 Motor Accident Claims Tribunal (Aux), Dahod, in Motor Accident Claims Petition No.299 of 2013, excluding interest for the period from 10.7.2014 to 30.4.2018 is set aside. Accordingly, the impugned judgment and award is modified to aforesaid extent. Insurance company is directed to pay interest for the said period from 10.7.2014 to 30.4.2018 to the claimants, on the amount as ordered by the Tribunal. It is directed that such amount be deposited before the Tribunal within a period of six weeks from today. Record and Proceedings, if lying here, be sent back to the concerned Tribunal forthwith.

(GITA GOPI,J) R.S. MALEK Page 5 of 5 Downloaded on : Fri Feb 24 20:42:32 IST 2023