C/SCA/12609/2018 ORDER DATED: 13/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12609 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 12792 of 2018
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ICICI LOMBARD GENERAL INSURANCE
Versus
SANJAYBHAI MANILAL CHAUHAN & 3 other(s)
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Appearance:
MR SUNIL B PARIKH(582) for the Petitioner(s) No. 1
MR.HIREN M MODI(3732) for the Respondent(s) No. 1,2
RULE SERVED BY DS for the Respondent(s) No. 4
UNSERVED REFUSED (R) for the Respondent(s) No. 3
MR HG MAZMUDAR for the Respondent(s) No.
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/03/2023
ORAL ORDER
1. Pursuant to the order dated 29.08.2018, learned advocate Mr. H. G. Mazmudar appears for the United India Insurance Co. Ltd. and has already filed his Vakalatnama.
2. Challenge in these petitions is to the judgments and awards dated 21.04.2018 passed in Motor Accident Claim Petition Nos. 410 of 2012 and 409 of 2012 by the learned Motor Accident Claims Tribunal (Auxiliary), Panchmahals at Godhra (the Tribunal).
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C/SCA/12609/2018 ORDER DATED: 13/03/2023
3. Heard, learned advocate Mr. Sunil B. Parikh for the petitioner - ICICI Lombard General Insurance, learned advocate Mr. Hiren Modi for the original claimants and learned advocate Mr. H. G. Mazmudar for the United India Insurance Co. Ltd. 3.1 It is submitted by the learned advocate for the petitioner that learned Tribunal, after considering the evidence on record, has assessed 80% liability of the driver of the Tempo bearing registration No. GJ-17-W-3872 and 20% of the driver of the Rickshaw bearing registration No. GJ-17-TT-0118. Further, it is observed in the impugned judgments and awards that the driver, owner and the insurance company of the Rickshaw are not joined as party respondents. While, learned advocate for the petitioner submitted that in Motor Accident Claim Petition No. 465 of 2012, which was arising out of the same accident, the driver, owner and insurance company of the Rickshaw were joined as party respondents. It is submitted that in the case on hand also, applications Exh. 14 were moved for joining the driver, owner and insurance company of the Rickshaw as party respondents, and the said applications, though fixed for hearing, remained undecided and the Tribunal, oblivious of the said fact, has passed the final orders. It is further stated at bar that the judgment and award passed in Motor Accident Claim Petition No. 465 of 2012 Page 2 of 5 Downloaded on : Tue Mar 14 20:59:44 IST 2023 C/SCA/12609/2018 ORDER DATED: 13/03/2023 has not been challenged by any of the insurance companies. The negligence has been apportioned accordingly in the line as was decided in Motor Accident Claim Petition No. 465 of 2012 and the observations has been reflected below Issue No. 1. 3.2 It is submitted that by orders dated 29.08.2018 passed in the captioned petitions, the United India Insurance Co. Ltd. has been served with the notice and is represented by learned advocate Mr. H. G. Mazmudar. It is further requested that necessary orders be passed to amend the awards, to be in consonance with the judgment and award rendered in Motor Accident Claim Petition No. 465 of 2012.
4. Learned advocate Mr. H. G. Mazmudar for the United India Insurance Co. Ltd. has fairly conceded that no challenge has been given to the judgment and award passed in Motor Accident Claim Petition No. 465 of 2012 and further, having gone through the observations made in the impugned judgments and awards, has candidly stated that, 20% negligence has been attributed to the driver of the Rickshaw.
5. The said vehicle involved (Rickshaw) was insured with the United India Insurance Co. Ltd. which fact is also corroborated Page 3 of 5 Downloaded on : Tue Mar 14 20:59:44 IST 2023 C/SCA/12609/2018 ORDER DATED: 13/03/2023 through the judgment and award passed in Motor Accident Claim Petition No. 465 of 2012, which is produced on record. The insurance company as well as the owner and driver are necessary parties. The Tribunal has erred in not hearing applications Exh. 14 which were timely produced on record to join the other tort- feasors. It is an error apparent on record, which could even be rectified by way of review application. Be that as it may. The present petitions are required to be considered in the facts and circumstances of the case.
6. Accordingly, the applications Exh. 14, in both the claim petitions, are allowed and consequently, the United India Insurance Co. Ltd. be joined as respondent Nos. 4 and 5 respectively in both the judgments and awards. 6.1 As the liability has already been laid down in both the impugned judgments and awards against the driver, owner and the insurance company of the Rickshaw, now, the only requirement is to amend the operative orders of the impugned judgments and awards. Hence, the impugned judgments and awards be amended to the effect that the claimants are entitled to recover the awarded amount from all the opponents, jointly and severally, as has been laid down in the impugned judgments Page 4 of 5 Downloaded on : Tue Mar 14 20:59:44 IST 2023 C/SCA/12609/2018 ORDER DATED: 13/03/2023 and awards.
6.2 It is reported that the petitioner - insurance company has already deposited the awarded amount and hence, now, 20% amount, as has been laid down in the impugned judgments and awards against the United India Insurance Co. Ltd. for the driver and owner of the Rickshaw, be deposited before the Tribunal in proportion and the petitioner insurance company is entitled to receive the same and as soon as the amount is deposited, the same be given to the petitioner - insurance company. 6.3 In accordance with the order dated 17.02.2020 passed in Civil Application (For Withdrawal/Disbursement of Amount) No. 1 of 2019 in Special Civil Application No. 12609 of 2018, 70% amount was ordered to be invested in a Fixed Deposit with a Nationalized Bank for initial period of three years making it renewable till final disposal of the petition. Since, the petitions are being disposed of today, the amount so invested in FDR, be granted to the original claimants.
6.4 Rule is made absolute accordingly.
[ Gita Gopi, J. ]
hiren/139
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