NEUTRAL CITATION
C/FA/1238/2019 ORDER DATED: 04/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1238 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/FIRST APPEAL NO. 1238 of 2019
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HDFC ERGO GENERAL INSURANCE COMPANY LTD
Versus
PARMAR BALVANTSINH LAXMANSINH
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR H M SHAH(3997) for the Defendant(s) No. 2,3,4,5
MR PAWAN A BAROT(6455) for the Defendant(s) No. 1
NOTICE NOT RECD BACK for the Defendant(s) No. 7
NOTICE UNSERVED for the Defendant(s) No. 6
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/10/2023
ORAL ORDER
1. The challenge is given to the judgment and award dated 01.10.2018 in MACP No.1368 of 2012 (Old MACP No.664 of 2011) by the Insurance Company primarily on the ground that the plea was raised before the Tribunal of the private car liability only policy, wherein no premium has been paid for covering the risk of any passenger, and the opponent no.3 had filed an affidavit of Vivek Rajnikant Shah serving in the Insurance Page 1 of 5 Downloaded on : Wed Oct 04 20:50:56 IST 2023 NEUTRAL CITATION C/FA/1238/2019 ORDER DATED: 04/10/2023 undefined Company, and the learned Tribunal has gone beyond the evidence and the pleadings of the Insurance Company, where it was specifically stated that Mahindra Commander Jeep bearing No.GJ-7-A-4635 is liability only policy means act only policy, and the deceased was travelling in the said Commander Jeep as an occupant, and therefore the risk of occupant was not covered as per the terms and conditions of the policy.
2. Mr. Maulik J.Shelat, learned advocate for the appellant submits that the learned Tribunal has failed to consider the same and had gone beyond the pleadings and proofs to lay down the burden, and though specifically the policy was proved, the learned Tribunal has observed of the coverage of the person seating in the vehicle therein as a third party, which is not permissible in law, and unnecessary burden has been laid down on the opponents that they had failed to prove that the insured vehicle was Page 2 of 5 Downloaded on : Wed Oct 04 20:50:56 IST 2023 NEUTRAL CITATION C/FA/1238/2019 ORDER DATED: 04/10/2023 undefined being used as a taxi to carry passengers for hire and reward, and they have failed to prove that the deceased had ever arranged the Jeep on hire and reward.
2.1 Mr. Shelat has referred to the policy and the pleadings with evidence of the officer on record to show that it is a private car liability only policy.
3. In view of the above, the matter requires consideration, hence, the finding in the judgment and award dated 01.10.2018 passed in MACP No.1368 of 2012 (Old MACP No.664 of 2011) by the 5th MACT (Aux.) at Mahesana @ Visnagar making the Insurance Company liable is quashed and set aside. The present appeal stands disposed of. 3.1 Let the matter be reconsidered on the basis of the pleadings and evidence on record Page 3 of 5 Downloaded on : Wed Oct 04 20:50:56 IST 2023 NEUTRAL CITATION C/FA/1238/2019 ORDER DATED: 04/10/2023 undefined only on the aspect of liability of the Insurance Company to pay the compensation amount, since other issues are decided on evidence, where no challenge at present is given.
4. It is stated by Advocate Mr. Shelat that at present the Insurance Company has paid the total amount, thus, Advocate Mr.H.M. Shah states that after a full-fledged trial the claimants could see some result and since the Tribunal has ordered 70% amount to be kept in FDR, Mr. Shah made a prayer that at least 30% amount be paid to the claimants from the total amount deposited before the Tribunal.
4.1 In view of the facts and circumstances of the case, out of the amount so deposited, the Tribunal concerned is directed to disburse 30% thereof in favour of the original claimant/s, by Account Payee cheque, after due verification; Page 4 of 5 Downloaded on : Wed Oct 04 20:50:56 IST 2023
NEUTRAL CITATION C/FA/1238/2019 ORDER DATED: 04/10/2023 undefined however, it is made clear that this would not affect the right of the Insurance Company to get the recovery of the amount.
4.2 The remaining 70% shall be invested in Fixed Deposit with any nationalized Bank in the name of the original claimant/s, initially, for a period of two years, which may be renewed from time to time, without any reference to this Court. The Bank concerned shall not allow any loan or advance or create encumbrance upon such Fixed Deposit without prior permission of the Tribunal. Interest accruing on such Fixed Deposit shall be accumulated. The original Fixed Deposit Receipt shall be kept in the custody of the Nazir of the Tribunal.
5. In view of disposal of the main appeal, the Civil Application stands disposed of.
(GITA GOPI,J) Pankaj Page 5 of 5 Downloaded on : Wed Oct 04 20:50:56 IST 2023