Gujarat High Court
Ghaniben Parmabhai Parmar vs Javidbhai Kadarbhai Memon on 3 January, 2025
NEUTRAL CITATION
C/FA/1613/2019 ORDER DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1613 of 2019
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GHANIBEN PARMABHAI PARMAR
Versus
JAVIDBHAI KADARBHAI MEMON & ANR.
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - original claimant being aggrieved and dissatisfied with the judgment and award dated 04.01.2019 passed by the Motor Accident Claims Tribunal, Banaskantha District, Palanpur in Motor Accident Claim Petition No.204 of 2006.
2. Brief facts of the case are as under:
2.1 On 23.04.2005, the applicant was going from Palanpur to Gola in vehicle Jeep No.GJ-16-C-5136 and when the said Jeep reached near place of accident, driver of Jeep was driving vehicle in excessive speed and lost control over steering and as a result, the applicant sustained severe injuries.Page 1 of 4 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 22:06:15 IST 2025
NEUTRAL CITATION C/FA/1613/2019 ORDER DATED: 03/01/2025 undefined
3. Heard learned advocates for the respective parties.
4. Exoneration of insurance company is solitary contention raised by learned advocate for the appellant - claimant. Submission is canvassed on the ground that MACP No.203 of 2006 was filed before the very same Tribunal by another victim of same road accident, whereby, learned Tribunal fasten liability upon insurance company and ordered to pay compensation. Learned Tribunal though referred same judgment passed by Co- ordinate Tribunal but differed on the aspect of liability of insurance company and thereby breached principles of judicial propriety . Therefore, he submits that insurance company should be fasten liability to pay compensation. Therefore, it is submitted to allow the appeal.
5. Learned advocate Mr.Thakkar for Insurance Company while supporting impugned judgment and award would submit that judgment in MACP No.203 of 2006 was passed in absence of National India Insurance Company Ltd. Therefore, finding arrived by learned Tribunal in the said MACP would not bind on Tribunal where certain defence has been raised by National Insurance Company Ltd. Learned advocate Mr.Thakkar referred to para 21 of the impugned judgment and argued that policy of jeep was liability only policy. The claimant did not fall within definition of third party as claimant being occupant of the jeep and he could not be considered as third party. No premium for occupant is paid. In view of this, the claimant cannot be entitled to seek compensation from insurance company. Therefore, it is submitted to dismiss the appeal.
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6. Having heard learned advocates for both the sides and perusal of evidence on record, it can be noticed that learned Tribunal has assessed and awarded compensation of Rs.44,270/- with 9% p.a. interest from the date of petition till realization. The award is too small. From the very selfsame road accident another occupant of jeep received injury filed claim petition under section 166 of MV Act vide MACP No.203 of 2006. Process was served to National Insurance Company Ltd. Despite defence of policy being liability only policy, National Insurance Company Ltd. did not choose to contest said claim petition. Ultimately, learned Tribunal after assessing evidence on record was justified to fasten liability on insurance company to pay compensation. Learned advocate Mr.Thakkar could not point out whether judgment in MACP No.203 of 2006 has been challenged by the insurance company or not. Principle of estoppel applies and insurance company having satisfied award passed in MACP No.203 of 2006 cannot quarrel and raise defendant in MACP No.204 of 2006 filed by another co-passenger of jeep.
7. In nutshell, insurance company since satisfied claim of one of the co-passenger, it cannot deny to pay compensation on the ground that policy of jeep is liability only policy. Principle of judicial propriety also demands that learned Tribunal ought to have respected finding given by Co-ordinate Tribunal since it is not disturbed by higher forum. In the peculiar facts and circumstances of the case, learned Tribunal ought to have fasten liability on insurance company to pay compensation. Error much less understanding of law has crept and deserves to be corrected by allowing this appeal.
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8. For the foregoing reasons, the appeal is allowed. The appellant / claimant would be entitled to recover compensation of Rs.44,720/- with 9% p.a. interest from the date of claim petition till realization jointly and severally from the opponents of claim petition. Respondent no.2 - Insurance Company shall deposit entire decreetal amount including interest and cost within six weeks form today before the learned Tribunal concerned. Upon deposit of deecretal amount, The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
9. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
10. Record and proceedings be sent back to the concerned Tribunal, forthwith.
11. Since above order is passed in peculiar facts and circumstances of the case, it would not be referred as precedent in other matter.
(J. C. DOSHI,J) SATISH Page 4 of 4 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Jan 04 2025 Downloaded on : Mon Jan 06 22:06:15 IST 2025