The New India Assurance Company ... vs Anwar Nazarmamad Bhati
2021 Latest Caselaw 17964 Guj

     C/SCA/16549/2019                              ORDER DATED: 01/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16549 of 2019
                                  With
                  R/CIVIL APPLICATION NO. 3394 of 2019
                   In F/FIRST APPEAL NO. 30391 of 2019
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              THE NEW INDIA ASSURANCE COMPANY LIMITED
                                Versus
                     ANWAR NAZARMAMAD BHATI
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Appearance:
MR VIBHUTI NANAVATI(513) for the Petitioner(s) No. 1
for the Respondent(s) No. 3,4,5,6
MS AMI N BHATT(3372) for the Respondent(s) No. 2
SERVED BY RPAD (N)(6) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                            Date : 01/12/2021

                              ORAL ORDER

1. This petition is filed by the Insurance Company i.e. original respondent No. 7 under Article 227 of the Constitution of India, challenging the judgment and award dated 12.04.2019 passed by the Motor Accident Claim Tribunal (Auxiliary), Kachchh at Anjar in Civil Misc. Application No. 111 of 2018 in Claim Petition No. 458 of 2015.

2. Brief facts of the present case is that, the petitioner - original respondent No. 7 is the insurance company of truck bearing registration No. GJ-3-T-2050. Owner of the said truck is M/s. Silver Salt Industries, who is original opponent No.5 in the claim petition. Respondent No.1 herein - original claimant was driver of truck bearing registration No. GJ- 3-T-2050 at the time of the accident on 16.6.2006. There was an accident between trucks bearing registration No. GJ-3-T-2050 insured with the petitioner herein, HR-47-6753 insured with Oriental Insurance Company Limited - original respondent No. 3 and truck No. GTY 5188

C/SCA/16549/2019 ORDER DATED: 01/12/2021

also insured with Oriental Insurance Company Limited - original respondent No.6. Claimant Anwar Nazarmamad Bhati had filed claim petition under Section 166 of the Motor Vehicles Act, 1988 for compensation of Rs. 7,00,000/- for the injuries suffered on account of the subject accident. The Tribunal framed issue of negligence as Issue No.1. The Tribunal has been pleased to pronounce the -Judgment and award on 15.03.2017.

3. I have heard the learned advocate Mr. Vibhuti Nanavati appearing for the petitioner. Though, notice served by registered post A.D. to respondent No. 1 and 2, none is present before the Court.

4. It is submitted by the learned Advocate Mr. Vibhuti Nanavati appearing for the petitioner that while evaluating the pleadings and evidence the Tribunal has rightly observed that, there are contributory negligency in the two vehicles but however, in the operative part of the award the Tribunal has directed all the concerned respondents that they are jointly and severally held liable and therefore, being aggrieved and dissatisfied by the impugned judgment and award the present petition is filed. He has submitted that, the present petitioner has also preferred first appeal against the impugned judgment and award wherein some delay is occurred in preferring the first appeal and that application of condonation of delay along with the first appeal is also ordered to be heard along with the present Special Civil Application. It is further submitted that while coming to a conclusion that, the Tribunal has rightly observed that the present insurance company i.e. original respondent No. 7 was held jointly and severally liable for negligency and therefore, the Tribunal has committed a grave error while passing the operative order and therefore, present petition is filed.

5. Considering the averments made in the petition and the submission made by the learned advocate and the contention made

C/SCA/16549/2019 ORDER DATED: 01/12/2021

before this Court, I am of the view that the present petition is required to be allowed to the extent that the error committed by the Tribunal in operative order to the effect that the present insurance company i.e. original opponent No. 7 is made liable jointly and severally and therefore, the order of the Tribunal to that effect is quashed and set aside and in the interest of justice, the petition is required to be allowed.

4. Hence, the petition is allowed. The impugned order dated 12.04.2019 passed by the Tribunal in Civil Misc. Application No. 111 of 2018 in M.A.C.P. No. 458 of 2016 is quashed and set aside. The interim relief granted earlier to continue till the hearing is taken place of the First Appeal and there shall remain in abeyance till the next date of the hearing of the First Appeal. It is clarified that this stay against the execution qua the present insurance company i.e. The New India Assurance Company Limited i.e. original respondent No. 7 only and the rest of the order is not interfered by this Court. The order of this Special Civil Application is to be kept in the file of Civil Application No. 3394 of 2019 and in First Appeal (File No. 30391 of 2019). The Registry is directed to place the Civil Application for condonation of delay and First Appeal before the appropriate Bench.

(HEMANT M. PRACHCHHAK,J) T. J. Bharwad