National Insurance Company vs Babubhai Mithabhai (Since ...
2021 Latest Caselaw 18003 Guj

     C/SCA/5974/2010                             JUDGMENT DATED: 02/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5974 of 2010


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

================================================================

1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
               NATIONAL INSURANCE COMPANY
                           Versus
BABUBHAI MITHABHAI (SINCE DECEASED) THROUGH LEGAL HEIRS & 1
                           other(s)
================================================================
Appearance:
MR DAKSHESH MEHTA(2430) for the Petitioner(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9
UNSERVED REFUSED (R)(70) for the Respondent(s) No. 2
===============================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                             Date : 02/12/2021

                            ORAL JUDGMENT

1. The present petition is filed by the petitioner - Insurance Company under Articles 226 and 227 of the Constitution of India challenging the order dated 22.04.2010 passed in Execution

C/SCA/5974/2010 JUDGMENT DATED: 02/12/2021

Application No.49 of 2009 in M.A.C.P. No.393 of 1998 by the Motor Accident Claims Tribunal, Morbi (hereinafter referred to as "the Tribunal"), whereby, the Tribunal has directed the petitioner to deposit awarded amount within 15 days from the date of the order along with interest at the rate of 7.5% p.a.

2. Short facts, in nutshell, which has led to filing of this appeal are as under:

2.1 On 02.10.1998, the deceased Babubhai Mithabhai was travelling in Truck No.GRM-5637 as an unauthorized passenger for going to Bhavnagar for attending marriage ceremony and at that time, the driver has driven the said vehicle in rash and negligent manner endangering the life of the passenger and near Bharadiya, Bhavnagar - Rajkot road, the driver has driven the said vehicle in excess speed on bump, due to which, the claimant had fallen down and sustained serious injury and, thereafter, he died. The legal heirs of the deceased have filed the claim petition being M.A.C.P. No.393 of 1998 seeking compensation of Rs.5,00,000/- and the Tribunal has partly allowed the claim petition and awarded compensation of Rs.3,46,000/- and exonerated the insurance company vide order dated 30.03.2007.

2.2 It is the case of the petitioner that the Tribunal has exonerated the petitioner from its liability. Accordingly, vide Exhibit 29, the decree came to be drawn and there was specific mentioned that the decreetal amount was to be recovered from original opponent No.1 only. Thereafter, the original claimants have filed Review Application No.54 of 2008 in M.A.C.P. No.393 of 1998 wherein they have contended that the Insurance

C/SCA/5974/2010 JUDGMENT DATED: 02/12/2021

Company was wrongly exonerated from the liability. The Tribunal, after hearing the parties, rejected the review application on 24.07.2009. So the impugned award became final and against that there is no further proceedings filed by the original claimants.

2.3 It is further the case of the petitioner that though the Tribunal has, while passing the impugned judgment and award, exonerated the petitioner - Insurance Company from its liability. Subsequently in review application also, the Tribunal has confirmed its earlier order and rejected the same. Surprisingly, the original claimants had filed application being Execution Application No.49 of 2009, which came to be allowed vide order dated 22.04.2010 by the Tribunal, which is under challenge in this petition.

3. Heard Mr.Dakshesh Mehta, learned counsel appearing for the petitioner. Though served, the respondents have chosen not to appear before the Court.

4. Learned counsel for the petitioner has submitted that the Execution Court has no jurisdiction to pass such order. He has submitted that the Tribunal has erred in passing the impugned order in execution proceedings, which is not permissible under the law. He has submitted that the Tribunal has not considered the decisions of the Hon'ble Apex Court. He has prayed to quash and set aside the order dated 22.04.2010 passed by the Tribunal below application Exhibit 1 in Execution Application No.49 of 2009 in M.A.C.P. No.393 of 1998.

5. This Court has, while admitting the petition, passed the

C/SCA/5974/2010 JUDGMENT DATED: 02/12/2021

order on 13.05.2010 which reads as under:

Heard Mr.Mehta, learned Advocate for the petitioner - Insurance Company.

2. Learned Advocate for the petitioner invited attention of the Court to the judgment and order passed in in Motor Accident Claim Petition No.393 of 1998 dated 30.03.2007. He then invited attention of the Court to the award, a copy of which is produced at page Nos.33-34. He also invited attention of the Court to the order passed below application Exh.1 in Civil Misc.Application No.54 of 2008 and submitted that none of the aforesaid documents refers to the liability of the Insurance Company to pay the amount of compensation. He submitted that despite that, the learned Judge has passed an order in Civil Darkhast No.49 of 2009 dated 22.04.2010, whereby the Insurance Company is directed to deposit the amount of award with 7.5% interest till date within 15 days, failing which the 'Jangum Warrant' under O-21 R-30 of the Code of Civil Procedure will be issued against the Insurance Company.

3. The matter requires consideration.

RULE. Ad interim relief in terms of para-13(C).

4. Taking into consideration the fact that this will deprive the claimants of Motor Accident Claim Petition No.393 of 1998, who have filed Darkhast in the year 2009, the Rule is made returnable on 21.06.2010.

Insurance Company to see that the respondents are by effecting Direct Service.

5. At the request of the learned Advocate for the petitioner, it is clarified that the present petition is entertained only qua the petitioner - Insurance Company and by no stretch of imagination, pendency of this petition should be construed to mean that there is stay against execution against respondent No.2 - owner of the vehicle.

6. In the backdrop of the submissions made by the learned counsel for the petitioner and the facts of the present case and considering the materials placed on record, I am of the view that the Tribunal has committed serious error while passing the

C/SCA/5974/2010 JUDGMENT DATED: 02/12/2021

impugned order in execution application, which is under challenge and, therefore, the same deserves to be quashed and set aside as it is not conformity with the earlier order passed by the Tribunal. Once the Tribunal came to the conclusion that the Insurance Company was not liable and while passing the impugned award exonerated the Insurance Company from indemnifying the insure and even in subsequent, that too, while rejecting the review application also, the Tribunal has confirmed its earlier order then there is no reason to exceed its jurisdiction while passing the impugned order.

7. In view of the above, the petition is allowed. The impugned order dated 22.04.2010 passed by the Tribunal in Execution Application No.49 of 2009 in M.A.C.P. No.393 of 1998 is hereby quashed and set aside. The petitioner - Insurance Company is exonerated from its liability. Rule made absolute to the aforesaid extent. There shall be no order as to cost.

Sd/-

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL