National Insurance Company ... vs Legal Heirs Of Deceased ...
2021 Latest Caselaw 18567 Guj

     C/SCA/428/2013                              JUDGMENT DATED: 20/12/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 428 of 2013
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 427 of 2013

FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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

2    To be referred to the Reporter or not ?                           Yes

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 LIMITED THRO AUTHORISED
                       SIGNATORY
                          Versus
LEGAL HEIRS OF DECEASED HITESHBHAI MANUBHAI SONI & 7 other(s)
================================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Petitioner(s) No. 1
DELETED(20) for the Respondent(s) No. 1.1,2,3,4,5,7
MR MAKBUL I MANSURI(2694) for the Respondent(s) No. 1.2
MR VIBHUTI NANAVATI(513) for the Respondent(s) No. 6,8
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                             Date : 20/12/2021

                            ORAL JUDGMENT

1. Special Civil Application No.428 of 2013 is filed by

the petitioner - Insurance Company for quashing and

C/SCA/428/2013 JUDGMENT DATED: 20/12/2021

setting aside the impugned order dated 31.12.2012

passed by the Motor Accident Claims Tribunal (Aux.),

Ahmedabad below application Exhibit 9 in MAC Execution

Petition No.101 of 2012 and Special Civil Application

No.427 of 2013 is filed by the petitioner - Insurance

Company for quashing and setting aside the impugned

order dated 06.02.2012 passed below applications Exhibit

16 and 19 in MAC Execution Petition No.402 of 2010 by

the Motor Accident Claims Tribunal (Aux.), Ahmedabad.

2. Both the petitions are disposed of by this common

judgment.

3. The facts of Special Civil Applications No.428 of 2013

and 427 of 2013 are that on 09.09.2010, the respondent

no.1 had filed M.A.C.P. No.M-25 of 2005 under Section

163-A of the Motor Vehicles Act before the Motor Accident

Claims Tribunal, Ahmedabad city against the petitioner -

Insurance Company, who is insurer of matador and

respondent nos.6 and 8 - insurer of auto rickshaw and

hero-honda motorcycle respectively involved in the

accident and driver and owner of the vehicles were joined

C/SCA/428/2013 JUDGMENT DATED: 20/12/2021

as party, whose presence are not necessary for deciding

the present petition as they are formal parties. It is

contended that on 18.11.2011, after hearing the parties,

the Tribunal has partly allowed the claim petition by

awarding Rs.4,12,500/- with 9% interest from the date of

claim petition till realization and directed the original

opponents to pay compensation jointly and severally

liable. So, the petitioner being one of the joint tort-feaster

has deposited its share of award i.e. 33.33% of awarded

amount which comes to Rs.2,15,501/- in MAC Execution

Petition No.402 of 2010 and opponent no.6 has also

deposited Rs.1,92,170/-, whereas, opponent No.8 has not

deposited its share in execution and, therefore, the

jungam warrant came to be issued against opponent no.8.

It is contended that by filing the application in the said

Execution Petition, respondent no.8 had prayed to refund

the amount on the ground that its driver was not held

negligent in causing accident in cognate claim petition.

Though no specific order of exoneration was passed by the

Tribunal, all opponents including respondent no.8 was

held jointly liable to pay compensation still Executing

C/SCA/428/2013 JUDGMENT DATED: 20/12/2021

Court has ordered to refund the amount so deposited by

respondent no.8 by modifying the said award which is

without jurisdiction as Executing Court cannot go behind

the decree. It is also contended that respondent no.1 -

original claimant appears to have withdrawn the said

Darkhast Proceedings and filed fresh Execution being

MAC Execution Petition No.101 of 2012 on 24.07.2012

praying to recover the balance amount of Rs.2,91,987/-

from the petitioner as well as original opponent no.3,

wherein notice was issued to the petitioner and

respondent no.6. It is contended that the original

claimants have filed application dated 27.09.2012 for

issuing jungam warrant against the petitioner and

respondent no.6 and petitioner has filed detailed reply in

the said execution petition. It is contended that on

31.12.2012, after hearing the parties, the Executing Court

has passed the order whereby the Executing Court has

issued jungam warrant against present petitioner, which is

contrary to the provisions of law and hence, these

petitions.

4. Heard Mr.Maulik Shelat, learned counsel appearing

C/SCA/428/2013 JUDGMENT DATED: 20/12/2021

for the petitioner and Mr.Vibhuti Nanavati, learned counsel

appearing for respondents no.6 and 8.

5. Mr.Maulik Shelat, learned counsel appearing for the

petitioner has submitted the same facts which are

narrated in the memo of petitions. He has submitted that

the order dated 31.12.2012 and the order dated

06.02.2012 passed by the Motor Accident Claims Tribunal

(Aux.), Ahmedabad in respective executive petition are

required to be quashed and set aside.

6. Mr.Vibhuti Nanavati, learned counsel appearing for

respondents no.6 and 8 has submitted that the Court may

pass appropriate orders.

7. Having considered the submissions made by learned

counsel appearing on behalf of both the sides and also

considered the averments made in the petition, I am of

the considered opinion that the Executing Court cannot

travel beyond the decree / award which is done so in the

present case, then the impugned orders are without

jurisdiction. Thus, the petitions deserve to be allowed and

the impugned orders deserve to be quashed and set

C/SCA/428/2013 JUDGMENT DATED: 20/12/2021

aside.

8. In view of the above, the present petitions are

allowed. The order dated 31.12.2012 passed by the Motor

Accident Claims Tribunal (Aux.), Ahmedabad below

application Exhibit 8 in MAC Execution Petition No.101 of

2012 and order dated 06.02.2012 passed below

applications Exhibit 16 and 19 in MAC Execution Petition

No.402 of 2010 by the Motor Accident Claims Tribunal

(Aux.), Ahmedabad are hereby quashed and set aside. The

respondent no.8 - insurance company is hereby directed

to deposit 33.33% of the original awarded amount i.e.

Rs.2,26,969.75 with interest at the rate of 9% from the

date of application till realization which will be paid to the

original claimants. It is clarified that if the petitioner has

deposited any excess amount after calculation in the

proceedings of M.A.C.P. No.M - 25 of 2005, then, the same

will be refunded to the petitioner by account payee

cheque within a period of fifteen days from the date of

receipt of the order. Rule is made absolute accordingly.

Sd/-

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