Icici Lombard General Insurance vs Rashmiben Wd/O Chetanbhai ...
2021 Latest Caselaw 18712 Guj

      C/FA/5169/2019                            JUDGMENT DATED: 23/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO. 5169 of 2019
                               With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                 In
                 R/FIRST APPEAL NO. 5169 of 2019
                               With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
                           NO. 1 of 2021
                                 In
                 R/FIRST APPEAL NO. 5169 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and

HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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

1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of
      the judgment ?

4     Whether this case involves a substantial question of
      law as to the interpretation of the Constitution of
      India or any order made thereunder ?

==========================================================
                  ICICI LOMBARD GENERAL INSURANCE
                                Versus
           RASHMIBEN WD/O CHETANBHAI MEGHJIBHAI CHHEDA
==========================================================
Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
MR SAURABH G AMIN(2168) for the Defendant(s) No. 1,2,3,4
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 5
NOTICE SERVED(4) for the Defendant(s) No. 6



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       C/FA/5169/2019                             JUDGMENT DATED: 23/12/2021



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

     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 23/12/2021

                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgement and award dated 11.3.2019 passed in Motor Accident Claims Tribunal (Aux.) in MACP No.872 of 2007, the Insurance Company has preferred this appeal under Section 173 of the Motors Vehicles Act, 1988 ("the Act" for short).

2. The following facts emerge from the record of the appeal.

2.1. The accident took place on 18.4.2007 at about 3:45 p.m. It is the case of the deceased Chetanbhai Chheda, that he was driving the Indica Car bearing registration No. GJ-18-AA-6557 accompanied with Darshan Bhavasar very carefully and at a moderate speed. It is the case of the claimants that when the car reached village Chokhadara, the driver of the qualis Car bearing registration No. GJ-5CD-4375 came from a wrong side after crossing the divider in rash and negligent manner and dashed with the Indica Car, as a result of which, Chetanbhai Chheda succumbed to the same.

3. Claim petition being MACP No.872 of 2007 was filed by heirs of deceased Chetanbhai Chheda whereas MACP No.535 of 2008 was filed by heirs of deceased Darshan Bhavsar. Both the claim petitions were clubbed together and heard together and are disposed of by the common judgement and award. No

C/FA/5169/2019 JUDGMENT DATED: 23/12/2021

appeal is filed against the MACP No.535 of 2008.

4. The claimants were examined at Exh.34 and have relied upon plethora of documentary evidence. The claimants have also relied upon the deposition of Chartered Accountant at Exh.63 to buttress the arguments about their income of the deceased.

5. Upon hearing the learned advocates appearing for the appellant - Insurance Company as well as the claimants, we are of the opinion that the same is not properly dealt with. Even the manner in which the accident has occurred though examined by the Tribunal and decided by correctly appreciating the evidence on record, this Court is of the opinion that while deciding the issue of income an error has crept in.

6. Upon broad consensus of the learned advocates appearing for the appellant - Insurance Company as well as the claimants, the impugned judgement and award passed in MACP No.872 of 2007 is quashed and set aside and the proceedings of MACP No.872 of 2007 are restored back to the file of the Tribunal for fresh hearing from the stage of evidence. Both the parties are at liberty to adduce any further evidence and after hearing the parties and appreciating the evidence already on record and further evidence that may be filed by both the sides, the Tribunal shall pass a fresh order in accordance with law as expeditiously as possible and latest by 30.4.2022.

7. Record and Proceedings be transmitted back to the Tribunal forthwith.

C/FA/5169/2019 JUDGMENT DATED: 23/12/2021

8. Even at the cost of repetition, it is provided that the above order is only limited to MACP No.872 of 2007.

9. The amount which has been deposited as per order dated 22.10.2019 in Civil Application (For Stay) may be invested in a cumulative FDR in a Nationalised Bank till the claim petition is decided.

10. All other connected Civil Applications stand disposed of.

(R.M.CHHAYA,J)

(MAUNA M. BHATT,J) NAIR SMITA V.