The Oriental Insurance Co Ltd vs Ambaben Khemabhai Vankar
2021 Latest Caselaw 2269 Guj

        C/FA/572/2021                                             ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO.                572 of 2021

                            With
        CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
              In R/FIRST APPEAL NO. 572 of 2021
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                 THE ORIENTAL INSURANCE CO LTD
                              Versus
                    AMBABEN KHEMABHAI VANKAR
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
 for the Defendant(s) No. 1,2,3,4
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 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 12/02/2021

                                   ORAL ORDER

1. This appeal is preferred by the appellant Insurance Company against the interim award dated 29.11.2018 passed below Exhibit: 5 by the Ld. Motor Accident claims Tribunal (Main), Sabarkantha at Himmatnagar in MACP No. 202 of 2017 granting interim compensation of Rs. 50,000/- under Section 140 of the Motor Vehicles Act, 1988 (for short 'the MV Act').

2. Heard Mr. Rathin P. Raval, learned advocate appearing for the appellant Insurance Company and perused the impugned judgment and order.

3. Mr. Rathin Raval, learned advocate for the appellant Insurance Company has, inter alia contended that the deceased was travelling in Ambulance No. GJ- 18-G-7975 as a passenger. The deceased sustained fatal injuries due to an accident. The claimant has

C/FA/572/2021 ORDER

filed application under Section 166 of the M.V. Act along with an application under Section 140 to obtain interim statutory compensation of Rs.50,000/- under 'No Fault Liability. The Tribunal has passed the NFL order to allow statutory compensation of Rs.50,000/-, to be paid by the appellant and all opponents jointly and severally with 6.5% interest.

4. The claim has been preferred by heirs and legal representatives of the deceased. It is the contention of the appellant that the risk of the passenger is not covered under the insurance policy as it was an "Act only" or "Liability only" policy. In this view of the matter, the claim petition is not maintainable as such against the appellant.

5. He has further submitted that this issue is no longer res integra as the said issue has been determined by the Hon'ble Apex Court in the case of NigAmma VS. United India InsurAnce CompAny Limited, reported in (2009) 13 SCC 710, and recently by coordinate bench of this Hon'ble Court in R/FIRST APPEAL NO. 505 of 2015, order dated 04/02/2020. Therefore, the claim petition itself is not maintainable against the appellant. He has further submitted that the deceased was travelling upon Ambulance which was having Act only Policy. Consequently therefore, in view of decision of the Hon'ble Apex Court in the case of National InsurAnce CompAny Limited Vs. Balakrishnan And Another, reported in (2013) 1 SCC 731, there is no coverage of risk of passenger and therefore, also no liability

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can be fastened upon the Insurance Company.

6. He has further submitted that this is an award under Section 140 of the M.V. Act, consequently therefore, the aforesaid contentions were raised by the Insurance Company before the Learned Tribunal but the same has not been considered by the Learned Tribunal. He has further relied upon the decision of Hon'ble Apex Court in the case of National Insurance Co. Ltd. vs. Yallawwa, reported in (2007) 6 SCC 657 and submitted that the learned Tribunal ought to have considered the contentions raised by the Insurance Company.

7. Taking into consideration the above contentions raised by Mr. Rathin Raval, learned advocate for the appellant Insurance Company that the deceased was travelling in Ambulance as passenger and the Ambulance was having Act only Policy. This is an interim award passed under Section 140 of the MV Act. Consequently, therefore, the rival parties have not got any opportunity of adducing and producing evidence before the Learned Tribunal. Therefore, this issue raised by the learned advocate can only be adjudicated at the stage of fullfledged trial. This issue cannot be decided at the interim stage and taking into consideration the intention of legislature for interim award, the appellant is at liberty to raise such issue while defending the main claim petition and the Learned Tribunal shall decide the same on its own merits without being influenced by the decision rendered by the learned Tribunal

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itself while considering the application under Section 140 of the MV Act and without treating it as resjudicata.

8. While considering the main claim petition, the learned Tribunal shall afford reasonable opportunity to the rival parties to proceed so far as the controversy raised in this matter is concerned and the Learned Tribunal shall decide the said issue without being influenced by any of the observations made by this Court at this stage.

9. With these directions, present appeal is disposed of. The insurance company is hereby directed to deposit the entire award amount(excluding the amount already deposited) which shall be disbursed in favour of the claimant forthwith. Consequently civil application for stay also stands disposed of.

(VAIBHAVI D. NANAVATI,J)

NEHA