Iffco Tokio General Insurance Co ... vs Urmilaben Sureshbhai Vasava
2021 Latest Caselaw 2365 Guj

            C/FA/4186/2019                                    ORDER




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 4186 of 2019
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                IFFCO TOKIO GENERAL INSURANCE CO LTD
                                Versus
                    URMILABEN SURESHBHAI VASAVA
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR AMRISH K PANDYA(3219) for the Defendant(s) No. 7
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2,3,4
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 5,6
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 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                               Date : 15/02/2021
                                ORAL ORDER

1. This Appeal has been preferred by the Insurance Company challenging the judgment and award dated 04.05.2019 passed by learned Motor Accident Claims Tribunal (Auxi), 10th Additional District Court Vadodara at Savli in MACP No.1416 of 2015.

2. The brief facts of the case are as follows:

2.2. The case of the claimants is that on 19.02.2011 the deceased was walking on the road, a motorcycle insured by the appellant collied with the deceased. The deceased sustained fatal injuries and succumbed to death.

3. Learned advocate Mr.Rathin Raval for the appellant-Insurance Company has vehemently submitted that as per the claimants version, the deceased was walking on the road and motorcycle insured collided with the deceased, which resulted in occurrence of accident. He has submitted that from the evidence, which is produced on record, the deceased was

C/FA/4186/2019 ORDER

driving motorcycle and the accident has occurred on his own negligence. He has submitted that the deceased was driving the vehicle and hence, it would be difficult for claimants to obtain compensation or reduced compensation and in view thereof, the police papers were manipulated to portray as if the deceased was a pedestrian. He has submitted that the Insurance Company is not liable to pay compensation as the claimants have committed fraud.

4. Learned advocate for the appellant relied upon the Written statement produced by the appellant before the tribunal below Exh.21, pursis through which police papers of Cr.Reg. No.26/2011, Vaghodiya Police Station, Report addresses to Shahibaug Police Station, Ahmedabad, Report of Civil Hospital, Ahmedabad and Vardhi given by Ahmedabad Civil Hospital to the Shahibaug Police Station for substantiating the case that it is the claimants have resorted to fraudulent tactics in order to claim compensation.

5. Learned advocate Mr.Rathin Raval for the appellant has submitted that the tribunal has discussed the aspect of fraud as averred by the appellant without referring to evidence, which was produced by the appellant and the tribunal is silent on the said issue even while deciding apportionment of liability on the part of the appellant. He has further submitted that the charge-sheet is not conclusive evidence of involvement of vehicle.

6. Learned advocate Mr.Hiren Modi appearing for the respondent nos.1 to 4-original claimants has supported the judgment passed by the learned tribunal and submitted that the award passed by the tribunal is just and proper and it does not require any interference. In support of his

C/FA/4186/2019 ORDER

submission, he has relied upon the the First Information Report at Exh.28, charge-sheet at Exh.38 and the deposition of the claimants at Exh.24

7. Learned advocate Mr.Amrish Pandya adopted the submissions advanced by the learned advocate Mr.Rathin Raval for the appellant.

8. Heard the learned advocates appearing for the respective parties.

9. The contentions raised by the Insurance Company have not been dealt with by the tribunal whereby the Insurance Company has vehemently averred that the claimants have resorted to fraudulent tactics in order to claim compensation. It appears that the tribunal has not considered the contentions raised by the Insurance Company while deciding the apportionment of liability of respective parties.

10. On one hand the claimants have stated that on 19.02.2011 the deceased was walking on road and a motorcycle insured by the appellant collided with the deceased and the accident occurred. On the other hand, the appellant has relied on documents, which suggest that the deceased was driving motorcycle and the accident occurred due to his own negligence. The submissions of the appellant, referring to various exhibits as mentioned in the appeal appear not to have been dealt with. In the Para 11 of the impugned judgment and award of the tribunal where the liability between the parties is not forming part of discussion while apportioning liability. The said aspect is required to be assessed.

11. The contentions taken by learned advocate for the appellant weigh with the Court.

C/FA/4186/2019 ORDER

12. Accordingly, the impugned judgment and award dated 04.05.2019 passed by learned Motor Accident Claims Tribunal (Auxi), 10th Additional District Court Vadodara at Savli in MACP No.1416 of 2015 is hereby quashed and set aside. The matter is remanded back at the stage of arguments to the tribunal for adjudication of this issue afresh after providing opportunity to all the parties, purely on merits and in accordance with law. After completion of trail, the amount which is deposited by the Insurance Company be disbursed in accordance with law.

13. The above order is passed without going into the merits of the matter and without prejudice to the rights and contentions which may be raised by the respective parties at the time of hearing.

(VAIBHAVI D. NANAVATI,J) ABHISHEK