Gujarat High Court
Hdfc Ergo General Insurance Co Ltd vs Diviben Jagabhai Dabhi on 17 February, 2021
Bench: Vaibhavi D. Nanavati
C/FA/2574/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2574 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/FIRST APPEAL NO. 2574 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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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 ?
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HDFC ERGO GENERAL INSURANCE CO LTD
Versus
DIVIBEN JAGABHAI DABHI
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
NOTICE SERVED(4) for the Defendant(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 17/02/2021
ORAL JUDGMENT
1. Though served, none appears for the
respondents No.1 and 2.
C/FA/2574/2020 JUDGMENT
2.This First Appeal is filed by the appellant -
Insurance Company under Section 173 of the
Motor Vehicle Act challenging the judgment
and award dated 14.9.2017 passed by the
learned Motor Accident Claim Tribunal (Aux.),
& 7th Additional District Court, Banaskantha
at Palanpur in Motor Accident Claim Petition
No.180 of 2012.
3. It is the case of the claimant that on
19.5.2011, the claimant was travelling as
passenger in a Jeep bearing Registration
No.GJ8A9128 of his relative and coming
from Maneknath and at that time the driver of
the jeep drove his vehicle and lost his
control over Jeep, hence the jeep turned
turtle. The accident occurred. As a result
thereof, the claimant received injuries.
4. Heard Mr. Rathin P. Raval, learned
advocate for the appellant. He has submitted
that the appellant insurance Company is not
at all liable to satisfy any order including
C/FA/2574/2020 JUDGMENT
NFL amount as insurance policy of Jeep was
'Act only/Liability only Policy" and claimant
was travelling as passenger.
5. The appellant - insurance company is
exonerated vide order dated 30.9.2019 passed
in Motor Accident Claim Petition 180 of 2012
by the learned Tribunal. In supported of his
submission he has relied on para16.1 of the
order dated 30.9.2019, which is reproduced
herein below :
"16.1 It appears from the insurance
policy produced on record by the learned
advocate for the claimant at Ex.24 that
the policy is Private car Liability only
policy and no risk of the occupants of
the jeep accepted by the insurance
company. Further at the time of
accident the claimant was. travelling in
the jeep as a passenger and no
additional premium has been accepted in
the policy except Third party.
Therefore, in this case the opponent
No.2 insurance company needs to be
exonerated. It is not in dispute that'
at the time of accident the opponent
No.1 is the owner of the vehicle bearing
'registration. No.GJ8A9128. As
discussed. earlier the opponent No.2
insurance | company is exonerated. .
Therefore, I hold that | the opponent
No.1 is required to pay the. claim
amount to the claimant."
C/FA/2574/2020 JUDGMENT
6. He has further submitted that the claimant
then filed an execution petition being
Execution Petition No.8 of 2020. He has
submitted that even on the ground of delay
the execution petition is not maintainable
which is filed in the year 2017. He has
submitted that for the first time it was
discovered by the insurer that such NFL order
was passed.
7. He has submitted that the execution is to be
proceeded against the owner of the vehicle
and not against the insurance company. He has
submitted that the learned Claim Tribunal has
directed original opponent No.1 - owner of
the vehicle to pay the amount of compensation
to the claimants to the tune of Rs.72,080/
from the present respondent No.2.
8. I have heard the learned advocate for the
appellant and I have gone through the
impugned judgment and award dated 13.9.2019
C/FA/2574/2020 JUDGMENT
passed by the learned Motor Accident Claim
Tribunal (Aux.), & 5th Additional District
Court, Ahmedabad (Rural) at Mirzapur in Motor
Accident Claim Petition No.561 of 2009 and
the order dated 30.9.2019 passed in Motor
Accident Claim Petition 180 of 2012. In view
of above I am of the opinion that when the
appellant - Insurance Company is exonerated
from the liability of making the payment by
the Tribunal, the appellant is not liable to
pay the amount of no fault liability under
Section 140 of the Act, 1988.
9. The appeal is allowed. The judgment and
award dated 13.9.2019 passed by the learned
Motor Accident Claim Tribunal (Aux.), & 5th
Additional District Court, Ahmedabad (Rural)
at Mirzapur in Motor Accident Claim Petition
No.561 of 2009 is quashed and set aside. The
Tribunal is directed to refund the amount
deposited by the appellant Insurance
Company pursuant to the order dated
C/FA/2574/2020 JUDGMENT
18.12.2020 passed by this Court within a
period of eight weeks from the date of
receipt of copy of this order. Accordingly
the civil application for stay stands
disposed of.
10. Record and Proceedings, if any, is
ordered to be returned back forthwith.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
