Gujarat High Court
Shriram General Insurance Co Ltd vs Mukeshbhai Bhanabhai Sarla on 24 February, 2021
Bench: Vaibhavi D. Nanavati
C/FA/766/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 766 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 766 of 2021
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SHRIRAM GENERAL INSURANCE CO LTD
Versus
MUKESHBHAI BHANABHAI SARLA
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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 : 24/02/2021
ORAL ORDER
1. This appeal is preferred by the appellant
Insurance Company against the judgment and award
dated 21.1.2019 passed below Ex.7 by the learned
Motor Accident claims Tribunal (Auxi), Rajkot in
MACP No.863 of 2014 granting interim compensation
of Rs.25,000/ 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 on 16.3.2013, claimant was going
as pillion rider on motorcycle. When he reached
C/FA/766/2021 ORDER
near the spot of accident, at that time driver of
appellant insured Truck drove his vehicle and
collided with the claimant.
4. He has submitted that the claimant has
filed application under Section 166 of the M.V.
Act along with an application under Section 140
to obtain interim statutory compensation of
Rs.25,000/ under 'No Fault Liability. The
Tribunal has passed the NFL order to allow
statutory compensation of Rs.25,000/, to be paid
by the appellant and all opponents jointly and
severally with 9% interest.
5. He has submitted that the learned Tribunal
has not properly appreciated the legal defences
as raised by the appellant in its written
statement, written arguments with respect to
legal liability of the appellantinsurance
company Original Opponent No.3.
6. He has submitted that the appellant -
Insurance Company is not at all liable to satisfy
any order as there was no negligence on the part
of appellant insured Truck.
7. He has submitted that it clearly appears from
police papers that the FIR, chargesheet was
lodged against the driver of Motorcycle. The FIR
C/FA/766/2021 ORDER
states that the motorcycle driver came in wrong
side and Truck dashed with the motorcycle. Hence
it is proved that the accident occurred due to
rash and negligent driving on the part of
motorcycle driver only. There was no negligence
of appellant insured Truck driver. The learned
Tribunal erred by fixing negligence of Truck.
Therefore the appellant insurance company is not
liable to pay any compensation to the claimant.
He has submitted that the driver of insured Truck
was not holding a valid and effective driving
license.
8. He has submitted that the learned Tribunal
has erred in awarding 9% interest. He has
submitted that the Hon'ble Supreme Court in the
reported judgment of Appellants: Dharampal and
Ors. Vs. Respondent: U.P. State Road Transport
Corpn 2008 (12) SCC 208 has held that the award
on interest should be in consonance with the bank
rates prevailing at the time of declaration of
the award.
9. 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.
C/FA/766/2021 ORDER
10. 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.
12. Taking into consideration the above
contentions raised by Mr. Rathin Raval, learned
advocate for the appellant Insurance Company that
the appellant Insurance Company is not at all
liable to satisfy any order as there was no
negligence on the part of appellant insured Truck
and the driver of insured truck was not holding a
valid and effective driving license the Truck 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
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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 itself while considering
the application under Section 140 of the MV Act
and without treating it as resjudicata.
13. 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.
14. 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 with the Tribunal Consequently
civil application for stay also stands disposed
of.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
