The United India Insurance Co. ... vs Magtiben Geriyabhai Bhil(Wife)
2021 Latest Caselaw 582 Guj

           C/FA/2640/2020                                            ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2640 of 2020

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                   In R/FIRST APPEAL NO. 2640 of 2020
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                  THE UNITED INDIA INSURANCE CO. LTD.
                                 Versus
                    MAGTIBEN GERIYABHAI BHIL(WIFE)
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3,4,5
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 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                   Date : 18/01/2021

                                       ORAL ORDER

1. This appeal is preferred by the appellant Insurance Company against the interim award dated 05/09/2019 passed below Exhibit: 6 by the Ld. Motor Accident claims Tribunal (Auxi.), at Chhotaudepur in MACP No. 1722/2017 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





          C/FA/2640/2020                                                  ORDER



  appellant           Insurance            Company          has,       inter          alia

contended that the deceased was travelling in Jeep No. GJ­4D­2560 as a passenger. The deceased died due to an accident. The claim petition is filed by joining only one vehicle which is insured by the appellant.

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 Jeep which was having Act only Policy. Consequently therefore, in view of decision of

C/FA/2640/2020 ORDER

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 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 deceased was travelling in Jeep as passenger and the Jeep 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

C/FA/2640/2020 ORDER

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 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

C/FA/2640/2020 ORDER

(excluding the amount already deposited) which shall be disbursed to the claimants forthwith. Consequently civil application for stay also stands disposed of.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED