Gujarat High Court
Bajaj Allianz General Insurance ... vs Heirs Of Valjibhai Bhanabhai ... on 21 January, 2021
Bench: R.M.Chhaya
C/FA/1290/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1290 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
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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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BAJAJ ALLIANZ GENERAL INSURANCE CO LTD
Versus
HEIRS OF VALJIBHAI BHANABHAI PARMAR & 1 other(s)
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Appearance:
ADITI S RAOL(8128) for the Appellant(s) No. 1
RULE SERVED(64) for the Defendant(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,2
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
Date : 21/01/2021
ORAL JUDGMENT
1. Being aggrieved and dissatisfied by the judgment
and award dated 03.01.2011 passed by the Motor
Accident claims Tribunal (Main), Rajkot in MACP
No. 1009 of 2008, the appellant has preferred
this appeal under Section 173 of the Motor
C/FA/1290/2011 JUDGMENT
Vehicles Act, 1988 (hereinafter referred to as
the "Act").
2. The following facts can be culled out from the
record of the appeal
2.1 That on 20.04.2008, deceased Valjibhai was
travelling as pillion rider on the motorcycle
bearing Registration No. GJ3BK3563 and
respondent no.2 was driving the said motorcycle.
It is the say of the original claimants
respondents that because of the rash and
negligent driving, motorcycle got slipped as a
result of which the deceased sustained serious
injuries and succumbed to the same. The FIR was
lodged with jurisdicational police and
respondentsoriginal claimants preferred claim
petition for compensation of Rs. 4,00,000/
under section 163A of the Act.
2.2 Various contentions were taken by the
appellant insurance company. The wife of the
deceased was examined at exhibit 21 and the
respondentsoriginal claimants also relied upon
documentary evidence such as FIR at exhibit 26,
chargesheet at exhibit 45, RC book at exhibit
30, inquest panchnama of the dead body of the
deceased at exhibit 27, panchnama of the scene
of occurrence at exhibit 29, PM report at
exhibit 29. The Tribunal assessed the income of
the deceased at Rs. 2,700/ p.m. and after
deducting multiplier of 17, awarded a sum of Rs.
C/FA/1290/2011 JUDGMENT
3,67,200/ towards loss of dependency. Over and
above the same, the Tribunal awarded a sum of
Rs. 2,500/ towards loss of estate, Rs. 2,000/
towards funeral expenses, Rs. 5,000/ towards
loss of consortium and thus awarded total
compensation of Rs. 3,76,700/ with interest at
the rate of 9% p.a. from the date of the filing
of the claim petition till its realisation.
Being aggrieved by the same, the insurance
company has preferred the present appeal.
3. Heard Ms. Aditi Raol, learned advocate for the
appellant. Though served, no one appears for
the respondents.
4. I have perused the original Record and
proceedings.
5. Ms. Raol has contended that it was an
application under Section 163A of the Act and
structure formula would apply, however, the
Tribunal has decided the application as if under
Section 166 of the Act. Relying upon the
judgment of this Court dated 16.07.2019 in First
Appeal No. 3472/09, it was contended by Ms. Raol
that the deceased was a pillion rider and
therefore, he cannot be termed as third party as
the accident has occurred because of the
motorcycle involved in the accident got slipped.
No other vehicle is involved in this accident.
On the aforesaid ground, Ms. Raol contended that
the impugned judgment and award deserves to be
C/FA/1290/2011 JUDGMENT
quashed and set aside. Ms. Raol also further
contended that the Tribunal has not properly
examined the fact and contentions raised by the
appellant that the driver of the motorcycle did
not possess a valid driving license on the date
of the accident. On the aforesaid grounds, it
was therefore contended that the appeal be
allowed by quashing and setting aside the
impugned judgment.
6. It is an admitted position that the application
was filed under section 163A of the Act. The
original record does not show that same was even
converted into an application under section 166
of the Act. The written statement filed by the
appellant clearly shows that the contention as
to valid license was taken before the Tribunal.
However, from the original record and
proceedings, we do not find that the issue which
is raised by the learned advocate for the
appellant that the pillion rider is not a third
party in facts of this case, is not taken before
the Tribunal, but is taken for the first time
before this Court. Be that it may be so, the
fact remains that the original claim filed by
the respondentclaimants was under Section 163A
of the Act and not under section 166 of the Act.
7. In light of the aforesaid facts, the impugned
judgment and award is hereby quashed and set
aside and the proceedings of MACP No. 1009/08 is
restored back to the file of Motor Accident
C/FA/1290/2011 JUDGMENT
Claims Tribunal at Rajkot for its rehearing
after due notice to the other side. The
Tribunal shall decide the claim petition de novo
in accordance with law as expeditiously as
possible. The Tribunal shall issue notice to
the respondents about hearing within a period of
15 days from the receipt of this order. It is
open for all the parties to raise all available
contention before the Tribunal including the
contention that the deceased being a pillion
rider, was not a third party. The Tribunal shall
examine all the issues as expeditiously as
possible and endevour to dispose of the claim
petition as expeditiously as possible preferably
by 30.06.2021. The appeal is allowed to the
aforesaid extent. Record and proceedings be
transmitted to the Tribunal forthwith.
(R.M.CHHAYA, J)
BIJOY B. PILLAI
