Icici Lombard General Insurance ... vs Manishaba Kanaksinh Jadeja
2021 Latest Caselaw 6689 Guj

       C/FA/4865/2019                               IA ORDER DATED: 22/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      MISC. CIVIL APPLICATION (FOR CLARIFICATION) NO. 1 of 2021
                   In R/FIRST APPEAL NO. 4865 of 2019
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MANISHABA KANAKSINH JADEJA Versus ICICI LOMBARD GENERAL INSURANCE COMPANY LTD ========================================================== Appearance:

MR. HEMAL SHAH for the PETITIONER(s) No. MR CHIRAYU A MEHTA for the RESPONDENT(s) No. MR PALAK H THAKKAR for the RESPONDENT(s) No. MR VIBHUTI NANAVATI for the RESPONDENT(s) No. ==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

Date : 22/06/2021

IA ORDER

Draft amendment dated 16.3.2021 already forming part of the papers of the present civil application, is allowed, to be carried out forthwith.

2. Heard learned advocates for the respective parties.

3. By filling this application, the applicants claimants have prayed to clarify and modify the order dated 24.1.2020 passed in Civil Application (for stay) No.1 of 2019 in First Appeal No. 4865 of 2019. By the said order, stay against the impugned judgment and award dated 11.4.2019 passed by the Motor Accident Claims Tribunal (Auxi.), Jamnagar, in Motor Accident Claim Petition No. 15 of 2009 came to be granted on condition of depositing the entire amount.

4. The accident had occurred between the Toofan Jeep bearing registration No. GJ-10W-1896 and Tractor bearing registration No. GJ-1- FQ-082 and Trolley attached therewith bearing no. GJ-10Y-0736. The

C/FA/4865/2019 IA ORDER DATED: 22/06/2021

deceased was travelling in the said Toofan Jeep on the date of accident which was on 29.12.2008. The Toofan Jeep was insured with respondent No.7 Chola Mandalam General Insurance Company Limited. The Tractor and Trolley was insured with the appellant insurance company. In the judgment and award, the Tribunal held that interse negligence between the said two vehicles in the ratio of 60 x 40. The Tractor was held to be negligent to the extent of 60% whereas the Toofan Jeep, in which the claimant was traveling, was held to be negligent to the extent of 40%.

5. While the stay was granted, the court exempted the insurance company from depositing the amount, as it was demonstrated before the court by the appellant insurance company by producing copy of the policy issued by the insurance company and the one produced by the claimants to show that the claimants had produced a fake policy to bring the scheme coverage within policy and to falsely suggest that coverage was existed on the date of accident. There was no coverage policy on that date.

5.1 In the context of the above order dated 24.1.2012, learned advocate for the applicant submitted that the entire judgment and award of the Claims Tribunal has been stayed which may not be done in view of the apportionment of liability of the compensation between the two insurance companies, that is the appellant insurance company and respondent No.7 insurance company. It was submitted that 40% liability adjudged for respondent No.7 insurance company has become final and the said insurance company has not preferred any appeal and has deposited 40% of the awarded amount before the Tribunal, in respect of which the claimants could legitimately claim disbursement.

5.2     Learned advocate for the applicants would submit that when the





       C/FA/4865/2019                                IA ORDER DATED: 22/06/2021

applicants approached the Tribunal to seek withdrawal of the said 40% amount, the Tribunal was not able to pass the order of disbursement in view of order dated 24.1.2020 passed in the First Appeal whereby the entire judgment and award of the Tribunal has been stayed. It was submitted that in view of the above facts, necessary clarification is required to be made so that the applicants claimants can get 40% amount disbursed which is deposited by the respondent No.7 insurance company.

6. In the facts of the case and in view of the judgment and ward of the Tribunal, the prayer for clarification is eminently justified.

6.1 As a result, it is provided that order dated 24.1.2020 passed in Civil Application ( for stay) No. 1 of 2019 in First Appeal No. 4863 of 2019 shall not apply to the amount of liability to the extent of 40% deposited by respondent No.7 insurance company with the Claims Tribunal concerned. The stay shall operate in respect of the liability fastened on the appellant ICICI Lombard General Insurance Company Limited only, whose liability is fixed to be 60%.

6.2 The above order dated 24.1.2020 stands clarified and modified accordingly, which will permit the Tribunal concerned to disburse the 40% amount deposited by the respondent No.7 Chola Mandalam General Insurance Company Limited in favour of the claimants after following necessary procedure and verifying the identity etc..

7. The application is disposed of in terms of the above clarification and directions.

(N.V.ANJARIA, J) C.M. JOSHI