Gujarat High Court
Iffco Tokio General Insurance ... vs Sanjay S/O Kachrabhai Rathod on 8 March, 2021
Bench: Nikhil S. Kariel
C/FA/1039/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1039 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/FIRST APPEAL NO. 1039 of 2021
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IFFCO TOKIO GENERAL INSURANCE CO.LTD.
Versus
SANJAY S/O KACHRABHAI RATHOD
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR.KARNA H DHOMSE(6684) for the Defendant(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 08/03/2021
ORAL ORDER
ORDER IN FIRST APPEAL :-
1. Heard Mr.R.P.Raval, learned advocate for the
appellant and Mr.K.H.Dhomse, learned advocate for
the defendants.
2. Mr.K.H.Dhomse, learned advocate for the
defendants further submits that he does not
represent the defendant no.5 herein, but due to
some mistake by his clerk, he is shown
representing the defendant no.5 and therefore, he
will file appropriate note for withdrawing his
name as the learned advocate representing the
defendant no.5.
3. Considering the submissions made by
Mr.R.P.Raval, learned advocate for the appellant,
Admit.
4. Issue notice of admission returnable on 27th
C/FA/1039/2021 ORDER
April, 2021.
5. Mr.K.H.Dhomse, learned advocate waives
service of notice of admission for the defendant
nos.1 to 4.
6. Registry to call for R & P from the concerned
tribunal on or before 20th April, 2021.
ORDER IN CIVIL APPLICATION :-
1. Heard Mr.R.P.Raval, learned advocate for the
appellant and Mr.K.H.Dhomse, learned advocate for
the defendants.
2. By way of the present application, the
applicant prays for staying the impugned judgment
and award dated 04.11.2019 passed by the Motor
Accident Claims Tribunal (Auxi-2), At Gandhidham
- Kachchh in M.A.C.P.No.114 of 2014.
3. Mr.R.P.Raval, learned advocate for the
appellant draws attention of this Court to the
fact that the parties to the impugned judgment
and award except the Insurance Company, are
relatives, whereas the respondent nos.1 to 4 are
sons of the respondent no.5 herein and whereas
the deceased was the mother of the respondent
nos.1 to 4 and wife of the respondent no.5. He
further submits that it is inter-alia directed
the applicant - Insurance Company to pay the
amount of compensation in favour of the claimants
C/FA/1039/2021 ORDER
firstly and thereafter, to recover the same from
the opponent no.1 being the driver and owner of
the offending vehicle. He further submits that
the implementation of the order would come to
this that the Insurance Company will have to
deposit money in favour of the respondent nos. 1
to 4, who are sons and then, will have to
initiate proceedings to recover the same from the
respondent no.5, who is the father. He further
submits to consider peculiar facts of this case
and this Court may stay the award till final
disposal of the appeal. He further submits that
he is ready and willing to conduct the appeal on
any short date, which is convenient to this
Court.
4. On the other hand, Mr.K.H.Dhomse, learned
advocate for the respondent nos.1 to 4 strongly
opposes this application by saying that all these
facts were presented before the learned tribunal
and since the learned tribunal has passed the
order of pay and recover considering overall
facts and circumstances and considering the same,
this Court may not interfere at this stage.
5. Having heard the learned advocates for the
respective parties and more particularly,
considering the peculiar nature of this case,
where the Insurance Company is saddled with the
liabilities and also saddled with direction to
C/FA/1039/2021 ORDER
pay to the claimants, who happen to be sons of
the respondent no.5 from whom the Insurance
Company is directed to recover the same.
Therefore, it would amount to this that sons
would recover the amount awarded from the father
through the Insurance Company and whereas, the
Insurance Company, if the award is not stayed,
would be recovering the amount from the father,
after having paid the same to the sons.
6. In this peculiar view of the facts, this
Court is of the considered opinion that the
impugned judgment and award requires to be stayed
pending the final decision upon the first appeal.
7. Hence, the impugned judment and award dated
04.11.2019 passed by the Motor Accident Claims
Tribunal (Auxi-2), At Gandhidham - Kachchh in
M.A.C.P.No.114 of 2014 is stayed pending the
final decision of the First Appeal No. 1039 of
2021.
8. With the above directions and observations,
the present application is allowed to the
aforesaid extent.
(NIKHIL S. KARIEL,J)
MOHMMEDSHAHID
