National Insurance Co. Ltd vs Andarsinh @ Ajaybhai Bhailalbhai ...
2021 Latest Caselaw 4410 Guj

         C/FA/227/2012                                          JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.             227 of 2012


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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                  NATIONAL INSURANCE CO. LTD
                             Versus
      ANDARSINH @ AJAYBHAI BHAILALBHAI BARIA/ PARMAR & 4
                            other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 5
RULE SERVED(64) for the Defendant(s) No. 2,3,4
RULE UNSERVED(68) for the Defendant(s) No. 1
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                             Date : 19/03/2021

                                 ORAL JUDGMENT

1. The present appeal is preferred by the appellant­insurance Company challenging interim award dated 28.11.2011 passed below

C/FA/227/2012 JUDGMENT

Exh.6 by the Motor Accident Claims Tribunal (Aux), Vadodara in Motor Accident Claim Petition No.507/07, granting interim compensation of Rs.25,000/­ under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for the sake of brevity).

2. By way of this appeal, the appellant­insurance Company has challenged the issue as regards liability of the insurance Company at the stage of adjudication of application under Section 140 of the Act.

3. Heard the learned advocates appearing for the respective parties and perused the impugned judgment and award.

4. Learned advocate for the appellant has, inter­ alia, contended that while considering the application under Section 140 of the Act, the Tribunal has not considered the fact that the appellant is not at all liable to satisfy any award. It is further contended that at the interim stage, the issue of extent of negligence of drivers of both the vehicles and liability of the insurance Company ought not to have been decided by the Tribunal and it can be decided at the time of full­fledged trial on appreciation of the evidence. It is, therefore, contended that the Tribunal could

C/FA/227/2012 JUDGMENT

not have passed the impugned award fastening the liability upon the insurance Company.

5. Since this appeal is against the interim award passed under Section 140 of the Act, wherein full­fledged trial is not provided and there appears no provision of adducing and leading oral as well as documentary evidence as it is to be done while carrying out the full­fledged trial, when the Tribunal has already fastened the liability upon the appellant­insurance Company and that too, at the interim stage, let the decision rendered by the Tribunal be considered as tentative decision at this stage.

6. Therefore, the 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 Tribunal shall decide the same on its own merits without being influenced by the decision rendered by the Tribunal itself while considering the application under Section 140 of the Act.

7.   However,         the    insurance            Company       shall        be      at






       C/FA/227/2012                                                JUDGMENT

liberty to agitate the said contention during the course of trial of main claim petition and at that time, if findings go in favour of the appellant­insurance Company, in that case, the Tribunal shall adjust the interim award passed by the Tribunal and further the Tribunal is directed not to treat the aforesaid observations as constructive res judicata.

8. Since this is an appeal against the interim award and main claim petition is pending before the Tribunal, it appears just and proper to dispose of this appeal at the admission stage with a direction to the Tribunal to decide the main claim petition as expeditiously as possible, preferably within a period of six months from the date of receipt of this order.

9. With the aforesaid observations and directions, the present appeal is disposed of without going into the merits of the matter keeping open to the Tribunal to adjudicate the issue raised in the matter at the time of trial in main claim petition. While considering the main claim petition, the Tribunal shall afford reasonable opportunity to the rival parties to proceed so far as the controversy raised in this matter is concerned and the Tribunal shall decide the said issue

C/FA/227/2012 JUDGMENT

without being influenced by any of the observations made by this Court at this stage.

(R.M.CHHAYA, J) BIJOY B. PILLAI