Gujarat High Court
Bajaj Allianz General Insurance ... vs Aswinbhai Raysingbhai Chauhan on 26 November, 2021
Bench: Vipul M. Pancholi
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1110 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD
Versus
ASWINBHAI RAYSINGBHAI CHAUHAN
=======================================================
Appearance:
MS KIRTI S PATHAK(9966) for the Appellant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 26/11/2021
ORAL JUDGMENT
1. The present appeal is filed under Section 173 of
the Motor Vehicles Act, 1988 (hereinafter referred
to as "MV Act" for short) challenging the interim
order dated 23.08.2018 passed by the Motor
Accident Claim Tribunal (Aux.), Additional
District Judge, Panchmahals, at Godhra passed
below application, Exh.5 in MACP No.220/2008.
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
2. Heard learned advocate, Ms.Kirti Pathak for the
appellant - Insurance Company. Though served, no
one appears for the original claimants.
3. It is pertinent to note at this stage that on
27.07.2021, while admitting the present Appeal,
this Court has specifically observed that even if
the respondents do not appear on that date after
service of the notice of admission of appeal, the
appeal would be taken up for consideration having
regard to the scope and ambit involved in the
controversy. Therefore, the present appeal is
taken up for final disposal.
4. It is submitted by learned advocate for the
appellant that the accident took place on
18.09.2007 at 21:00 hours near khabda village
road, which falls within the jurisdiction of Morva
Hadaf Police Station. It is the case of the
original claimant - present respondent that on the
date of incident, the claimant was going on his
motorcycle bearing Registration No.GJ-06-AF-179
and it collided with another motorcycle bearing
Registration No.GJ-17-A-2698 (insured with the
appellant - Insurance Company) and in the said
accident, the claimant sustained injuries,
therefore, the claim petition was filed before the
Claims Tribunal. It is submitted that the
respondent - Claimant also filed an application
under Section 140 of the MV Act and prayed that
the Insurance Company be directed to pay interim
compensation of Rs.25,000/- under Section 140 of
the MV Act. It is further submitted that though
the said application was filed in the year 2008,
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
for a period of 8 years, neither the claimant nor
his advocate remained present and, therefore vide
order dated 24.04.2017, the Tribunal disposed of
the said application, Exh.5 filed by the claimant.
It is further submitted that though the said
application was disposed of in absence of the
claimant and/or his advocate, the Claims Tribunal,
vide impugned order dated 23.08.2018, allowed the
said application and thereby held that the
claimant is entitled to recover an amount of
compensation Rs.25,000/- from the Insurance
Company and the original opponent nos.1 and 2 were
jointly and severally held liable to pay
compensation along with cost and interest @ 7.5%
p.a. from the date of application till the amount
is deposited in the office of the Tribunal. It is,
therefore, submitted that the appellant -
Insurance Company has challenged the said order by
filing the present appeal.
5. Learned advocate has mainly contended that the
principle of res judicata would be applicable to
the facts of the present case and once the
application, Exh.5 filed by the claimant has been
dismissed for non-prosecution, the Tribunal ought
not to have allowed the said application in
absence of any order of restoration of main
application. Learned advocate would thereafter
submit that the case of the claimant does not fall
under the provision contained in Section 140 of
the MV Act. It is submitted that the claimant has
not sustained any injury, which resulted into
permanent disablement of the claimant. It is
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
submitted that in the present case, the injury
sustained by the claimant was simple in nature.
Learned advocate for the appellant further submits
that in fact, the vehicle insured by the appellant
- Insurance Company is having Registration No.GJ-
17-Q-2698, however as per the FIR, vehicle number
mentioned therein is GJ-17-Q-6298.
6. At this stage, learned advocate for the appellant
has referred to separate compilation, which is
placed on record. From the said compilation, it is
pointed out that after the impugned order has been
passed by the Tribunal, immediately the claimant
has given withdrawal purshis before the Tribunal,
wherein it is stated that the claimant is not
interested to proceed with the main petition and
it was also prayed that the interim compensation
awarded by the Tribunal under the head of "no
fault liability" with interest be granted to the
claimant. It is also submitted that the said
application was given in Lok Adalat and the
Tribunal has passed an order on 08.09.2018,
whereby the claimant was permitted to withdraw the
said petition and accordingly, the main petition
came to be disposed of. Learned advocate has,
therefore, contended that looking to the conduct
of the claimant, the impugned interim order passed
by the Tribunal be quashed and set aside. It is
also contended that now when main petition filed
by the claimant itself is disposed of, the
appellant - Insurance Company would not get any
chance to plead the case before the Tribunal
pointing out that the claimant is not entitled to
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
claim any amount from the Insurance Company. It
is, therefore, urged that the impugned order
passed by the Tribunal be quashed and set aside.
7. Learned advocate for the appellant has placed
reliance upon following decisions,
(1) judgment in case of Satyadhyan Ghosal &
Ors. Vs. Smt. Deorajin Debi & Anr.,
reported in AIR 1960 SC 941;
(2) the order dated 23.03.2006 passed by the
High Court of Rajasthan in case of Savitri
Devi (Smt.) Vs. Ramesh Chand & Ors.;
(3) the order dated 20.11.2006 passed by this
Court in First Appeal No.2150/1983 in case
of United India Insurance Co. Ltd. Vs.
Laljibhai Hamirbhai & Ors;
(4) the order dated 03.11.2008 passed by the
High Court of Karnataka (Gulbarga Bench) in
Misc. First Application No.8488/2004 in
case of Veerappa & Ors. Vs. Siddappa &
Ors.;
(5) the order dated 30.06.2009 passed by the
High Court of Karnataka at Bangalore in
Misc. First Appeal No.3475/2008 in case of
Bajaj Allianz General Insurance Co. Ltd.
Vs. B.C. Kumar and Yoganarsimha;
(6) the order dated 28.02.2017 passed by the
High Court of Karnataka at Bangalore in
Misc. First Appeal No.5841/2016 in case of
K.L. Vidyashankar Vs. Guruprasad GC;
8. This Court has considered the submissions
canvassed by learned advocate for the appellant
and also perused the material placed on record
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
including separate compilation provided by learned
advocate for the appellant. From the record, it
emerges that the respondent - Claimant had filed
MACP No.220/2008 before the concerned Tribunal and
along with the said petition, the respondent -
claimant filed separate application, Exh.5 under
Section 140 of the MV Act and requested that
interim compensation of Rs.25,000/- be awarded to
the claimant as he has sustained injuries in the
accident in question. It further transpires from
the record that the said application was filed in
the year 2008, however for a period of 8 years,
the respondent - claimant nor his advocate
remained present and, therefore, the Tribunal
passed an order on 24.04.2017, whereby the said
application came to be disposed of for non-
prosecution and, thereafter as per the submission
canvassed by learned advocate for the appellant,
no separate order of restoration of the said
application came to be passed and surprisingly now
the impugned order has been passed by the
Tribunal, whereby the appellant herein is directed
to pay interim compensation of Rs.25,000/- and the
original opponent nos.1 and 2 were jointly and
severally held liable to pay compensation along
with cost and interest @ 7.5% p.a. from the date
of application till the amount is deposited in the
office of the Tribunal.
9. It is specifically contended by learned advocate
for the appellant on the basis of the injury
certificate dated 25.12.2007 that the respondent -
claimant had received grievous injuries, however,
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
there is no permanent disablement. At this stage,
this Court would like to refer to the provisions
contained in Sections 140 and 142 of the MV Act,
which provides as under,
"140. Liability to pay compensation in certain
cases on the principle of no fault.-
(1) Where death or permanent disablement of
any person has resulted from an accident
arising out of the use of a motor
vehicle or motor vehicles, the owner of
the vehicles shall, or, as the case may
be, the owners of the vehicles shall,
jointly and severally, be liable to pay
compensation in respect of such death or
disablement in accordance with the
provisions of this section.
(2) The amount of compensation which shall be
payable under subsection (1) in respect
of the death of any person shall be a
fixed sum of [fifty thousand rupees] and
the amount of compensation payable under
that sub-section in respect of the
permanent disablement of any person
shall be a fixed sum of [twenty - five
thousand rupees].
(3) In any claim for compensation under sub-
section (1), the claimant shall not be
required to plead and establish that the
death or permanent disablement in
respect of which the claim has been made
was due to any wrongful act, neglect or
default of the owner or owners of the
vehicle or vehicles concerned or of any
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
other person.
(4) A claim for compensation under sub-
section (1) shall not be defeated by
reason of any wrongful act, neglect or
default of the person in respect of
whose death or permanent disablement the
claim has been made nor shall the
quantum of compensation recoverable in
respect of such death or permanent
disablement be reduced on the basis of
the share of such person in the
responsibility for such death or
permanent disablement.
(5) Notwithstanding anything contained in
sub- section (2) regarding death or
bodily injury to any person, for which
the owner of the vehicle is liable to
give compensation for relief, he is also
liable to pay compensation under any
other law for the time being in force :
Provided that the amount of such
compensation to be given under any other law
shall be reduced from the amount of
compensation payable under this section or
under section 163- A].
142. Permanent disablement. - For the purposes of
this Chapter, permanent disablement of a
person shall be deemed to have resulted from
an accident of the nature referred to in sub-
section (1) of section 140 if such person has
suffered by reason of the accident, any
injury or injuries involving :-
(a) permanent privation of the sight of
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
either eye or the hearing of either ear,
or privation of any member or joint; or
(b) destruction or permanent impairing of
the powers of any members or joint; or
(c) permanent disfiguration of the head or
face."
10. Thus from the aforesaid provision, it is clear
that the liability to pay compensation in certain
cases on the principle of no fault liability
occurs when there is permanent disablement of any
person, which has resulted from an accident
arising out of the use of motor vehicle. In the
present case, in absence of any permanent
disablement of the respondent - claimant, it was
not open for the concerned Tribunal to award
interim compensation of Rs.25,000/- in favour of
the respondent - claimant. In case of K.L.
Vidyashankar (supra), the High Court of Karnataka
at Bangalore has observed in Paragraph Nos.6, 15
and 16 as under,
"6. The Tribunal, after considering the arguments
addressed by the parties, held that the
claimant has sustained deformity of the right
arm which does not come within the purview of
Section 140 of the Act. As per Section 142 of
the Act, in order to claim interim
compensation, either death or permanent
disablement has to be resulted from the
accident arising out of use of the motor
vehicle or motor vehicles. Section 142 deals
with the permanent disablement. The injuries
sustained by the claimant do not fall under
any of the injuries as enumerated under
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
Section 142 of the Act and accordingly
dismissed the application filed under Section
140 of the Act, by its order dated 14-07-
2016. Being aggrieved by the said order, the
appellant has filed this appeal.
15. In the case on hand, the claimant is a
practicing advocate. As on today, he is
actively practicing. The injury sustained by
the claimant is only deformity of right arm
and other simple injuries. The injuries
sustained by the claimant will not fall under
the purview of Section 142 of the Act and to
claim interim compensation under Section 140
of the Act under the principle of "No Fault
Liability", there must be death of permanent
disablement resulted from such accident.
16. Sections 140 to 144 of the Act falling under
Chapter X of the Act corresponding to Section
92(A) to 92(E) of Chapter- VII A of 1939 Act.
Section 140 provides inter alia that in case
of death or permanent disablement of any
person as a result of accident, arising out
of use of the motor vehicle, the owner shall
be liable to pay the interim compensation on
the principle of no fault as detailed under
sub-Section (2) thereof. To maintain the
claim of interim compensation, the negligence
or the default on the part of the person in
respect of whose death or permanent
disablement, the claim has been made, is no
ground to deny the interim compensation nor
is the owner protected from the liability to
pay the compensation under any other law for
C/FA/1110/2020 JUDGMENT DATED: 26/11/2021
time being in force. No doubt, Section 140 of
the Act provides that the interim
compensation is to be paid by the owner but
once an insurance policy in terms of chapter
XI is in force covering the liability against
the third party risk, then by virtue of
definition of liability under Section 145(e),
the interim compensation is also included or
covered by the said policy and the insurance
company also become liable to pay interim
compensation."
11. It has also emerged from the record that after the
impugned order has been passed by the Tribunal,
the respondent - claimant had withdrawn the
petition filed by him under Section 166 of the MV
Act in Lok Adalat.
12. In view of the aforesaid discussion, the present
First Appeal stands allowed. The impugned order
dated 23.08.2018 passed by the Motor Accident
Claim Tribunal (Aux.), Additional District Judge,
Panchmahals, at Godhra passed below application,
Exh.5 in MACP No.220/2008 is hereby quashed and
set aside. Registry to refund the amount deposited
by the appellant as per the order dated 04.03.2020
after due verification by issuing Account Payee
Cheque.
Sd/-
(VIPUL M. PANCHOLI, J.)
Gautam
