Tata Aig General Insurance Co Ltd vs Raval Jyotsnaben Wd/O Ramanbhai ...
2021 Latest Caselaw 16208 Guj

     C/FA/5470/2019                          JUDGMENT DATED: 14/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/FIRST APPEAL NO. 5470 of 2019
                            With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
                       NO. 1 of 2021
            In R/FIRST APPEAL NO. 5470 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

and
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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                 TATA AIG GENERAL INSURANCE CO LTD
                               Versus
             RAVAL JYOTSNABEN WD/O RAMANBHAI JIVANBHAI
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Appearance:
MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1
MR KK THAKKAR(2834) for the Defendant(s) No. 1,4,5
NOTICE SERVED BY DS(5) for the Defendant(s) No. 2,3
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    CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
          KUMAR
          and
          HONOURABLE MR. JUSTICE R.M.CHHAYA

                         Date : 14/10/2021

                           ORAL JUDGMENT

C/FA/5470/2019 JUDGMENT DATED: 14/10/2021

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied by the judgment and award dated 30.04.2019 passed by the Motor Accident Claims Tribunal (Main) at Patan in MACP No. 128/17, the insurance company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The following facts emerge from the record of the appeal -

2.1 The accident took place on 07.04.2017. It is the case of the respondents-original claimants that the deceased was driving the motorcycle bearing registration no. GJ-2S-8807 and was travelling towards village Lanva at the place of his service. It is further the case of the claimants that at about 5.30 AM on the date of accident when the deceased reached village Pipal, near Sai Pipe Factory, a Pick- up Jeep bearing registration No. GJ-2VV-9043, being driven in rash and negligent manner, came from the other side and dashed with the motorcycle driven by the deceased. The deceased Ramanbhai received serious injuries in the accident and succumbed to the same during the course of treatment. An FIR was lodged with the jurisdictional police station at Exhibit 19. The claimants preferred the present claim petition under Section 166 of the Act and claimed total compensation of Rs. 25,00,000/-. It was the case of the respondents-original claimants that the

C/FA/5470/2019 JUDGMENT DATED: 14/10/2021

deceased was working as an Operator in Water Works and earned salary of Rs. 10,000/- per month and was also earning Rs. 10,000/- from agricultural activities and thus, it was the case of the respondents-original claimants that the total income of the deceased was Rs.20,000/- per month on the date of the accident. It was the case of the original claimants that the deceased was 33 years and 9 months old on the date of the accident. The Respondents contended before the Tribunal that the accident occurred because of the sole negligence of the driver of the pick-up jeep. The respondents also relied upon the documentary evidence such as FIR at Exhibit 19, panchnama of the scene of accident at exhibit 20, inquest panchnama at exhibit 21, P.M. Note at exhibit 22, pay-slip at exhibit 23 and school leaving certificate of the deceased at exhibit 24. One of the claimants, widow of the deceased Ramanbhai, was examined at exhibit 14.

2.2 The Tribunal was pleased to issue notice to the original respondents in the claim petition including the present appellant. However, no one appeared before the Tribunal. The Tribunal, therefore considering the submissions advanced by the original claimants by the impugned judgment and award, partly allowed the claim petition and awarded a sum of Rs. 14,88,900/- with 9% interest from the date of the claim petition till its realisation. Being aggrieved by the same, the appellant insurance company has preferred this appeal.

C/FA/5470/2019 JUDGMENT DATED: 14/10/2021

3. This Court, by an order dated 12.03.2020, was pleased to issue notice for final disposal. We have also perused the copies of the relevant evidence produced by the learned counsel for the appellant.

4. Heard Mr. Rathin Raval, learned advocate for the appellant and Mr. Kaash Thakkar, learned advocate for the original claimants.

5. Mr. Rathin Raval, learned advocate appearing for the appellant contended that though the appellant had intimated his local advocate to appear in the matter, however due to some miscommunication, the Vakalatnama of the advocate was not filed which resulted into ex parte order being passed. It was also contended that the Tribunal has misread the evidence and has not considered the fact that the accident occurred on 07.04.2017 whereas the FIR was lodged on 16.04.2017 and panchnama was prepared after 11 days of the accident. Mr. Raval submitted that such important evidence has been misread by the learned Tribunal and therefore, the impugned judgment and award is bad in law and facts and the appeal deserves to be considered. Mr. Raval contended that in the alternative, the impugned judgment and order deserves to be quashed and set aside and the proceedings of MACP No. 128/17 deserves to be remanded back for fresh hearing on merits after giving an opportunity to the parties to adduce and produce appropriate evidence before the Tribunal.

6. Per contra, Mr. Kaash Thakkar, learned advocate

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appearing for the respondents-original claimants has opposed this appeal. Mr. Thakkar contended that the Tribunal has committed no error in appreciating the evidence on record. Mr. Thakkar contended that having failed to file even appearance before the Tribunal, the appellant-insurance company may not be permitted to contend that it is an ex parte order. Mr. Thakkar further contended that though the Tribunal gave ample opportunity, however, the same was not availed by the appellant. Mr. Thakkar contended that the appeal being meritless, deserves to be dismissed.

7. No other or further submissions have been raised by the learned counsel appearing for the parties.

8. Having heard the learned advocates appearing for the parties, it is a matter of fact that the Tribunal has appreciated the evidence that was adduced by the respondents-original claimants and passed the award in absence of the appellant. It is no doubt true that the appellant was given opportunity to appear before the Tribunal, and the appellant did instruct its local advocate, but his appearance was not filed because of which, ex parte award has been passed by the learned Tribunal.

9. Considering the fact that as the appellant- insurance company has lost its right to defend because of the miscommunication with the advocate, in peculiar facts and circumstances of this appeal, we deem it fit to give one more opportunity to the

C/FA/5470/2019 JUDGMENT DATED: 14/10/2021

appellant.

10. In light of the aforesaid, considering the fact that the appellant may have legal defence, the impugned judgment and award deserves to be quashed and set aside and the proceedings of MACP No. 128/2017 deserves to be restored back to the file of Motor Accident Claims Tribunal (Main) Patan for its rehearing on merits.

11. The appeal is allowed. The judgment and award passed by the Motor Accident Claims Tribunal(Main) at Patan in MACP No.128 of 2017 dated 30.04.2019 is set aside and the matter stands remitted back to the Tribunal for disposal afresh on merits and in accordance with law as observed hereinabove. The Tribunal shall expeditiously dispose of the matter at any rate within an outer limit of 31-03-2022.

12. Out of the total compensation which has been deposited by the appellant-insurer before the Tribunal, 30% is ordered to be disbursed in favour of the claimants and balance 70% shall remain in deposit till disposal of the claim petition. It is made clear that the Tribunal would be at liberty to pass suitable orders with regard to payment, apportionment and disbursement. Cost made easy.

Civil Application (for Withdrawal/Disbursement

C/FA/5470/2019 JUDGMENT DATED: 14/10/2021

Of Amount) No. 1 Of 2021 stands disposed of accordingly.

(ARAVIND KUMAR,CJ)

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