Gujarat High Court
United India Insurance Co.Ltd ... vs Rathod Bhavnaben Wd/O Kiritsinh on 21 October, 2021
Bench: R.M.Chhaya
C/FA/7/2019 JUDGMENT DATED: 21/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 7 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/FIRST APPEAL NO. 7 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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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 NO
of India or any order made thereunder ?
==========================================================
UNITED INDIA INSURANCE CO.LTD THROUGH AUTHORISED
SIGNATORY
Versus
RATHOD BHAVNABEN WD/O KIRITSINH
==========================================================
Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR AV PRAJAPATI(672) for the Defendant(s) No. 1,2,3
MR HARESH H PATEL(611) for the Defendant(s) No. 5
NOTICE SERVED(4) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 21/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/7/2019 JUDGMENT DATED: 21/10/2021
1. Feeling aggrieved and dissatisfied by the judgment and
award dated 08th August, 2018, passed by third Motor
Accident Claims Tribunal (Auxi.), Mehsana at Visnagar, in Motor
Accident Claim Petition No. 1534 of 2012 (Old MACP No. 122
of 2012), the appellant - United India Insurance Company
Limited has preferred 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 It is the case of the original claimant before the Tribunal
that the accident took place on 11.12.2011 at about 4:00 p.m.
It is further case of the original claimant that when the
deceased was checking the water pipe at Himalaya
International Co. Ltd., at that time, the driver of JCB machine
reversed his JCB in a negligent manner, because of which, the
rear wheel of JCB roll over the head of the deceased and
ultimately the deceased succumbed to the injuries. The record
indicates that, as per the claimant, the deceased was earning
Rs.12,000/- per month. An FIR was lodged with Vadnagar
Police Station at Exh.16. The claimants preferred the present
claim petition under Section 166 of the Act and claimed total
compensation of Rs. 25,00,000/-.
2.2 One of the original claimant was examined at Exh.12 and
the original claimant had also relied upon the documentary
evidence such as certified copy of complaint at Exh.16,
certified copy of panchnama of the place of incident at Exh.17,
certified copy of inquest panchnama at Exh.18, certified copy
of P.M. Note at Exh.19, copy of tax invoice of JCB at Exh.20,
copy of receipt of insurance premium at Exh.21, copy of letter
C/FA/7/2019 JUDGMENT DATED: 21/10/2021
written by Himalaya International Limited to the deceased
regarding increasing of salary at Exh.26 and identity card of
deceased at Exh.25.
2.3 The Tribunal, after 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.25,18,000/- with interest at the rate of 9% p.a. from the
date of filing claim petition till the realization with
proportionate costs. Being feeling and aggrieved by the same,
the appellant - insurance company has preferred this appeal.
3. We have heard Mr. Maulik J. Shelat, learned advocate for
the appellant, Mr. A.V. Prajapati, learned advocate for the
respondents No.1 to 3-original claimants and Mr. H.H. Patel,
learned advocate for the respondent No.5-owner of the vehicle
and have also perused the original record and proceedings.
With the consent of the learned advocates appearing for the
respective parties, the appeal is taken up for final disposal
today.
4. Mr. Maulik J. Shelat, learned advocate appearing for the
appellant-insurance company has contended that the
documents at Exh.25 and Exh.26 i.e. the identity card of
deceased and the copy of letter written by the Himalaya
International Limited to the deceased regarding increasing of
salary were brought on record by filing an application Exh.24
which was never served to the appellant and the Tribunal had
exhibited the same without even affording any opportunity of
being heard to the appellant.
C/FA/7/2019 JUDGMENT DATED: 21/10/2021
4.1 Mr. Shelat, learned advocate for the appellant-insurance
company has submitted that the specific contention to that
effect has been taken in the written submission, still however,
the same has not been considered by the Tribunal. Mr. Shelat,
learned advocate for the appellant further referring to Exh.29
submitted that even other aspects more particularly the
contention to that effect that the accident had occurred in a
private place, and therefore, the appellant-insurance company
is not liable to pay the compensation though specifically
averred in the written arguments which cause prejudice to the
appellant. On the aforesaid ground, learned advocate for the
appellant has submitted that the impugned judgment and
award is bad in law and facts and the appeal be allowed and
the impugned judgment and order deserves to be quashed and
set aside and the proceedings of MACP No. 1534 of 2012
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.
5. Per contra, Mr. A.V. Prajapati, learned advocate
appearing for the respondents-original claimants after perusal
of the Record & Proceedings has candidly submitted that
Exh.25 and Exh.26 were produced by the original claimants
before the Tribunal and the same would not at all prejudice to
the rights of the appellant. He contended that the Tribunal has
committed no error in appreciating the evidence on record. He
further contended that though the Tribunal gave ample
opportunity, however, the same was not availed by the
appellant; therefore the appeal being meritless, deserves to
be dismissed.
C/FA/7/2019 JUDGMENT DATED: 21/10/2021
6. Mr.H.H. Patel, learned advocate appearing on behalf of
the respondent No.5-owner of the vehicle contended that the
respondent No.5 - owner of the vehicle should also be given an
opportunity to adduce the evidence and be permitted to raise
all the contentions as rebuttal contention which are raised by
the insurance-company.
7. No other or further submissions have been raised by the
learned counsel appearing for the parties.
8. At the outset, it is required to be noted that the MACP
proceedings before the Tribunal, the owner of the vehicle has
not preferred to remain present and therefore the impugned
judgment and order was passed in presence of the claimants.
Be that it may so, it is open for the respondent No.5 now
represented by learned advocate Mr.H.H.Patel is permitted to
appear before the Tribunal. On perusal of the Record &
Proceedings, we find that the Tribunal has straightway passed
the impugned order below application Exh.24 and we do not
find any endorsement and the same has been even perused by
the learned advocate for the appellant. Apart from the fact
that such contentions have been raised in the written
submissions Exh.30, we are satisfied that the Exh.25 and
Exh.26 have been exhibited by the Tribunal without affording
any opportunity to deal with the same. In the aforesaid facts
and circumstances of this appeal, we deem it fit to quash and
set aside the impugned judgment and award and the
proceedings of MACP No. 1534 of 2012 deserves to be restored
back to the file of Motor Accident Claims Tribunal (Auxi.),
Mahesana at Visnagar for its rehearing on merits.
C/FA/7/2019 JUDGMENT DATED: 21/10/2021
9. For the foregoing reasons, the appeal is allowed. The
judgment and award dated 08th August, 2018, passed by third
Motor Accident Claims Tribunal (Auxi.), Mehsana at Visnagar, in
M.A.C.P. No. 1534 of 2012 (Old MACP No. 122 of 2012) 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 parties to the claim petition shall
remain present before the Tribunal on 22nd November, 2021.
All the parties are permitted to adduce further documentary as
well as oral evidence. The Tribunal shall rehear the parties
and consider the claim petition afresh and pass a fresh award
without in any manner being influenced by the earlier order as
well as any observations made by this court. Such exercise
shall be completed latest by 30th June, 2022.
10. It is the matter on record that, while passing the order on
Civil Application, the ad-interim relief as prayed for in para 3(A)
of the civil application was granted on condition that the
applicant-appellant herein shall deposit the entire awarded
amount before the returnable date. Mr. Maulik Shelat, learned
advocate for the appellant states that, as per the said order,
the entire amount as awarded by the Tribunal has already
been deposited before the Tribunal.
11. Mr.Prajapati, learned advocate for the respondents-
original claimants states that the amount deposited by the
appellant-insurance company may be disbursed to the
claimants.
12. Out of the total compensation which has been deposited
by the appellant-insurer before the Tribunal, 30% is ordered to
C/FA/7/2019 JUDGMENT DATED: 21/10/2021
be disbursed in favour of the respondents-original claimants
and balance 70% shall be kept in a fixed deposit scheme in a
Nationalised Bank with cumulative effect 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. No costs in this appeal.
13. In view of the same, Civil Application No. 1 of 2018
stands also disposed of with no order as to costs.
Record & Proceedings be sent to the tribunal forthwith.
(R.M.CHHAYA,J)
(SAMIR J. DAVE,J)
A.M.A. SAIYED
