New India Assurance Co Ltd vs Indiraben Chandrakantbhai ...
2021 Latest Caselaw 16792 Guj

     C/FA/1099/2021                              ORDER DATED: 26/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO. 1099 of 2021
                               With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                In R/FIRST APPEAL NO. 1099 of 2021
                               With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
                           NO. 2 of 2021
                In R/FIRST APPEAL NO. 1099 of 2021
==========================================================
                  NEW INDIA ASSURANCE CO LTD
                             Versus
          INDIRABEN CHANDRAKANTBHAI GORIYA & 5 other(s)
==========================================================
Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MS. VRUNDA C SHAH(6702) for the Defendant(s) No. 6
NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3,4,5
==========================================================

 CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                            Date : 26/10/2021

                             ORAL ORDER

1. The appellant insurance company has preferred

present appeal under Section 173 of the Motor Vehicles

Act 1988 ("M.V. Act" for short) to assail judgement and

award dated 20.10.2020 passed by 9th Addl. District and

Sessions Judge, M.A.C.T. (Aux.IX), Ahmedabad (Rural) in

in M.A.C.P. No. 127 of 2014

2. Mr. Thakkar, learned advocate for the appellant

insurance company submits that the permit of the bus

C/FA/1099/2021 ORDER DATED: 26/10/2021

was valid from 8.8.2013 to 7.8.2018. He, therefore,

submits that on 5.7.2013 when the unfortunate accident

happened there was no permit to ply the offending bus.

He, therefore, stoutly submits that the Tribunal has

committed a grave error in fastening liability on the

appellant insurance company, as the offending bus was

being driven in violation of condition of the insurance

policy. He, therefore, urges that appeal may be allowed

and the appellant insurnace company may be exonerated

from its liability to pay the compensation.

3. Mr. Nishit Bhalodi, learned advocate for the

claimants has supported the impugned judgment and

award. He submits that the arguments canvassed by the

learned advocate for the appellant has no merits, as the

issue of no permit was not raised by the appellant before

the Tribunal nor any evidence in that regard was

adduced. He, therefore, submits that the impugned

judgment and award does not call for any interference in

this appeal.

C/FA/1099/2021 ORDER DATED: 26/10/2021

4. I have considered the rival submissions and I have

also perused the impugned judgement and award of the

Tribunal.

5. Before examining the contention raised by the

learned advocate for the appellant insurance company, it

is apposite to refer the judgement of the Supreme Court

in case of Mohd. Akram Ansari vs. Chief Election

Officer and others reported in (2008) 2 SCC 95

wherein it is held as under:-

"14. In this connection we would like to say that

there is a presumption in law that a Judge deals

with all the points which have been pressed

before him. It often happens that in a petition

or appeal several points are taken in the

memorandum of the petition or appeal, but at

the time of arguments only some of these points

are pressed. Naturally a Judge will deal only

with the points which are pressed before him in

the arguments and it will be presumed that the

appellant gave up the other points, otherwise

C/FA/1099/2021 ORDER DATED: 26/10/2021

he would have dealt with them also. If a point is

not mentioned in the judgment of a Court, the

presumption is that that point was never

pressed before the learned Judge and it was

given up. However, that is a rebuttable

presumption. In case the petitioner contends

that he had pressed that point also (which has

not been dealt with in the impugned judgment),

it is open to him to file an application before the

same learned Judge (or Bench) which delivered

the impugned judgment, and if he satisfies the

Judge (or Bench) that the other points were in

fact pressed, but were not dealt with in the

impugned judgment, it is open to the concerned

Court to pass appropriate orders, including an

order of review. However, it is not ordinarily

open to the party to file an appeal and seek to

argue a point which even if taken in the petition

or memorandum filed before the Court below,

has not been dealt with in the judgment of the

Court below. The party who has this grievance

C/FA/1099/2021 ORDER DATED: 26/10/2021

must approach the same Court which passed

the judgment, and urge that the other points

were pressed but not dealt with."

6. It is thus eminently clear from the decision of the

Supreme Court that a parties to the litigation has to not

only raise the defences in the written statement but has

to press it into service at the time of hearing of the case.

7. It emerges from the impugned judgment that the

appellant had resisted the claim petition by filing written

statement Exh.15 wherein it was essentially contended

that the driver of the offending bus was not holding legal,

valid and effective driving license to drive the bus at the

time of the accident which amounts to breach of terms of

condition of policy. It was also contended that the

accident had happened on account of negligence on the

part of the deceased himself.

C/FA/1099/2021 ORDER DATED: 26/10/2021

8. In the aforesaid premises it was urged that the

insurance company may be exonerated from its liability to

pay the compensation.

9. It is thus clear that the appellant insurance company

has not at all raise the issue / defence that the offending

bus was not having a permit to ply the bus nor any

evidence is adduced with regard to the absence of permit

to ply the bus at the time of the accident.

10. In view of the above, undisputed factual scenario, I

am of the considered view that the Tribunal has not

committed any error in fastening the liability of payment

of compensation on the appellant and therefore, the

impugned judgment and award does not warrant any

interference in this appeal.

11. For the foregoing reasons, the appeal fails and is

hereby dismissed.

C/FA/1099/2021 ORDER DATED: 26/10/2021

ORDER IN CIVIL APPLICATION (FOR STAY) No.1 of

Learned advocate for the applicant insurance

company submits that the amount of compensation with

interest and proportionate cost is deposited in the

Tribunal in compliance of the order of this Court.

Learned advocate for the claimants confirms that the

compensation amount is deposited by the insurance

company.

As the appeal preferred by the applicant insurance

company is dismissed, the stay of the impugned judgment

and award is hereby vacated and the Tribunal is directed

to disburse the amount of compensation deposited by the

appellant insurance company in favour of the claimants in

terms of the impugned judgement and award.

Present civil application for stay is not disposed of.

Rule is discharged.

ORDER IN CIVIL APPLICATION NO.2 OF 2021

Heard learned advocates for the parties.

C/FA/1099/2021 ORDER DATED: 26/10/2021

In view of the dismissal of the main First Appeal and

the order passed on the Civil Application for stay, present

civil application for the disbursement of the compensation

amount does not survive and the same stands disposed of

accordingly.

(A.G.URAIZEE, J) SURESH SOLANKI