Iffco-Tokio General Insurance Co ... vs Legal Heirs Of Decd. Sanabhai ...
2022 Latest Caselaw 239 Guj

      C/FA/1165/2013                               ORDER DATED: 07/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1165 of 2013

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             IFFCO-TOKIO GENERAL INSURANCE CO LTD
                             Versus
       LEGAL HEIRS OF DECD. SANABHAI BHANABHAI & 3 other(s)
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Appearance:
MR KRUNAL R SAKSENA(5915) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
MR.HIREN M MODI(3732) for the Defendant(s) No. 1.1,1.2,1.3
RULE SERVED(64) for the Defendant(s) No. 2,4
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 07/01/2022

                                ORAL ORDER

1. The present appeal under Section 173 of the Motor Vehicles Act, 1988 is filed by the Iffco-Tokio General Insurance Company Ltd. by being aggrieved and dissatisfied with the judgment and award passed on 23.12.2011 by the Motor Accident Claims Tribunal (Auxiliary), Bhavnagar in Motor Accident Claim Petition No. 171 of 2009 as well as the order passed below Review Application No. 1 of 2012 dated 12.10.2012 passed by the 3 rd Additional District Judge, Bhavnagar.

2. The brief facts of the case are stated in a nutshell as under:

2.1 The opponents No. 1/1 to 1/3, who are original claimants, have filed claim petition under Section 163-A of the Motor Vehicles Act, 1988, claiming compensation of Rs.2 lakhs for the death of deceased Sanabhai Bhanabhai who has died in a

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vehicular accident occurred on 19.01.2009. It is the case of the claimants before the Tribunal that deceased was traveling in rickshaw bearing registration No.GJ-04-X-3656 with which another car bearing registration No.GJ-04-AJ-310 had collided and caused fatal injuries to the deceased and as the deceased has died due to the accident, the claim petition is filed for compensation of Rs.2 lakhs under Section 163-A of the Motor Vehicles Act, 1988, it is further, the case of the claimants in the claim petition that the complaint to this effect was filed before the Bagdana Police Station, vide C.R. No.I-07/2009. The present appellant is the insurer of the said Autorickshaw in which the deceased was sitting.

2.2 The claim petition is filed against opponent Nos.1 to 4 i.e. owner of Car and Autorickshaw and insurance company of car and autorickshaw. The Tribunal has issued the summons to the opponents in the claim petition and the opponent No.2 the National Insurance Company Limited(Insurer of Car) has filed a written statement at Exh.17, wherein it has denied the averments made in the claim petition filed by the claimants and has also denied the age, occupation and income of the deceased as averred in the claim petition. It was also disputed that the driver of the offending vehicle was holding a valid driving license and has also disputed that the deceased was earning livelihood by doing agricultural work and therefore, the opponent No.2 National Insurance Company has prayed to dismiss the claim petition before the Tribunal.

2.3 The opponent No.4 in the claim petition who is present appellant- Iffco-Tokio General Insurance Company Ltd.(Insurer of Autorickshaw) has filed its written statement at Exh. 14,

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wherein it has raised objections about the non-joinder and mis- joinder of the parties and also disputed the age, occupation and income of the deceased and also as the deceased was of 70 years old, it cannot be believed that he was doing some work and has averred that notional income of the deceased should be considered and compensation should be calculated on that basis only. The Iffco-Tokio General Insurance Company Limited-the present appellant herein, had contended before the Tribunal that the negligence on the part of the Auto rickshaw driver cannot be fixed more than 5% and accordingly prayed to dismiss the claim petition. The Tribunal has recorded the contentions of the claimants in the claim petition as well as written statements filed by the respective opponents in the claim petition and has considered the aspect of negligence by holding that the driver of the offending vehicle was driving the vehicle in absolutely rash and negligent manner.

3. The Tribunal has further considered the pecuniary loss caused to the claimants due to the death of the deceased Sanabhai Bhanabhai and has considered the provisions of Section 163-A of the Motor Vehicles Act, 1988 and granted total compensation of Rs.1,19,000/- with 7.5% interest, to the claimants. Thereafter, the present appellant has filed the review application before the Tribunal by contending that the insurance policy of the vehicle bearing registration No.GJ-04-X- 3656(Autorickshaw) was not found as insured with the insurance company i.e. Iffco-Tokio General Insurance Company Limited. It was also averred in the review application that as the appellant has produced covernote at Mark-5/12 but it was not readable and therefore, the insurance company i.e. Iffco- Tokio General Insurance Company Ltd. has filed review

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application No.1 of 2012 before the Motor Accident Claims Tribunal which was rejected by the Tribunal vide order dated 12.10.2012 by holding that no valid and proper explanation is given by the insurance company to exercise very limited powers of review and therefore the present First Appeal is preferred by the appellant- Iffco-Tokio General Insurance Company Limited.

4. Learned advocate Mr. Krunal R. Saksena, for the appellant has submitted that since the Tribunal has erred in not considering the review application, the present appeal is preferred by the insurance company as it has not found any policy for the vehicle bearing registration No.GJ-04-X-3656 from its record and therefore, the vehicle is not insured with them on the date of accident. However, on the query put up to the learned advocate Mr. Saksena that whether the same advocate, who has represented in the main claim petition, has filed the review application on behalf of the insurance company? Mr. Saksena has submitted that the same advocate has filed the review application. We have perused the record and proceedings of the claim petition and we have found that in the written statement filed by the present appellant insurance company vide Exh.14, there is no whisper about the genuineness of the claim or about the vehicle is not insured with the Iffco-Tokio General Insurance Company Limited.

5. Mr. Hiren M Modi, learned advocate for the claimants has appeared and submitted that the Tribunal has rightly rejected the review application and has awarded meagre amount of Rs.1,19,000/-. He also relied on judgment of our own high court which is rendered on 20.12.2021 in Special Civil

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Application No. 11877 of 2019 and therefore, he has prayed to dismiss the present appeal.

6. In view of above, I found that, the contentions of the appellant is not well founded and even the review application which is permissible only in limited circumstances and the reason given in the review application by the insurance company is also not falling under special circumstances, the Tribunal has rightly rejected it.

6.1 I have also perused the record and I found that both the vehicles be held liable to pay the amount of the compensation to the claimants and in view of that, since insurance company of other vehicle deposited its share of 50% i.e. Rs.60,000/- from the awarded amount, the remaining amount of about Rs.59,500/- is under the challenge and on that account also, looking to the smallness of the amount involved in the present appeal, the present appeal deserves to be dismissed. I have also perused the other aspects of the matter about the pecuniary loss caused to the claimants and I am satisfied that the Tribunal has awarded just and proper amount and has discussed every aspect at length, after appreciating the evidence available on the record and therefore, I found no infirmity and illegality in the impugned judgment and award passed under Section 163-A of the Motor Vehicles Act, 1988, by the Tribunal, nor I found any illegality or error in the impugned order passed in review application filed by the present appellant and also on that count, the amount involved is more or less Rs.59,500/- and in view of the smallness of the amount and petty claims involved in the appeal. This appeal requires to be dismissed and hence, present appeal is

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dismissed, with no order as to costs.

7. The amount which is lying with the Tribunal or invested in the Fixed Deposit shall be paid to the claimants, forthwith, within a period of four weeks from the date this order by the Tribunal, after due verification and by A/c payee cheque, after following proper procedure.

8. The Registry is directed to sent back the record forthwith, to the concerned Tribunal.

(SANDEEP N. BHATT,J) SLOCK BAROT