Gujarat High Court
Icici Lombard Gen Ins Co Ltd vs Heirs Of Decd Popatbhai Dadubhai ... on 20 June, 2022
Bench: Gita Gopi
C/FA/4179/2019 ORDER DATED: 20/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4179 of 2019
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
NO. 1 of 2021
In
R/FIRST APPEAL NO. 4179 of 2019
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
NO. 1 of 2021
In
R/FIRST APPEAL NO. 4180 of 2019
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2021
In
R/FIRST APPEAL NO. 4180 of 2019
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
NO. 1 of 2021
In
R/FIRST APPEAL NO. 4181 of 2019
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
NO. 1 of 2021
In
R/FIRST APPEAL NO. 4182 of 2019
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ICICI LOMBARD GEN INS CO LTD
Versus
HEIRS OF DECD POPATBHAI DADUBHAI FULAVADI
================================================================
Appearance:
MR CHIRAYU A MEHTA(3256) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR KK THAKKAR(2834) for the Defendant(s) No. 1.1,1.2,1.3
RULE SERVED for the Defendant(s) No. 1.4,2,3
UNSERVED EXPIRED (R) for the Defendant(s) No. 1.5
================================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/06/2022
COMMON ORAL ORDER
1. Heard learned Advocate for the appellant - Insurance
Company, Mr. Chirayu A. Mehta who submits that the
C/FA/4179/2019 ORDER DATED: 20/06/2022
Insurance Company has challenged the judgment and
award dated 09.05.2019 passed by the learned Motor
Accident Claims Tribunal (Main), Patan in M.A.C.P.
Nos.252/2013 to 255/2013 primarily on the ground that
the learned Tribunal has not observed the principle of
natural justice and had not given sufficient opportunity to
the Insurance Company to examine the summons witness
at Exhibit 56 and 57 which was with a prayer for
examining R.T.O. Officer and the Police.
2. Aggrieved by such order of rejection, the Insurance
Company had moved a petition, i.e. Special Civil
Application No.9344 of 2019 alongwith other matters, i.e.
Special Civil Application Nos.9346 of 2019, 9347 of 2019
and 9349 of 2019 on 09.05.2019. It is further submitted
that all the Special Civil Applications were on the Board
of the Court dated 09.05.2019 and the Court had passed
the oral order of issuing the Notice making it returnable
on JUNE 10, 2019. It is further submitted that the
learned Tribunal was apprised of this fact but inspite of
this on the very same day, the learned Tribunal passed
the judgment and award in M.A.C.P. Nos.252 of 2013 to
255 of 2013. It is further submitted that the deceased
was travelling alongwith his wife and two children and
other passengers in an insured vehicle being Chhota
Hathi (Light Motor Delivery Van) bearing Registration
C/FA/4179/2019 ORDER DATED: 20/06/2022
No.GJ-09-Z-7352. It is also submitted that the insured
vehicle was a Delivery Van and as per the Registration
Certificate, the vehicle had a seating capacity for only
two people, including the driver. Yet the passengers
breached all the conditions with regard to the seating
capacity and therefore, all of them were travelling as
gratuitous passenger. Therefore, it is submitted that it
was necessary to examine the Investigating Officer of
Odhav Police Station who had investigated the matter
bearing First Information Report bearing No.327 of 2013.
3. It is further submitted that the Driver of the Vehicle -
Parbatsing Javansing Makvana was not holding a valid
and effective Driving License at the time of accident and
was not entitled to drive the insurance Vehicle. This
fact was required to be brought to the notice and was
necessary to be placed on the record of the Tribunal by
examining the Transport Officer of Regional Transport
Office and therefore, the prayer was made for the witness
summons for both these persons at Exhibit 56 and 57.
However, though the Special Civil Applications were
pending before this Court, the learned Tribunal passed
the final judgment and award which has affected the
Insurance Company since the defence taken by the
Company could not be brought on record and the learned
Tribunal without considering the facts passed the
C/FA/4179/2019 ORDER DATED: 20/06/2022
judgment and award which has substantially affected the
right of the Insurance Company. In addition, it is further
submitted that since the judgment and award was passed,
the Insurance Company had no other recourse but to
withdraw all the Special Civil Applications No.9344 of
2019 and other cognate matters.
4. On the other hand, learned Advocate for the respondent
Mr. K.K. Thakkar vehemently objected to the prayer/s
made in the application/s and submitted that the
application/s were moved only to prolong the trial. It is
further submitted that considering the proposition of law
and various judgments of the Apex Court, the Insurance
Company will recover the money from the owner and
thus, this fact is also required to be considered since
there is no case of the Insurance Company. It is further
submitted that the only way out would be for the
Insurance Company to pay the amount and the same be
disbursed as per the prayers and the main matter is
required to be disposed of.
5. Having heard learned Advocates for the parties and
perusing the records of the case, there is no denial to the
fact that the application was moved by the Insurance
Company for examining the witnesses. The Tribunal did
not consider the said application/s. Aggrieved by such
C/FA/4179/2019 ORDER DATED: 20/06/2022
order of the Tribunal of rejecting the application for
examination of the witnesses, the Insurance Company
filed a Special Civil Application No.9344 of 2019
alongwith other matters, i.e. Special Civil Application
Nos.9346 of 2019, 9347 of 2019 and 9349 of 2019.
Every litigant is required to be given sufficient time for
bringing all the relevant evidence on record to assist the
Court / Tribunal to do fair and real justice. Denial of
opportunity would at times lead to denial of justice. In
the present case when the Tribunal was informed about
Special Civil Applications being preferred challenging the
rejection of witness summons application, the learned
Tribunal was required to consider such development,
ought not to have passed any judgment and award,
without waiting for the final disposal of the Special Civil
Applications. This has prejudiced the right of the
Insurance Company. Hence, this Court is of the view that
the Insurance Company was required to be given an
opportunity for bringing the evidence on record. Hence,
the judgment and award dated 09.05.2019 passed by the
learned Motor Accident Claims Tribunal (Main), Patan in
M.A.C.P. Nos.252/2013 to 255/2013 dated 09.05.2019 is
hereby quashed and set aside with a direction that both
the applications - Exhibit 56 and Exhibit 57 be re-
considered, giving an opportunity of hearing to both the
sides and the matter be considered afresh with
C/FA/4179/2019 ORDER DATED: 20/06/2022
accordance with law. Both the sides shall co-operate
with the learned Tribunal for expeditious disposal of the
matter.
6. In view of the above, the above Civil Applications for
withdrawal/disbursement of amount are dismissed at this
stage, with a liberty granted to the claimant to file such
an application after the final award.
7. At this stage, it is submitted by learned Advocate for the
appellant - Insurance Company that the Insurance
Company had deposited the amount as per the award
dated 09.05.2019. The amount so deposited be invested
in a Cumulative Fixed Deposit with any nationalized
Bank, which shall be renewed from time to time,
without any reference to this Court, till the final disposal
of the main Claim Petition.
8. In view of the above, the First Appeal stands disposed of.
Consequently the Civil Applications also stand disposed
of.
Sd/-
(GITA GOPI, J)
CAROLINE
