Icici Lombard General Insurance vs Ratiben Alias Pupiben Badabhai ...
2023 Latest Caselaw 3032 Guj

     C/FA/3093/2021                                  JUDGMENT DATED: 19/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3093 of 2021
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                     In R/FIRST APPEAL NO. 3093 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

==========================================================

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 ?

==========================================================
                ICICI LOMBARD GENERAL INSURANCE
                              Versus
     RATIBEN ALIAS PUPIBEN BADABHAI ALIAS BADIYABHAI DODIYA
==========================================================
Appearance:
MR SUNIL B PARIKH(582) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 3
==========================================================

    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 19/04/2023

                              ORAL JUDGMENT

1. The insurance Company is challenging the

judgment and award dated 28.3.2019 passed in

C/FA/3093/2021 JUDGMENT DATED: 19/04/2023

MACP no.98/14 by the MACT (Aux), Kalol,

District Gandhinagar and has raised various

grounds but the primary ground which has

been brought to the notice of this Court is

the order below Exh.51, where the present

appellant had made a prayer to join the

owner, driver and insurance Company of

Innova Car bearing registration no. GJ-24 A-

8486, which came to be rejected by the

Tribunal on the very same day dated

11.10.2018.

2. Advocate Mr. Sunil Parikh stated that the

mother and daughter were crossing the road

and the mother in MACP no.70/14 had settled

with the insurance Company of the Innova Car

i.e. Bajaj Allianz General Insurance Company

Ltd. and by way of compromise dated

21.2.2015, the award was ordered to be

drawn. It is submitted that the very claim

petition itself shows the involvement of the

C/FA/3093/2021 JUDGMENT DATED: 19/04/2023

Innova Car and has stated that the fact of

negligence aspect is required to be

considered and that the learned Tribunal has

erred in rejecting the application Exh.51,

where a specific prayer was made by the

appellant to join the owner, driver and

insurance Company of Innova Car. Mr. Parikh

has relied upon the telephonic vardhi, which

reflects the involvement of Innova Car.

3. While Advocate Mr. Hiren Modi submitted that

actually the case of the claimants was that

while crossing the road, the mother was hit

by Innova Car bearing registration no. GJ-24

A-8486 and therefore, she had filed MACP

No.70/14, while the daughter was dashed with

Accent car and the fact has been proved

before the Tribunal and accordingly, the

compensation amount has been granted. Mr.

Modi stated that the order below Exh.51 is

rightly rejected.

C/FA/3093/2021 JUDGMENT DATED: 19/04/2023

4. There are two contrary evidence, which have

been shown before this Court of telephonic

vardhi and FIR. The telephonic vardhi shows

the involvement of Innova Car, while the FIR

is against Accent car. The case of the

claimants is that the mother was dashed by

Accent car, while the daughter succumbed to

death as she has sustained injury because of

the Innova Car. The charge-sheet is against

the drivers of both the vehicles.

Considering this aspect, the negligence

aspect as well as the liability has to be

dealt with in accordance to the evidence,

which has been brought to the notice of this

Court. Thus, a liberty is required to be

provided to all concerned so that the actual

facts of the accident can be brought on

record.

C/FA/3093/2021 JUDGMENT DATED: 19/04/2023

5. Hence, for the reasons recorded hereinabove,

the findings under issue no.1 and the

liability aspect are quashed and set aside.

The matter is required to be restored back

on the file of the concerned Tribunal so as

to decide the negligence and liability

aspect. Thus, Exh.51 moved by the present

appellant is allowed. The driver, owner and

the insurance Company of the Innova Car is

ordered to be joined as party respondents

and notice be issued to the newly added

party respondents. All the parties be

provided an opportunity to adduce the

evidence. The learned Tribunal shall

conclude the exercise of recording of

evidence and deliver the judgment within a

period of six months from the date of

receipt of this judgment.

6. It is reported that the amount has been

deposited by the present appellant before

C/FA/3093/2021 JUDGMENT DATED: 19/04/2023

the Tribunal. In view of the above, 30% of

the amount shall be disbursed to the

claimants after proper verification and 70%

of the amount be invested in a Fixed Deposit

with any nationalized Bank for a period of

three years and receipt of the same shall be

kept in the custody of the Nazir of the

concerned Tribunal. The claimants may

approach the concerned Tribunal after three

years and the Tribunal concerned shall

disburse the amount to the claimants along

with accumulated interest after proper

verification. It is, however, made clear

that in case negligence aspect after being

decided falls upon the other insurance

Company, then, the present appellant is

entitled to recover the compensation as per

the judgment of the Tribunal.

7. Accordingly, the appeal is disposed of.

Registry is directed to send the record and

C/FA/3093/2021 JUDGMENT DATED: 19/04/2023

proceedings back to the Tribunal, if

received. Since the appeal is disposed of,

Civil Application would not survive and is

disposed of.

(GITA GOPI,J) Maulik