Gujarat High Court
The United India Insurance ... vs Dehlaji Kunvarsiji Thakor on 16 January, 2023
Bench: Ashokkumar C. Joshi
C/FA/2859/2022 ORDER DATED: 16/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2859 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 2859 of 2022
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THE UNITED INDIA INSURANCE COMPANY LIMITED
Versus
DEHLAJI KUNVARSIJI THAKOR
======================================================
Appearance:
MR ANAL S SHAH(3988) for the Appellant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 16/01/2023
ORAL ORDER
1. Though served, none appears for the respondents.
2. By this appeal, the appellant - insurance company has challenged the
order dated 01.04.2021 passed below Exh. 5 in Motor Accident Claim
Petition No. 1507 of 2015 by the learned Motor Accident Claims Tribunal
(Auxiliary), Banaskantha at Deodar.
3. It is submitted by Mr. Anal S. Shah, learned advocate for the
appellant - insurance company that under the provisions of Section 140 of
the Motor Vehicles Act, 1988 (MV Act), the owner of the vehicle is liable to
indemnify the claimant and not the insurer. Relying upon a decision of the
Apex Court in Yallwwa v. National Insurance Co. Ltd., (2007) 6 SCC 657,
C/FA/2859/2022 ORDER DATED: 16/01/2023
he submitted that, as observed by the Apex Court, Section 140 makes the
owner liable and not the insurer per se. Further, the appellant has raised a
contention in reference to the statutory rights available to the insurance
company while deciding an application under Section 140 of the MV Act.
In view of decision of this Court in the case of United India Insurance Co.
Ltd. v/s. Sidikbhai Ukabhai Solanki and Anr. reported in 2012 (2) GLH
465, the appellant - insurance company has preferred this appeal. Thus,
present no fault liability award would be treated as constructive res judicata
while deciding claim petition under section 166 of the MV Act.
4. Considering submissions of the learned advocate for the appellant -
applicant - insurance company, in the opinion of this Court, if necessary
direction is given to the learned Tribunal not to treat the order passed by the
Tribunal below application under Section 140 of the MV Act as constructive
res judicata nor will it come in any way while deciding main claim petition
filed under Section 166 of the MV Act, then, it will meet the ends of justice.
5. In view of above, it is observed that the order dated 01.04.2021
passed below Exh. 5 in Motor Accident Claim Petition No. 1507 of 2015 by
the learned Motor Accident Claims Tribunal (Auxiliary), Banaskantha at
Deodar will not be treated as constructive res judicata and will not come in
any way while deciding claim petition filed under Section 166 of the MV
Act. The learned Tribunal will decide the main claim petition on merits,
without being influenced by the order passed by the learned Tribunal below
application under Section 140 of the MV Act. The appellant - insurance
company is at liberty to raise all the contentions which are available under
the law before the learned Tribunal.
C/FA/2859/2022 ORDER DATED: 16/01/2023
6. In pursuance of the order passed by the learned Tribunal below
application under Section 140 of the MV Act, if any amount is deposited by
the appellant - insurance company, then, the learned Tribunal will pass
necessary orders under the provisions of law to disburse and invest in
cumulative deposit. The claimant will file Undertaking on affidavit that he
will not withdraw or permit to dismiss for default or non prosecution of
main claim petition but will obtain judgment on merits.
7. With aforesaid, the first appeal is disposed of.
7.1 In view of the order passed in the first appeal, no orders are required
to be passed in civil application and same is also disposed of.
[ A. C. Joshi, J. ]
hiren
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