Icici Lombard General Insurance vs Sanjaybhai Manilal Chauhan
2023 Latest Caselaw 2202 Guj

     C/SCA/12609/2018                            ORDER DATED: 13/03/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


      R/SPECIAL CIVIL APPLICATION NO. 12609 of 2018
                           With
      R/SPECIAL CIVIL APPLICATION NO. 12792 of 2018

=======================================
             ICICI LOMBARD GENERAL INSURANCE
                            Versus
         SANJAYBHAI MANILAL CHAUHAN & 3 other(s)
=======================================
Appearance:
MR SUNIL B PARIKH(582) for the Petitioner(s) No. 1
MR.HIREN M MODI(3732) for the Respondent(s) No. 1,2
RULE SERVED BY DS for the Respondent(s) No. 4
UNSERVED REFUSED (R) for the Respondent(s) No. 3
MR HG MAZMUDAR for the Respondent(s) No.
=======================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 13/03/2023

                               ORAL ORDER

1. Pursuant to the order dated 29.08.2018, learned advocate

Mr. H. G. Mazmudar appears for the United India Insurance Co.

Ltd. and has already filed his Vakalatnama.

2. Challenge in these petitions is to the judgments and awards

dated 21.04.2018 passed in Motor Accident Claim Petition Nos.

410 of 2012 and 409 of 2012 by the learned Motor Accident

Claims Tribunal (Auxiliary), Panchmahals at Godhra (the

Tribunal).

C/SCA/12609/2018 ORDER DATED: 13/03/2023

3. Heard, learned advocate Mr. Sunil B. Parikh for the

petitioner - ICICI Lombard General Insurance, learned advocate

Mr. Hiren Modi for the original claimants and learned advocate

Mr. H. G. Mazmudar for the United India Insurance Co. Ltd.

3.1 It is submitted by the learned advocate for the petitioner

that learned Tribunal, after considering the evidence on record,

has assessed 80% liability of the driver of the Tempo bearing

registration No. GJ-17-W-3872 and 20% of the driver of the

Rickshaw bearing registration No. GJ-17-TT-0118. Further, it is

observed in the impugned judgments and awards that the driver,

owner and the insurance company of the Rickshaw are not joined

as party respondents. While, learned advocate for the petitioner

submitted that in Motor Accident Claim Petition No. 465 of 2012,

which was arising out of the same accident, the driver, owner and

insurance company of the Rickshaw were joined as party

respondents. It is submitted that in the case on hand also,

applications Exh. 14 were moved for joining the driver, owner and

insurance company of the Rickshaw as party respondents, and

the said applications, though fixed for hearing, remained

undecided and the Tribunal, oblivious of the said fact, has passed

the final orders. It is further stated at bar that the judgment and

award passed in Motor Accident Claim Petition No. 465 of 2012

C/SCA/12609/2018 ORDER DATED: 13/03/2023

has not been challenged by any of the insurance companies. The

negligence has been apportioned accordingly in the line as was

decided in Motor Accident Claim Petition No. 465 of 2012 and the

observations has been reflected below Issue No. 1.

3.2 It is submitted that by orders dated 29.08.2018 passed in

the captioned petitions, the United India Insurance Co. Ltd. has

been served with the notice and is represented by learned

advocate Mr. H. G. Mazmudar. It is further requested that

necessary orders be passed to amend the awards, to be in

consonance with the judgment and award rendered in Motor

Accident Claim Petition No. 465 of 2012.

4. Learned advocate Mr. H. G. Mazmudar for the United India

Insurance Co. Ltd. has fairly conceded that no challenge has been

given to the judgment and award passed in Motor Accident Claim

Petition No. 465 of 2012 and further, having gone through the

observations made in the impugned judgments and awards, has

candidly stated that, 20% negligence has been attributed to the

driver of the Rickshaw.

5. The said vehicle involved (Rickshaw) was insured with the

United India Insurance Co. Ltd. which fact is also corroborated

C/SCA/12609/2018 ORDER DATED: 13/03/2023

through the judgment and award passed in Motor Accident Claim

Petition No. 465 of 2012, which is produced on record. The

insurance company as well as the owner and driver are necessary

parties. The Tribunal has erred in not hearing applications Exh.

14 which were timely produced on record to join the other tort-

feasors. It is an error apparent on record, which could even be

rectified by way of review application. Be that as it may. The

present petitions are required to be considered in the facts and

circumstances of the case.

6. Accordingly, the applications Exh. 14, in both the claim

petitions, are allowed and consequently, the United India

Insurance Co. Ltd. be joined as respondent Nos. 4 and 5

respectively in both the judgments and awards.

6.1 As the liability has already been laid down in both the

impugned judgments and awards against the driver, owner and

the insurance company of the Rickshaw, now, the only

requirement is to amend the operative orders of the impugned

judgments and awards. Hence, the impugned judgments and

awards be amended to the effect that the claimants are entitled

to recover the awarded amount from all the opponents, jointly

and severally, as has been laid down in the impugned judgments

C/SCA/12609/2018 ORDER DATED: 13/03/2023

and awards.

6.2 It is reported that the petitioner - insurance company has

already deposited the awarded amount and hence, now, 20%

amount, as has been laid down in the impugned judgments and

awards against the United India Insurance Co. Ltd. for the driver

and owner of the Rickshaw, be deposited before the Tribunal in

proportion and the petitioner insurance company is entitled to

receive the same and as soon as the amount is deposited, the

same be given to the petitioner - insurance company.

6.3 In accordance with the order dated 17.02.2020 passed in

Civil Application (For Withdrawal/Disbursement of Amount) No. 1

of 2019 in Special Civil Application No. 12609 of 2018, 70%

amount was ordered to be invested in a Fixed Deposit with a

Nationalized Bank for initial period of three years making it

renewable till final disposal of the petition. Since, the petitions

are being disposed of today, the amount so invested in FDR, be

granted to the original claimants.

6.4     Rule is made absolute accordingly.


                                                   [ Gita Gopi, J. ]
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