Hdfc Ergo General Insurance ... vs Parmar Balvantsinh Laxmansinh
2023 Latest Caselaw 7328 Guj

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     C/FA/1238/2019                                  ORDER DATED: 04/10/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 1238 of 2019
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                  In
                    R/FIRST APPEAL NO. 1238 of 2019
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           HDFC ERGO GENERAL INSURANCE COMPANY LTD
                            Versus
                PARMAR BALVANTSINH LAXMANSINH
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR H M SHAH(3997) for the Defendant(s) No. 2,3,4,5
MR PAWAN A BAROT(6455) for the Defendant(s) No. 1
NOTICE NOT RECD BACK for the Defendant(s) No. 7
NOTICE UNSERVED for the Defendant(s) No. 6
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 04/10/2023

                                ORAL ORDER

1. The challenge is given to the judgment

and award dated 01.10.2018 in MACP No.1368 of

2012 (Old MACP No.664 of 2011) by the Insurance

Company primarily on the ground that the plea was

raised before the Tribunal of the private car

liability only policy, wherein no premium has

been paid for covering the risk of any passenger,

and the opponent no.3 had filed an affidavit of

Vivek Rajnikant Shah serving in the Insurance

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C/FA/1238/2019 ORDER DATED: 04/10/2023

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Company, and the learned Tribunal has gone beyond

the evidence and the pleadings of the Insurance

Company, where it was specifically stated that

Mahindra Commander Jeep bearing No.GJ-7-A-4635 is

liability only policy means act only policy, and

the deceased was travelling in the said Commander

Jeep as an occupant, and therefore the risk of

occupant was not covered as per the terms and

conditions of the policy.

2. Mr. Maulik J.Shelat, learned advocate

for the appellant submits that the learned

Tribunal has failed to consider the same and had

gone beyond the pleadings and proofs to lay down

the burden, and though specifically the policy

was proved, the learned Tribunal has observed of

the coverage of the person seating in the vehicle

therein as a third party, which is not

permissible in law, and unnecessary burden has

been laid down on the opponents that they had

failed to prove that the insured vehicle was

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being used as a taxi to carry passengers for hire

and reward, and they have failed to prove that

the deceased had ever arranged the Jeep on hire

and reward.

2.1 Mr. Shelat has referred to the policy

and the pleadings with evidence of the officer on

record to show that it is a private car liability

only policy.

3. In view of the above, the matter

requires consideration, hence, the finding in the

judgment and award dated 01.10.2018 passed in

MACP No.1368 of 2012 (Old MACP No.664 of 2011) by

the 5th MACT (Aux.) at Mahesana @ Visnagar making

the Insurance Company liable is quashed and set

aside. The present appeal stands disposed of.

3.1 Let the matter be reconsidered on the

basis of the pleadings and evidence on record

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C/FA/1238/2019 ORDER DATED: 04/10/2023

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only on the aspect of liability of the Insurance

Company to pay the compensation amount, since

other issues are decided on evidence, where no

challenge at present is given.

4. It is stated by Advocate Mr. Shelat that

at present the Insurance Company has paid the

total amount, thus, Advocate Mr.H.M. Shah states

that after a full-fledged trial the claimants

could see some result and since the Tribunal has

ordered 70% amount to be kept in FDR, Mr. Shah

made a prayer that at least 30% amount be paid to

the claimants from the total amount deposited

before the Tribunal.

4.1 In view of the facts and circumstances

of the case, out of the amount so deposited, the

Tribunal concerned is directed to disburse 30%

thereof in favour of the original claimant/s, by

Account Payee cheque, after due verification;

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C/FA/1238/2019 ORDER DATED: 04/10/2023

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however, it is made clear that this would not

affect the right of the Insurance Company to get

the recovery of the amount.

4.2 The remaining 70% shall be invested in

Fixed Deposit with any nationalized Bank in the

name of the original claimant/s, initially, for a

period of two years, which may be renewed from

time to time, without any reference to this

Court. The Bank concerned shall not allow any

loan or advance or create encumbrance upon such

Fixed Deposit without prior permission of the

Tribunal. Interest accruing on such Fixed Deposit

shall be accumulated. The original Fixed Deposit

Receipt shall be kept in the custody of the Nazir

of the Tribunal.

5. In view of disposal of the main appeal,

the Civil Application stands disposed of.

(GITA GOPI,J) Pankaj