Icici Lombard General Insurance ... vs Subedar Baijnath Yadav
2023 Latest Caselaw 6788 Guj

                                                                                     NEUTRAL CITATION




       C/FA/2220/2009                                ORDER DATED: 14/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 2220 of 2009

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                ICICI LOMBARD GENERAL INSURANCE CO LTD
                                 Versus
                    SUBEDAR BAIJNATH YADAV & 3 other(s)
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 3,4
RULE UNSERVED for the Defendant(s) No. 1,2
SERVED BY AFFIX. (R) for the Defendant(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 14/09/2023
                       ORAL ORDER

1. Being dissatisfied with the fastening of the liability, present appeal has been preferred by the ICICI Lombard General Insurance Company under Section 173 of the Motor Vehicle Act.

2. In a fatal accident, deceased Suresh Parmar lost his life.

The respondent, being a legal heirs of the deceased, had filed a claim petition (No.1607 of 2007) before the Tribunal at Vadodara. The claim petition was filed under no fault liability i.e. Section 163(A) of the Motor Vehicle Act. On the day of accident dated 23.09.2007, deceased-Suresh Parmar was being a driver of the vehicle - bike sustained fatal injuries and died on the spot. Due to collusion with the bike and container/trailer, the alleged accident occurred at the place mentioned in the papers. The Tribunal vide its judgment and award dated 13.02.2009, on the basis of structured formula, awarded a sum of Rs.4,36,500/- with interest at the rate of 7.5% per annum.

NEUTRAL CITATION

C/FA/2220/2009 ORDER DATED: 14/09/2023

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The appellant - Insurance Company, had raised the issue of negligence. However, considering the object of Section 163(A) of the Act, the Tribunal did not consider the issue of negligence as raised and accordingly, the award was passed.

3. Being dissatisfied with the observations recorded by the Tribunal for not considering the issue of negligence, present appeal has been preferred by the Insurance Company of the trailer.

4. This Court has heard learned counsels Mr.Vibhuti Nanavati and Mr.M.T.M. Hakim for the respective parties.

5. In the case of United India Insurance Company Vs. Sunil Kumar (2019 SCC (12) 398), three Judges Bench of the Apex Court, on a reference on the question of law whether in a claim proceedings under Section 163(A) of the Act, it is open for the insurer to raise the defence/plea of negligence. The Apex Court, after considering the relevant provisions and earlier pronouncement on the issue held that in a proceedings under Section 163(A) of the Act, it is not open for the insure to raise any defence for negligence on the part of victim.

6. In light of the authoritative pronouncement and considering the peculiar facts and circumstances of the present case, this Court is of the considered view that the claim petition was filed against the owner - Insurance Company of the opposite vehicle i.e. container. The deceased was a third party so far as the appellant - Insurance Company is concerned. Thus, therefore, the learned Tribunal did not delve into the issue of negligence.

NEUTRAL CITATION

C/FA/2220/2009 ORDER DATED: 14/09/2023

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7. In view of the law laid down by the Apex Court, the present appeal is dismissed, being devoid of any merits. The award passed by the learned Tribunal is upheld. Decree be drawn accordingly.

(ILESH J. VORA,J) Rakesh