Gujarat High Court
Oriental Insurance Company Ltd vs Jashiben Natvarbhai Chunara on 2 August, 2024
NEUTRAL CITATION
C/FA/1226/2009 JUDGMENT DATED: 02/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1226 of 2009
With
R/FIRST APPEAL NO. 1229 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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 ?
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ORIENTAL INSURANCE COMPANY LTD
Versus
JASHIBEN NATVARBHAI CHUNARA & ORS.
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Appearance:
MR DAKSHESH MEHTA(2430) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2,3,4,5,6
SERVED BY AFFIX. (R) for the Defendant(s) No. 7,8
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/08/2024
COMMON ORAL JUDGMENT
1. The present appeals are filed by the appellant -
Insurance Company under Section 173 of the Motor Vehicles
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Act, being aggrieved by and dissatisfied with the judgment
and award dated 31.1.2007 passed by the Motor Accident
Claims Tribunal, Fast Track Court No.2, Vadodara in Motor
Accident Claim Petition No.1867 of 1991 and 176 of 1992, by
which, the learned Tribunal has partly allowed the claim
petition of the claimants by holding the opponent no.6
liable to pay the compensation. Thereafter, the review
application was filed by the original opponent no.6-insurance
company of the truck involved in the accident, which is the
appellant herein, however, the same was also dismissed.
2. The facts of the present appeal are as under :
2.1 The claimants filed the claim petitions stating that
the deceased and the other injured persons were going in
Swaraj Mazda tempo no.GJ.6T.5262 and were going towards
Dabhoi, at that time, the driver of the said tempo was
driving the same in rash and negligent manner and when
they reached Kui village, one motor truck number GRV.5168
came from front side and tried to overtake the vehicle which
was going before it and due to which it dashed with the
tempo in which the deceased and the injured were sitting
and caused the accident. Therefore, the claimants filed the
claim petitions seeking compensation.
2.2 The notices were served to the opponents. All the
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opponents filed the written statements. The issues were
framed by the Tribunal. Oral as well as documentary
evidence were led before the Tribunal. After hearing the
submissions made by the rival parties, the Tribunal has
partly allowed the claim petition(s) and awarded compensation
as noted above.
2.3 Hence, the insurance company of the truck-original
opponent no.6 has filed the present appeals before this Court.
3. Learned advocate for the appellant - Insurance
Company has mainly submitted that the learned Tribunal has
held the driver of the truck solely negligent for the accident
and held the opponent no.6-appellant herein liable to pay the
amount of compensation as the truck was insured with it. He
submitted that after the impugned judgment was passed, the
appellant discovered that the period of insurance of the said
truck was from 20.7.1990 through 19.7.1991, however, the
overwriting was done and period of coverage was changed
from 20.9.1990 to 19.9.1991 to bring the day of the accident
i.e. 8.9.1991 within its coverage. Therefore, the review
application was filed by the appellant, however, the same
was dismissed. He further submitted that the fraud is
committed which is not considered by the learned Tribunal
and there was no insurance of the truck on the day of the
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accident and therefore the appellant cannot be held liable to
pay the compensation. He, therefore, submitted that on this
ground alone, these appeals are required to be allowed. No
other grounds are raised.
4. Though served, none appears in these appeals.
5. I have considered the submissions made by the learned
advocate for the appellant. I have perused the material
produced on the record along with the impugned judgment
and award passed by the Tribunal. I have also considered
the pleadings of the parties before the Tribunal.
6. The undisputed facts of this case are the
occurrence of the accident, the involvement of the vehicles in
the accident, the negligence of the driver of the truck insured
with the appellant, the amount of compensation awarded. The
only dispute which is raised by the appellant is that of the
fabricated policy of the insured vehicle. With regard to this,
it is required to be noted at the outset that all the
opponents before the learned Tribunal have filed their written
statements. Further, the insurance company of both the
vehicles which happens to be the appellant herein has argued
the matter before the learned Tribunal. It is very surprising
that the point of fabricated cover note is not being agitated
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before the learned Tribunal althroughout the proceedings of
the claim petitions and the impugned judgment was delivered
on 31.1.2007 by the learned Tribunal, after appreciating the
oral and documentary evidence led before it. Suddenly, in the
month of February, 2008, the appellant filed the review
application seeking review of the judgment and award passed
in the claim petitions on the ground that there is an
overwriting in the month of the cover note and it is
corrected from 19.7.1991 to 19.9.1991 to bring the date of the
accident i.e. 8.9.1991 in the policy period. The learned
Tribunal discussed that the delay in filing the review
application is of about 11 months, which is not explained by
the appellant.
7. Further, on the issue of admissibility of the review
application, the learned Tribunal has observed that the
appellant-insurance company has not taken any such defence
of fabricated cover note in the written statement nor
examined any witness of insurance company during the
evidence nor produced any original or xerox copy of the
policy and therefore the cover note was exhibited in the
claim petition and though sufficient time was given to the
present appellant at the stage of evidence still, the appellant
has not taken this ground at any stage in the claim petition.
Therefore, the learned Tribunal has observed that the review
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is maintainable as per provision of Order 47 Rule 1 of Civil
Procedure Code only on three grounds i.e. (i) discovery of
new and important matters or evidence or (ii) mistake or
error on the face of the record or (iii) any other sufficient
reasons and in this case, the appellant-insurance company
had sufficient time of 16 years from the date of the accident
till the date of the judgment to find out whether the vehicle
is insured with the insurance company or not and policy was
in force or not, however, the insurance company did not take
this ground in the claim petition and therefore, this fact
brought by the insurance company at the time of the review
application is not falling in any of the three grounds
mentioned and therefore, the review is not maintainable.
8. The said findings of the learned Tribunal in the
review application cannot be said to be perverse or contrary
to the law. It is required to be noted that the appellant-
insurance company had sufficient time to bring this fact on
the record of the claim petition, however, it failed in doing
so, which cannot be justified by a company like the
appellant. Further, if the insurance company is taking a
stand of the cover note being fabricated, it should have taken
the step of filing the FIR/complaint against the owner of the
vehicle, however, it is not done by the appellant-insurance
company. This shows the lethargic approach of the appellant-
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insurance company which firstly has not taken the stand
before the learned Tribunal at the time of the claim petition
though sufficient time and opportunity was given to it to
contest the claim petition and secondly even after coming to
know, according to its say, about the fabricated cover note, it
has not taken any step to file complaint against the owner.
In all this circle, the claimants who have been awarded
compensation are waiting for the fruits of the claim petition
since so many years.
9. In view of the above discussion, there is no need
to interfere with the impugned judgment passed in the claim
petition and also the review application. Accordingly, these
appeals are required to be dismissed.
10. In view of above, the following order is passed.
10.1 The present appeals are dismissed with no order as to
costs. It is open for the appellant-insurance company to take
steps against the owner of the vehicle insured with it, if it
so wishes.
10.2 The amount lying with the Tribunal and/or in the FDR,
pursuant to the order of this Court if any, shall be disbursed
to the claimant, along with accrued interest thereon if any,
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by account payee cheque, after proper verification and after
following due procedure, within a period of six weeks from
the date of receipt of this order.
10.3 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
