Gujarat High Court
M/S. Kachchh Highway Transport (Owner ... vs Kejia Harinath Babu on 19 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/4120/2018 ORDER DATED: 19/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4120 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In R/FIRST APPEAL NO. 4120 of 2018
==========================================================
M/S. KACHCHH HIGHWAY TRANSPORT (OWNER OF TRUCK NO. GJ-12-
X-104)
Versus
KEJIA HARINATH BABU & 2 other(s)
==========================================================
Appearance:
MR CHINTAN M ADESHARA(12794) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
NOTICE UNSERVED for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 19/01/2024
ORAL ORDER
Order in First Appeal
1. Learned advocate Ms.Kiran Udasi along with learned advocate
Mr.Chintan Adeshara for the appellant, referring to the copy of the
insurance policy, submits that on the date of accident, the truck
bearing no.GJ-12-X-104 was insured with the New India Assurance
Company Ltd. Learned advocate Ms.Udasi submits that the claim
petition came to be dismissed since the claimant had failed to give
specific address of the office of the insurance company. Learned
advocate Ms.Udasi submits that in the cause-title of the judgment,
the insurance company is shown as respondent no.3 but, the
claimant had failed to join the insurance company. Further, even
such information would have been available with the learned
Tribunal since the investigation papers would have been provided to
NEUTRAL CITATION
C/FA/4120/2018 ORDER DATED: 19/01/2024
undefined
the Court under Section 166 (4) of the Motor Vehicle Act, 1988.
2. Learned advocate Ms.Udasi submits that from the copy of the
insurance policy, it appears that the truck bearing no.GJ-12-X-104 of
Tata Motors company is insured with the New India Assurance
Company Ltd. and the factum of liability is required to be considered
in accordance with the insurance policy.
3. Learned advocate Mr.G.C. Mazmudar submits that the New
India Assurance Company Ltd. would not be necessary and proper
party and has been wrongly joined as the same was not a party in
M.A.C.P. No.62 of 2007. Learned advocate Mr.Mazmudar submits
that no direction can be given against the insurance company nor
any substantive order can be passed, when the owner as well as the
claimant both have failed to join the insurance company as party to
the said claim petition.
4. In view of the submissions raised, it is required to be noticed
that the involved vehicle was insured with the New India Assurance
Company Ltd. The claimant failed to join the concerned insurance
company. The fact of the vehicle being insured would have come to
the knowledge of the police during the investigation and further, the
Court when Section 166(4) of the M.V. Act would have been
complied. The present appellant could also had informed the Court.
The inaction on the part of all concern, cannot absolve the insurance
company when the existence of insurance policy cannot be denied
by the insurance company. Thus, the matter is remanded back to
the concerned learned Tribunal with a direction that the New India
Assurance Company Ltd. be joined as opponent no.3 in the matter.
The present appellant is directed to provide address to the Court
and make necessary amendment in the cause-title accordingly.
NEUTRAL CITATION
C/FA/4120/2018 ORDER DATED: 19/01/2024
undefined
5. It is further directed that the concerned learned Tribunal to
add the New India Assurance Company Ltd. as opponent no.3 and
after service of notice, the liability factum be decided afresh in
accordance with the coverage of the insurance policy and it would
be open for the insurance company to agitate regarding the
payment of interest.
6. In the result, the present appeal is allowed with a further
direction that the matter be decided on its own merits preferably
within a period of 4 months from the date of receipt of copy of the
writ of this order.
Order in Civil Application
In view of disposal of the main appeal, present civil application
would not survive and the same also stands disposed of accordingly.
(GITA GOPI,J)
Hitesh
