AO/293/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 293 of 2007 With CIVIL APPLICATION No. 10882 of 2007 In APPEAL FROM ORDER No. 293 of 2007 With CIVIL APPLICATION No. 9124 of 2008 In APPEAL FROM ORDER No. 293 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NATIONAL INSURANCE COMPANY - Appellant(s) Versus ORIENTAL INSURANCE CO. & 5 - Respondent(s) ========================================================= Appearance : MR DAKSHESH MEHTA for Appellant(s) : 1, MS KAPADIYA FOR MS MEGHA JANI for Respondent(s) : 1, MR AV PRAJAPATI for Respondent(s) : 2 - 4. RULE SERVED for Respondent(s) : 5 - 6. ========================================================= AO/293/2007 2/10 JUDGMENT CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 28/08/2008 ORAL JUDGMENT 1. Present Appeal From Order is preferred by the appellant herein – original opponent No.5 – National Insurance Company Limited to quash and set aside order dtd.29/3/2007 passed by the learned Presiding Officer, FTC No.2, Ahmedabad in Review Application No.6 of 2007 in Motor Accident Claim Petition Nos.933 of 2002 and 465 of 2003, by which the learned Motor Accident Claim Tribunal has rejected the said application submitted to rectify final judgement and award passed in Motor Accident Claim Petition Nos. 933 of 2002 and 465 of 2003 and instead directing to ratify error made in para 14 and 21 (last four lines). 2. The respondent Nos.2 to 4 herein – original claimants, filed Motor Accident Claim Petition Nos. 933 of 2002 and 465 of 2003 for getting compensation under the Motor Vehicles Act and the same came to be heard by the Motor Accident Claim Tribunal (Auxiliary), FTC No.2, AO/293/2007 3/10 JUDGMENT Ahmedabad, who vide his judgement and order dtd.27/9/2006 partly allowed both the claim petitions. It is required to be noted that in the vehicular accident two vehicles were involved which were insured with two different insurance companies namely the National Insurance Company Limited and the Oriental Insurance Company Limited. It appears that in the said accident Jeep bearing GJ-2-K-3314 was involved which was insured with National Insurance Company Limited and another vehicle being Borewell Ring Machine bearing registration No.GJ-2-K-5672 was involved which was insured with Oriental Insurance Company Limited. It is the case on behalf of all that on appreciation of evidence the learned Motor Accident Claim Tribunal gave a finding with respect to contributory negligence holding the driver of the Jeep contributory negligent to the extent of 30% and the driver of the stationary Borewell Ring Machine contributory negligent to the extent of 70% and the said finding was given in para 21 and inspite of the aforesaid finding, by mistake in the operative portion of the judgement and award, the learned Motor Accident Claim Tribunal directed that the opponent Nos.2 and 4 (the National Insurance Company Limited and the Oriental AO/293/2007 4/10 JUDGMENT Insurance Company Limited) do pay to the claimants a sum of Rs.30 Lacs in the ration of 70:30 in Motor Accident Claim Petition No. 933 of 2002 and directed the aforesaid opponents to pay to the applicants of the said claim petition Rs.41,500 in the ratio of 70:30 respectively. Thus, by the operative portion of the judgement and award the National Insurance Company – original opponent No.2 was directed to pay 70% of the awarded amount of compensation instead of 30% and the Oriental Insurance Company Limited - original opponent No.4 was directed to pay 30% of the awarded amount of compensation instead of 70% and therefore, the original opponent No.4 – the Oriental Insurance Company Limited submitted Review Application No.6 of 2007 in Motor Accident Claim Petition Nos. 933 of 2002 and 465 of 2003 requesting to review judgement and order dtd.27/9/2006 and that the ratio stated as 70:30 in line No.3 in operative part of the order in Motor Accident Claim Petition No. 933 of 2002 on page No.24 is required to be stated as ratio of 30:70 and similarly for review of the judgement and award dtd.27/9/2006 stating that ratio stated as 70:30 in line No.3 in operative part of the order in Motor Accident Claim Petition No. 465 of 2003 on page No.24 is required AO/293/2007 5/10 JUDGMENT to be stated as ratio of 30:70. The National Insurance Company also gave its No Objection as well as original claimants also submitted their no objections if the said judgement and award in the aforesaid Motor Accident Claim Tribunal are reviewed and modified to the aforesaid extent. Inspite of the above, the learned Motor Accident Claim Tribunal rejected the said application vide order dtd.29/3/2007, however has observed that there is no typographical error in operative portion of the order, but there is error in para 21 by which the contributory negligence was/had in the proportion of 30:70 and accordingly by the impugned order, directed to rectify the impugned judgement and award passed in the aforesaid two Motor Accident Claim Petitions by correcting error on page No.14 para 21 holding the driver of the Jeep contributory negligent to the extent of 70% and the driver of the stationary Borewell Ring Machine negligent to the extent of 30% being aggrieved by and dissatisfied with the impugned order dtd.29/3/2007 passed by the Presiding Officer, FTC No.2, Ahmedabad in Review Application No.6 of 2007, the appellant Insurance Company has preferred aforesaid Appeal From Order before this Court. AO/293/2007 6/10 JUDGMENT 3. Mr.Dakshesh Mehta, learned advocate appearing on behalf of the appellant – National Insurance Company Limited, Ms.Kapadia for Ms.Megha Jani, learned advocate appearing on behalf of the Oriental Insurance Company Limited and Mr.A.V. Prajapati, learned advocate appearing on behalf of the original claimants. 4. All the learned advocate appearing on behalf of the respective parties have jointly submitted that they have understood that the driver of the Jeep is held contributory negligent to the extent of 30% and the driver of the stationary Borewell Ring Machine is held negligent to the extent of 70% and the said finding was on appreciation of evidence and as such there was an error and/or mistake committed by the learned tribunal while passing the impugned order and award in operative portion of the judgement and award, which was required to be corrected by the tribunal. It is submitted that none of the Insurance Company has any objection if the said error is rectified. It is submitted that the National Insurance Company has already deposited 30% of the amount of compensation and 30% of the amount of compensation is deposited by the Oriental Insurance Company Limited and the Oriental Insurance Company is AO/293/2007 7/10 JUDGMENT ready and willing to deposit balance 40% of the amount of compensation as per the judgment and award if the review application No.6 of 2007 is allowed and the operative portion of the judgement and order is rectified and modified to the aforesaid extent. 5. Considering the above, it appears that when both the Insurance Companies have understood and agreed that the contributory negligence of the driver of the jeep (National Insurance Company Limited) and driver of the Borewell Ring Machine would be in the ratio of 30:70. In view of the specific findings recorded in para 21, the learned Motor Accident Claim Tribunal has materially erred in dismissing the review application and even modifying the finding on page 14 para 21 holding that the driver of the jeep (National Insurance Company Limited) and driver of the Borewell Ring Machine would be contributory negligent in the ratio of 70:30. Under the circumstances, the impugned order passed by the Presiding Officer, FTC No.2, dtd.29/3/2007 in Review Application No.6 of 2007, deserves to be quashed and set aside and the judgement and award passed by the tribunal dtd.27/9/2006 in Motor Accident Claim Petition Nos.933 of 2002 and 465 of 2003 are required to be AO/293/2007 8/10 JUDGMENT modified as per Review Application No.6 of 2007. 6. For the reasons stated above, Appeal From Order succeeds. The impugned judgement and award passed by the learned Presiding Officer, FTC No.2, Ahmedabad dtd.29/3/2001 in Review Application No.6 of 2007 in Motor Accident Claim Petition Nos. 933 of 2002 and 465 of 2003 is hereby quashed and set aside and Review Application No.6 of 2007 in Motor Accident Claim Petition Nos.933 of 2002 and 465 of 2003 is hereby allowed and the learned Motor Accident Claim Tribunal is directed to amend and modify the operative judgement and award dtd.27/9/2006 of Motor Accident Claim Petition No. 933 of 2002 in line No.3 and instead of 70:30 it should be read as 30:70. Similarly, the operative portion of the judgement and award dtd.27/9/2006 of Motor Accident Claim Petition No. 465 of 2003 more particularly in line No.3, instead of 70:30 it should be read as 30:70. The aforesaid judgement and award and the operative order be amended accordingly. Under the circumstances, the National Insurance Company Limited would be liable to pay 30% of awarded amount of compensation and the Oriental Insurance Company Ltd. would be liable to pay 70% of the awarded amount of compensation. AO/293/2007 9/10 JUDGMENT Accordingly, now the Oriental Insurance Company Limited would deposit balance 40% amount of compensation as per the respective judgement and order in Motor Accident Claim Petition Nos. 933 of 2002 and 465 of 2003 within six weeks from today and on such deposit, the learned Motor Accident Claim Tribunal is directed to invest the entire 40% amount of compensation along with interest and cost now to be deposited by the Oriental Insurance Company Limited, in Fixed Deposit in any Nationalised Bank for a period of five years and the original claimants shall be entitled to periodical interest on the said Fixed Deposit. The tribunal is directed to see that 50% of the aforesaid amount (50% of 40%) is invested in the name of original claimant No.1 – Chetnaben widow of deceased Upendrakumar Visabhai Oza, 25% of the aforesaid amount (25% of 40%) is invested in the name of original claimant No.2 – Shantaben Visabhai Oza, and 25% of the aforesaid amount (25% of 40%) is invested in the name of original claimant No.3 – Vishabhai Bhikhabhai Prajapati, in any Nationalised Bank for a period of five years as stated above, and they would be entitled to periodical interest on the said Fixed Deposit. The tribunal is directed to see AO/293/2007 10/10 JUDGMENT that the original claimants shall not take any advance, loan or shall not create any encumbrance on the said Fixed Deposit without prior permission of the Motor Accident Claim Tribunal and the Motor Accident Claim Tribunal to see that in exceptional case and/or in case of emergency only they may be permitted to withdraw some loan on the said Fixed Deposit Receipt. 7. In view of disposal of the main Appeal From Order, no order in both the Civil Applications. [M.R. SHAH, J.] rafik