FA/266/1997 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 266 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= KRISHNAPALSINH S VIJAYSINH & 1 - Appellant(s) Versus JYOTSANABEN JASHVANTRAI & 6 - Defendant(s) ========================================================= Appearance : MR. SUNIL PARIKH for MR RAJNI H MEHTA for Appellant(s) : 1 - 2. MR BM MANGUKIYA for Respondent(s) : 1 - 5. NOTICE SERVED for Respondent(s) : 6, MS MEGHA JANI for Respondent(s) : 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 10/07/2008 FA/266/1997 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Challenge in the instant First Appeal filed under Section 173 of the Motor Vehicles Act, 1988 (“the Act” for short) is to the correctness of the judgment and award dated 10.10.1996 rendered in MACP No. 21 of 1996 by the MACT (Main), Bhavnagar, by which the claim petition filed under Section 166 of the Act, by the Respondent Nos. 1 to 5 / Claimants, against the Appellants, the Owner and the Insurer as well as Respondent No.6, to recover the compensation of Rs.12,25,000/- on account of untimely demise of Jasvantrai Bhatt, who died in a vehicular accident which took place on 2.12.1995 at 3:30 pm, Near Rajeshri Cinema, Sector 21, Gandhinagar, came to be partly allowed and thereby the claimants were awarded total compensation of Rs.6,78,000/- together with interest @12% from the date of application till realization and proportionate cost and accordingly the Appellants, the Owner and the Insurer as well as Respondent No.6 were jointly and severally directed to pay the awarded amount to the claimants. 2. This Appeal has been admitted by a Division Bench of this Court by order dated 31.3.1998. 3. Today this matter is listed for final hearing. 4. We have considered the submissions advanced by Mr. Sunil Parikh, learned advocate for Mr. Rajni FA/266/1997 3/5 JUDGMENT H. Mehta, learned advocate of the Appellant and Mr. B.M.Mangukia, learned advocate for Respondent Nos. 1 to 5 / Claimants. We have also perused the impugned judgment and award and the Records and Proceedings of the case as well as the oral and documentary evidence, copies whereof have been supplied by the learned advocate Mr. Rajni H. Mehta, learned advocate of the Appellant. 5. It may be noted that this Appeal is jointly filed the owner/insured and the Insurance Company of the offending vehicle bearing registration No. GAW 6457, Driver of which was fully held negligent for causing the accident. On a perusal of the judgment, it is seen that the Driver and the Owner of the vehicle did not appear nor they have contested the claim petition by filing any written statement. At the same time Insurer also did not file any application under Section 170 of the Act seeking permission to contest the claim on the ground of negligence and quantum. 6. In the case of National Insurance Co. Ltd. v. Nicolletta Rohtagi and others, 2002 ACJ 1950 (SC), the Apex Court has held that when the insured has not filed written statement nor contested the claim petition, then the Appeal filed by the Insurance Company questioning the quantum of compensation and finding on negligence or contributory negligence of the offending vehicle is not permissible if the FA/266/1997 4/5 JUDGMENT Insurance Company has not obtained requisite permission under Section 170 of the Act. It is further held that a insurer cannot avoid its liability on any other grounds except those mentioned in sub-section (2) of section 149 of the Act. 7. The principal laid down by the Supreme Court has been followed by the Division Bench of this Court in the following two judgments: (i) Oriental Insurance Co. Ltd. v/s. Manjulaben Jayantibhai Patel, 2004 ACJ 172 (Gujarat). (ii) United India Insurance Company Ltd. And another v/s Shilpa Jigishbhai @J ignesh Vyas and others, 2005 ACJ 1645 (Gujarat). 8. Applying the principle laid down by the Supreme Court as well as this Court, to the facts of the instant case, admittedly the Insurance Company has not sought permission under Section 170 of the Act to contest the claim on all available grounds, therefore, such challenge without permission under Section 170 of the Act is not permissible. Over and above, the owner did not file written statement nor appeared at any stage before the Claims Tribunal to contest the claim petition. Therefore, owner also cannot challenge the award on merits as no contention was raised by the owner before the Claims Tribunal. FA/266/1997 5/5 JUDGMENT 9. In view of the above undisputed situation, the joint Appeal filed by the Insurer with the insured would not be maintainable. Even if the Appellant resort to transposition of the insurer company as the respondent, the appeal by the owner of the vehicle alone would not be maintainable as he has not contested the claim petition before the Tribunal. 10.Seen in the above context, the appeal fails on technical ground and deserves to be dismissed. 11.For the foregoing reasons, the Appeal fails and accordingly dismissed with no order as to costs. (A.M.Kapadia,J) (Z.K.Saiyed,J) Jayanti*