FA/46/2002 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 46 of 2002 With FIRST APPEAL No. 4958 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 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 CO.LTD. Versus CHIMANLAL HANSRAJ SHAH AND OTHERS ========================================= =Appearance in First Appeal No.46 of 2002: MS MEGHA JANI for the Appellant MR AMAR D MITHANI for Defendant(s) : 1 - 3. NOTICE SERVED for Defendant(s) : 4, 7, 9, MR RR TRIVEDI for Defendant(s) : 5, DELETED for Defendant(s) : 6, (MR PV NANAVATI) for Defendant(s) : 8, MR VIBHUTI NANAVATI for Defendant(s) : 8, Appearance in First Appeal No.4958 of 2001: MR PV NANAVATI with MR VIBHUTI NANAVATI for the Appellant None for Defendant No.1 MR AMAR D MITHANI for Defendant(s) : 1.2.1., 1.2.2., 1.2.3 NOTICE SERVED for Defendant(s) : 2,5- 7, MR RR TRIVEDI for Defendant(s) : 3, NOTICE UNSERVED FOR Defendant No.4 ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and FA/46/2002 2/3 JUDGMENT HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 01/09/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Heard the learned counsel for the parties. In these two appeals, First Appeal No. 4958 of 2001 is filed by the New India Assurance Company Ltd. As regards the appeal of the New India Assurance Company is concerned, we are informed that the appellant has taken the stand that the vehicle was sold and there was no transfer of the policy. On this count alone, we do not think that on this technical ground, the appeal of the New India Assurance Company be entertained. Thus, we confirm the award passed by the Tribunal. First Appeal No. 4958 of 2001 is dismissed. As far as the appeal of the National Insurance Company, being First Appeal No.46 of 2002, is concerned, we are informed that the insurance policy was mooted on 30.5.1991 and the cheque was also encashed on or around 30.5.1991, whereas the accident had taken place on 26.5.1991. Thus, on the day when the accident took place, there was no proper insurance cover available. Whatever insurance cover is available is on the basis of the misstatement on the part of the purchaser stating inter alia that there had been no accident involving the vehicle in question until 30.5.1991, which is wrong statement because on 26.5.1991, there had already been the accident that took place. That being the position, the insurance policy came into being only by fraud. In that view of the matter, the liability of the Insurance Company FA/46/2002 3/3 JUDGMENT under the award is not liable to be executed and the same is set aside. The Tribunal will modify the award accordingly and issue fresh award. First Appeal No.46 of 2002 is disposed of. Since the National Insurance Company has been exonerated by us on the ground of fraud, any amount deposited by the National Insurance will be refunded to the Insurance Company. The claimants may have their lawful say wherever they can make. The order against the Insurance Company would not in any way take away the right of the claimants. Record and proceedings be sent back forthwith. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar