FA/1291/1997 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1291 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 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 ? ======================================================= ORIENTAL INSURANCE CO LTD - Appellant(s) Versus BARKATH ALI RAMZANALI VIRANI & 3 - Defendant(s) ======================================================= Appearance : MR KK NAIR for Appellant(s) : 1, MR DC SEJPAL for Defendant(s) : 1, MR CHAUHAN for Defendant(s) : 2, MR JITENDRA M PATEL for Defendant(s) : 3 - 4. ======================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/01/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and award dated 26.08.1996 passed in Motor FA/1291/1997 2/5 JUDGMENT Accident Claim Petition No.340/1993 by the Motor Accident Claims Tribunal (Main), Bhavnagar, whereby the Tribunal has directed the opponent nos.2, 3 and 4 to pay a sum of Rs.71,158/- with interest @ 15% p.m. from the date of the application till the payment and proportionate cost to the appellant. 2. The brief facts as emerging from the record are that on 25.04.1993 at about 5:00 hours in the early morning, the present incident took place, wherein the tanker loaded with crude oil worth of Rs.65,058/- had turtled due to rash and negligent and, hence, the appellant suffered heavy financial loss. Therefore, the claimant filed claim petition before the Tribunal claiming compensation. 3. In the said application, after hearing the parties, the Tribunal passed impugned judgment and award. Being aggrieved and dissatisfied with the same, the appellant-the Oriental Insurance Co. Ltd. has preferred the present appeal. 4. Learned counsel for the appellant, Mr.K.K. FA/1291/1997 3/5 JUDGMENT Nair has relied upon the policy (Exh.44), more particular, condition, which read as under :- “IMT 70 – INCREASE IN THE LIMITS OF PROPERTY DAMAGE. (Applicable to “B” Policies only). In consideration of payment of additional premium Rs....... it is hereby declared and agreed that the limit of liability under Section-II(ii) of the Policy is increased from Rs.6000/- to Rs......... only in respect of property other than property belonging to the insured or held in trust or in the custody or control of the insured. It is further specifically understood and agreed that the increased limit does not apply to property carried in the vehicle hereby insured.” 5. He has also placed reliance upon the judgment reported in 1991(1) G.L.H. 412. It is contended by Mr.Nair that the Insurance Company is not liable for the goods, which are not insured. Raising abovesaid contentions, it is submitted that the appeals deserves to be allowed and the judgment and award as pronounced by the Tribunal requires modification. 6. Learned counsel for the respondent opposed the same and supported the impugned judgment FA/1291/1997 4/5 JUDGMENT and award of the Tribunal. 7. I have heard learned counsel appearing for the respective parties. From the evidence on record, it is established that the goods, which were carried, were of third party and were not covered under the policy, more particularly, in view of condition IMT-70. In that view of the matter, the Tribunal has committed an error and the appeal deserves to be allowed the Judgment and Award passed by the Tribunal is required to be modified. 8. In the result, the appeal is partly allowed and the judgment and award dated 26.08.1996 passed in Motor Accident Claim Petition No.340/1993 by the Motor Accident Claims Tribunal (Main), Bhavnagar is hereby quashed and set aside qua the present appellant- Oriental Insurance Co. Ltd. (original opponent no.4). The appeal is allowed to the aforesaid extent. Decree to be drawn accordingly. 9. It will be open for the claimant to recover the same from the original owner of the FA/1291/1997 5/5 JUDGMENT vehicle. If the amount deposited by the Insurance Company, if it is lying in the FDR then, it will be returned to the Insurance Company and if it is not then, it will be open for the Insurance Company to recover from the owner. Sd/- (K.S.JHAVERI, J.) /patil