FA/567/1996 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 567 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA 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 ? ========================================= = ORIENTAL INSURANCE CO.LTD. Versus AMITABEN WIDOW OF BAKULBHAI SOMABHAI PATEL & 3 ========================================= = Appearance : MR RAJNI H MEHTA for Appellant MR BG PATEL for Respondents No. 1, 3 None for Respondent No. 2 NOTICE SERVED for Respondent No. 4 ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH FA/567/1996 2/7 JUDGMENT Date : 27/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) [1] The present First Appeal has been filed by the appellant – original opponent No.2 – The Oriental Insurance Company Limited challenging the judgment and award dated 15.09.1995 passed by the Motor Accident Claims Tribunal (Main), Kheda, District : Nadiad in Motor Accident Claims Petition No.1148/1987 by which the Tribunal has directed the appellant to pay an amount of Rs.5,10,375/- with running interest at the rate of 12% from the date of the application till realisation. [2] Respondents No.1 to 3 – original applicants No.1 to 3 submitted Motor Accident Claims Petition No.1148/1987 before the Motor Accident Claims Tribunal (Main), Kheda, District : Nadiad initially claiming of Rs.6,00,000/- by way of compensation for the death of one Bakulesh Somabhai Patel, the husband of the respondent No.1, herein who was alleged to have been died in a vehicular accident which took place on 22.06.1987 involving Truck No.GTJ-6444 owned and driven by respondent No.4, herein – original opponent No.1. Thereafter, the claim was enhanced to Rs.12,50,000/-. [3] It was submitted on behalf of the original claimants that deceased was going on Thasra-Sevalia Highway Road at 10.00 p.m. FA/567/1996 3/7 JUDGMENT On 22.06.1987 and according to the original claimants, he was driving the scooter carefully and on correct side of the road. As per the original claimants, one Truck bearing No.GTJ-6444 came from the otherside in excessive speed which came on the wrong side of the road and dashed with the scooter and the scooter fell in a ditch and dashed with a tree and deceased received injuries on head and face and he succumbed to the injuries. Therefore, the claimants filed claim petition for getting the aforesaid compensation. The claim was contested by the Insurance Company by filing written statement and it was specifically denied that the truck in question bearing Truck No.GTJ-6444 was involved in the accident and that it was specifically pleaded that there was collusion between the claimants and the original opponent No.1 – owner-cum-driver of the Truck bearing No.GTJ-6444. Even the original opponent No.1 - owner-cum-driver was also filed the written statement. The Tribunal, thereafter, framed the issues at Ex.17 which reads as under : 1. Whether the applicants prove that the deceased died due to the rash and negligence driving of the driver of the vehicle involved in the accident ? 2. Whether the applicants are entitled to compensation ? If yes, what amount and from whom ? 3. What award and order ? [4] On behalf of the claimant – original applicant No.1 – Amitaben FA/567/1996 4/7 JUDGMENT wd/o. Bakulesh Somabhai Patel came to be examined at Ex.28. One Girishbhai Kantibhai, who was at the relevant time pillion rider also, came to be examined at Ex.36. The Insurance Company was permitted to cross-examine the aforesaid two witnesses and ultimately, by impugned judgment and award partly allowed the said claim petition directing the appellant – original opponents to pay jointly and severally an amount of Rs.5,10,375/- along with 12% running interest from the date of the application till realisation by holding the driver of the Truck Rameshbhai Somabhai Patel was negligence to the extent of 75% and the driver of the scooter i.e. deceased Bakulesh was negligence to the extent of 25%. Being aggrieved and dissatisfied by the judgment and award dated 15.09.1995, the appellant preferred the present appeal. [5] Looking to the facts and circumstances of the case and there is no specific finding given by the Tribunal to the effect that in fact, the applicants have proved that the deceased died due to negligence driving of the driver of the vehicle i.e. Truck No.GTJ-6444 involved in the accident and considering the fact that the issue No.1 has not been properly answered by the Tribunal to the effect that in fact, the Truck No.GTJ-6444 was involved in the accident, there is a consensus between the learned advocates appearing on behalf of appellant as well as respondents No. 1 to 3, herein – original claimants that the matter be remanded by quashing and setting aside the impugned judgment and award without observing FA/567/1996 5/7 JUDGMENT anything on the merits of the case and all the parties be permitted to lead further evidence also and, therefore, we are not assigning any further reasons in support of our present order. In fact, looking to the judgment and award passed by the Tribunal, we are also of the opinion that the matter deserves remand by quashing and setting aside the impugned judgment and award. [6] Under the circumstances, the impugned judgment and award passed by the Motor Accident Claims Tribunal (Main), Kheda at Nadiad dated 15.09.1995 passed in Motor Accident Claims Petition No.1148/1987 is hereby quashed and set aside. The matter is remanded to the Tribunal for deciding the same afresh in accordance with law and on merits. In the facts and circumstances of the case and as the Insurance Company has pleaded that there is a collusion between the original claimants and the driver-cum-owner of the Truck bearing No.GTJ-6444, it will be open for the Insurance Company to submit an appropriate application before the Tribunal to permit them to contest the claim on merits and raise all defences available to them and as and when such application is submitted, the Tribunal shall consider the same in accordance with law and pass an appropriate order permitting the Insurance Company to contest the claim petition on merits and on all defences available to them. It will also be open for all the parties to lead further evidence and the same shall be considered in accordance with law and on merits. In the facts and circumstances of the case, the FA/567/1996 6/7 JUDGMENT Tribunal is directed to decide and dispose of the aforesaid claim petition on merits within a period of six months from the date of receipt of the writ of this order, but not later than 31.10.2008. All concerned are directed to co-operate with the Tribunal for early disposal of the said claim petition. It is reported that pursuant to the impugned judgment and award passed by the Motor Accident Claims Tribunal, the Insurance Company has deposited Rs.10,54,977/-, out of which original claimants were permitted to withdraw Rs.54,977/- and Rs.10,00,000/- was directed to be invested in the Nationalized Bank and claimants were permitted to withdraw interest on the said Fixed Deposit and during the pendency of the present appeal, the original claimants have been paid the interest on the said Fixed Deposit of Rs.10,00,000/-. Therefore, it is ordered that till the claim petition, on remand is decided and disposed of by the Tribunal, the same interim arrangement be continued without prejudice to rights and contentions of the respective parties and subject to the ultimate out come of the claim petition. By continuing the said interim arrangement, nothing shall be construed in favour of any of the parties. With this, the present appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. The Registry is directed to issue the writ of this order to the Tribunal immediately. The Registry is also directed to transmit back the Record & Proceedings of the case to the Tribunal immediately. FA/567/1996 7/7 JUDGMENT [J. R. VORA,J.] [M. R. SHAH,J.] vijay