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New India Assurance Co. Ltd. Through v/s Superintendent Engineer & Others

    R. First Appeal Nos. 4082 & 4083 of 2008 with R. Cross Objection Nos.5 & 6 of 2014

    Decided On, 22 February 2022

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE A. J. DESAI & THE HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

    For the Appellant: Vibhuti Nanavati, Advocate. For the Defendants: HRIDAY BUCH, Advocate.



Judgment Text

Common Oral Judgment:

A.J. Desai, J.

1. The aforesaid two First Appeals have been filed by the appellant - New India Assurance Company Limited - original respondent No.2 in the Claim Petitions, under Section 173 read withSection 166of the Motor Vehicles Act, 1988 challenging the judgment and award dated 13.7.2007 passed by the Motor Accident Claims Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as 'the Tribunal') in Motor Accident Claim Petition Nos.332 and 333 of 2006. By the said award, the Tribunal has awarded an amount of Rs.12,54,960/- to the legal heirs of deceased Mukesh V. Raval (original claimants of Claim Petition No.332 of 2006 - respondent Nos.2 to 4 of First Appeal No.4082 of 2008) and Rs.10,51,200/- to the legal heirs of deceased Shahid Chhatrasinh Parmar (original claimants of Claim Petition No.333 of 2006 - respondent Nos.2 to 5 of First Appeal No.4083 of 2008), with proportionate cost and interest @ 7.5 % p.a. from the date of petition till realization.

2. The short facts arise from the record are as under :-

2.1 That on 4.8.2006 at about 8.30 p.m., one Mukesh V. Raval, who was working as Plant Operator with Gujarat Electricity Board was travelling on his two wheeler being Registration No.-GJ- 18-P-8714 along with Shahid Chhatrasinh Parmar who was working with Doshian Limited as Mechanical Engineer, and at that time, one Ambassador Car bearing Registration No.GJ-18-G-1112 came in excessive speed and dashed with the bike due to which both Mukesh V. Raval and Shahid Parmar sustained serious injuries and they succumbed to the said injuries.

2.2 Legal heirs ofMukesh V. Patelfiled MACP No.332 of 2006 claiming compensation of Rs.35 Lacs with proportionate cost and interest @ 15% p.a. from the opponents jointly and severally.

2.3 Legal heirs of Shahid Chhatrasinh Parmar filed MACP No.333 of 2006 claiming compensation of Rs.20 Lacs with proportionate cost and interest @ 15% p.a. from the opponents jointly and severally.

2.4 The respondent No.1 - Superintendent Engineer, R & B Department, Gandhinagar as well as respondent No.2 - New India Assurance Company Limited, appeared before the Tribunal. The respondent No.2 - New India Assurance Company Limited filed its written statement at Exh.19 in both the claim petitions and opposed the compensation prayed for by the claimants, whereas respondent No.1 - Superintendent Engineer initially did not file written statement. However, on completion of the evidence on behalf of the claimants, respondent No.1 filed written statement at Exh.50.

2.3 The Tribunal after considering the depositions and the documentary evidence, passed the award under challenge.

2.4 Hence the present appeals.

3. During the pendency of the appeals, legal heirs of the deceased - original claimants filed cross objections in both the appeals seeking enhancement of the compensation awarded and the same were ordered to be heard along with the first appeals.

4. Mr. Vibhuti Nanavati, learned advocate appearing for the appellant - Insurance Company, at the outset, would submit that when the appellant - Insurance Company came to know about passing of the award without affording an opportunity to the Insurance Company to lead its evidence before the Tribunal, writ petitions being Special Civil Application No.9174 and 9175 of 2008 were filed. The said petitions were disposed of by oral order dated 11.7.2008 permitting the appellant to prefer First Appeals and clarifying that rights of the parties would be governed by the order which may be passed in the First Appeals. He has placed on record copy of the said order.

4.1 Mr. Nanavati, by taking us through the records and proceedings of the Tribunal and particularly, Rojkam would submit that the matter was listed on 29.6.2007 and on the said date, closing purshish on behalf of the claimants was filed and the matter was fixed on 7.7.2007 for leading evidence on behalf of the respondents. On 7.7.007, respondent No.1 - Superintendent Engineer, R & B Department, whose stage to file written statement was closed was permitted to file written statement. However, the Superintendent Engineer, R & B Department submitted a closing purshish and did not examine any witness and the matter was adjourned to 13.7.2007 for orders.

4.2 Mr. Nanavati would further submit that on 13.7.2007, an application was submitted on behalf of Insurance Company to grant some time to examine witness on its behalf. However, the Tribunal rejected the said application on the ground that judgment (Exh.55) was pronounced on the same day i.e. 13.7.2007. Therefore, the appellant - Insurance Company submitted an application Exh.58 for review of the judgment and award which application was also rejected by the Tribunal on 2.5.2008.

4.3 Mr. Nanavati would further submit that the appellant had already filed its written statement for which various issues were raised about the usage of the vehicle at the instance of the respondent No.1 and, therefore, it was necessary for the Insurance Company to examine its witnesses and, therefore, the Tribunal ought to have granted time to examine its witnesses. He would further submit that without affording an opportunity to lead evidence, judgment has been passed by the Tribunal. Therefore, when the said judgment was challenged by way of writ petitions, the learned Single Judge has observed that this contention can be raised in the First Appeals that may be filed challenging the said judgment and award. He, therefore, would submit that the impugned judgment and award may be quashed and set aside and the claim petitions may be remanded to the Tribunal for passing order afresh.

5. On the other hand, Mr. Hriday Buch, learned advocate appearing for respondent Nos.2 to 4 - original claimants in both the Appeals would submit that the Tribunal has committed no error in rejecting the request made on behalf of the Appellants - Insurance Company observing that the Company has not utilized sufficient opportunity granted to lead the evidence. However, he would submit that if this Court inclines to remand the matter to the Tribunal for fresh consideration, the case of the original claimants with regard to compensation claimed by them in their respective claim petitions be kept. He, therefore, would submit that appropriate order may be passed.

6. We have heard learned advocates appearing for the respective parties and perused the records and proceedings of both the claim petitions. It is an undisputed fact that the appellant - New India Assurance Company Limited did file its written statement Exh.19 in each claim petitions and has raised various contentions which could have been supported if the Tribunal had permitted the Insurance Company to examine its witness.

7. We have also perused the Rojkam. From the same, it appears that on 29.6.2007, the advocate for the claimants did submit closing purshish Exh.45 and thereafter, the matter was kept for recording evidence of the opponents. On 7.7.2007, the respondent No.1 i.e. Superintendent Engineer, R & B Department submitted a written statement which was taken on record. However, advocate for New India Assurance Company Limited (respondent No.2 before the Tribunal) did not remain present and, therefore, matter was kept on 13.7.2007. It is an undisputed fact that on 13.7.2007, judgment (Exh.55) was pronounced i.e. on the day when Insurance Company submitted an application Exh.57 to grant some more time to examine its witnesses which was rejected. Therefore, in our view, submissions made on behalf of the appellant - Insurance Company is required to be accepted. We also accept the submission made on behalf of the original claimants about compensation which has been raised in the cross objections.

8. Considering the above aspects of the matter, the present appeals stand allowed. The impugned judgment and award dated 13.7.2007 passed by the Motor Accident Claims Tribunal (Auxiliary), Gandhinagar in Motor Accident Claim Petition Nos.332 and 333 of 2006 as well as the order passed below applications Exh.57 and 58 in the said claim petitions are hereby quashed and set aside. Claim Petition Nos.332 and 333 of 2006 are ordered to be revived to its original file. The appellant - New India Assurance Company Limited shall examine its witnesses at the earliest, within a period of three weeks from the date of receipt of writ and/or certified copy of the order by the Tribunal.

9. The Tribunal shall decide both the claim petitions in accordance with law, without being influenced by its earlier order as well as this order. The Tribunal shall also consider afresh about the quantum of compensation which was requested to be enhanced by the original claimants in the cross objections. The Tribunal shall decide Claim Petition Nos.332 and 333 of 2006 expeditiously, preferably within

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a period of three months from the date of completion of examination of witnesses by the Insurance Company. 10. It is stated at the bar by learned advocates appearing for the respective parties that in pursuance of the award passed by the Tribunal, the Insurance Company had deposited entire amount with the Tribunal and out of the said amount, as per the order dated 27.8.2008 passed by the coordinate Bench of this Court, 50% amount has already been disbursed in favour of the original claimants and the remaining 50% amount was ordered to be invested in Fixed Deposit Receipt for a period of five years and it was ordered to renew the same automatic till the appeals are decided. The Tribunal shall keep the said amount in Fixed Deposit Receipts till the claim petitions are decided afresh as directed above. Registry is directed to send back the Records and Proceedings to the Tribunal forthwith. In view of disposal of appeals, cross objections also stand disposed of.
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