Heard learned advocate Mr. Vibhuti Nanavati on behalf of appellant insurance company.
The insurance company has challenged interim order passed by Motor Accident Claims Tribunal below exh 5 in MACP no. 175/2008 dated 18/3/2009. This being a injury case claims Tribunal has awarded Rs. 25,000/- as interim compensation with 7% interest in favour of claimant while holding joint and several liability of respondents.
Learned advocate Mr. Nanavati submitted that detail reply means objection against interim application exh 34 filed by appellant insurance company. He made allegation that on 11/9/2007 claimant was pedestrian and he reached near Nagbai Mataji's temple means place of accident, Hero Honda Passion Plus bearing registration no. GJW-3BD-924 (Temporary Passing Number) dashed with him and applicant was received injuries. This facts are not admitted by appellant and denied that Jamkandorna Police Station registered a case in Crime No. I 66/2007 dated 13/9/2007 under section 279, 337, 338 of I.P.C. against driver of unknown Motor Cyclist. He submitted that owner - driver of Hero Honda Passion Plus no. GJW-3BD-924 was not holding valid and effective licence at the time of accident and he was not qualified for holding or obtaining such driving licence. He also submitted that insured of Hero Honda Passion Plus no. GJW-3BD-924 not dashed with applicant. As per police papers Bullet Motor Cycle No. GJ-3-LL-4546 first dashed with applicant then dashed with insured's Hero Honda Passion Plus no. GJW-3BD-924.
Therefore, alleged accident occurred due to sole negligence of driver of Bullet Motor cycle, who was driving motorcycle without following traffic rules. According to police papers, insured of Hero Honda Passion Plus not dashed with applicant, but Bullet Motorcycle first dashed with applicant and then dashed to insured of Hero Honda Passion Plus no. GJW- 3BD- 924. Therefore, accident was caused by sole negligence on the part of Bullet Motorcyclist and he was only responsible for occurrence of accident. So, entire liability to be fastened on driver of Bullet Motorcycle and present appellant insurance company may be exonerated as at the time of accident, Hero Honda Passion Plus was in stationary condition and not at all involved in accident.
Learned advocate Mr. Nanavati submitted that this objections have been raised before claims Tribunal, Godhara but not considered at all only on the ground that defence or objection of insurance company can be considered at the time when 166 application is decided by claims Tribunal.
I have considered submission made by learned advocate Mr. Nanavati and I have also perused interim order passed by claims Tribunal, Godhara. While perusing interim order, it is made clear that no such objection has been dealt with by claims Tribunal, though, it has been referred and objection has been filed by insurance company. The application u/s 166 is filed by claimant claiming compensation which is pending before claims Tribunal, Godhara. The contention raised by learned advocate Mr. Nanavati that if statutory defence is available u/s 149(2) of M. V. Act then even at the stage of 140 application, claims Tribunal must have to examine it relying upon decision of Apex Court in case of Smt Yallawwa reported in 2007 ACJ 1934.
In light of submission made by learned advocate Mr. Nanavati, present appeal is to be admitted by this Court, but merely admitting this appeal have no consequences because so long 166 application is pending before claims Tribunal, this appeal is to be remained pending before this Court. Therefore, according to my opinion, if present appeal is disposed of by this Court without expressing any opinion on merits, that will meet end of justice between parties.
In view of this present appeal is disposed by this Court without expressing any opinion on merits with a direction to claims Tribunal, Godhara to decide 166 application filed by claimant in accordance with law independently without influence by interim order. Meanwhile, it is directed to appellant insurance company to deposit entire awarded amounts together with costs and interest before claims Tribunal, Godhara. As and when claims Tribunal receive amounts from appellant insurance company, it is directed to claims Tribunal, Godhara to invest entire awarded amounts in name of Nazir of claims Tribunal with cumulative interest for a period of three years which would require periodical renewal till 166 application is decided by claims Tribunal, Godhara.
The respondent claimant is directed not to withdraw 166 application or not to abandon proceeding filed by claimant u/s 166 of M. V. Act. Learned advocate Mr. Nanavati submitted that vehicle in question itself is not involved in accident and other vehicle is involved i.e. Bullet Motorcycle and claimant has not join owner of Bullet Motorcycle and insurance company of said motorcycle, only claimant has join owner and insurance company of Hero Honda Passion Plus, which was in stationary condition at the time of accident and no dashed has been given by hero Honda Passion Plus to claimant. Therefore, in such circumstances, it is desirable that instead of deciding 140 application, this prima facie fact is believable on record, it is better and desirable that claims Tribunal must have to decide 166 application on merits which will restrict unnecessary litigation between parties.
It is made clear that respondent claimants are not entitled any amount of interest till 166 application is decided by claims Tribunal. However, in case if present appellant insurance company will exonerate, whatever amount lying with claims Tribunal, must have to refund back to appellant insurance by claims Tribunal.
Today, first appeal is disposed of therefore, no order is required to be passed in civil application. Accordingly, civil application is also disposed of.
(H.K.RATHOD, J) asma Top