IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1956 of 2002 With FIRST APPEAL NO. 1957 of 2002 TO FIRST APPEAL NO. 1969 of 2002 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.D. 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 ?
============================================= NEW INDIA ASSURANCE CO LTD Appellant(s) Versus HEIRS OF DECD.UMESHBHAI BHIKHABHAI & 5 Defendant(s) ============================================= Appearance:
MR VIBHUTI NANAVATI, ADVOCATE for the Appellant(s) No. 1 MR BHAVESH N DAVE, ADVOCATE for the Defendant(s) No 1.1 1.2 MR KAMLESH B MEHTA, ADVOCATE for the Defendant(s) No 1.1 1.2 MR PALAK H THAKKAR, ADVOCATE for the Defendant(s) No. 5 MS MEGHA JANI, ADVOCATE for the Defendant(s) No. 4 NOTICE SERVED for the Defendant(s) No. 1.1 1.2 , 4 SERVED BY AFFIX.(R) for the Defendant(s) No. 2 3 ============================================= CORAM: HONOURABLE MR.JUSTICE M.D. SHAH Date : 19/09/2013 ORAL JUDGMENT
 When the matter is called out, Mr.Nanavati, learned advocate for the appellant and Mr.Thakkar, learned advocate for respondent no.5 is present. Mr.Bhavesh Dave, learned advocate appearing for the respondents – original claimants is not present.
 By this first appeals, the appellant herein – original opponent no.3 – New India Assurance Company Ltd. has challenged the judgment and award dated 19.04.2002 passed by the learned M.A.C.T. (Main.), Bhavnagar in M.A.C.P. No.677 of 1998 to M.A.C.P.No.681 of 1998, M.A.C.P.No.734 of 1998 to M.A.C.P.No.741 of 1998 and M.A.C.P.No.779 of 1998.
 All the claim petitions were filed to get compensation for the death of the deceased persons who died in a road accident which took place on 09.07.1998 near Kalyanpur on Bagodara Highway. After recording evidence, learned Tribunal by judgment dated 19.04.2002 partly allowed the claim petitions and awarded compensation in favour of the original claimants. Against the said award, original opponent no.3 – insurance company has preferred this appeals.
 It is submitted by learned advocate for the appellant herein – Insurance Company that Tribunal has not properly considered and appreciated the evidence on record. It is also submitted that Tribunal has committed error in conclusion that driver of Tata Sumo is 20% negligence and driver of the Truck is 80% negligence. It is submitted that in this appeals only point is raised by the appellant – Insurance Company to the effect that Development Officer of the appellant – Insurance Company who received premium on behalf of Insurance Company was suspended on 01.05.1997 and after passing order of suspension, he collected premium on behalf of the insurance company on 28.08.1997 though he had no authority to collect the amount and inspite of that Tribunal has held that this contention is not raised in the written statement and so insurance company is liable to pay compensation. Therefore, it is requested to allow the appeals.
 Heard learned advocates for the appellant. This Court has gone through the judgment and award dated 19.04.2002 passed by the learned Tribunal together with oral as well as documentary evidence on record.
 It is not in dispute that deceased persons died in the accident. During the course of proceedings, Insurance Company has examined one Amrutlal Solanki vide Exh.101 and he stated on oath before the Tribunal that Development Officer who collected the premium was suspended on 01.05.1997 and also deposed that public notice was also issued in the newspaper on 03.10.1997. He also deposed that premium was collected by the Development Officer on 28.08.1998. Merely because contention is not raised by the appellant – Insurance Company in the written statement and when by examining witness (Amrutlal Solanki – Exh.101) by the insurance company, reliable and cogent evidence are placed on record, then, from any angle it cannot be said that new story is put forward by the insurance company. Mr.Thakkar, learned advocate appearing for respondent no.5 – Insurance Company took this Court to the written statement vide Exh.30 in which also specific contention is raised in reference to the fraud committed by the Development Officer and he was suspended on 01.05.1997 and public notice to that effect was published in “Sandesh” daily on 03.10.1997. So in opinion of this Court, grave error is committed by the Tribunal in coming to the conclusion that new story is put forward by the Insurance Company.
 This Court has gone through the decision of Hon’ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation reported in (2009) 6 SSC 121.
 Considering the age of the deceased and considering the evidence on record and income of the deceased and ratio laid down by the Hon’ble Supreme Court in the case of Sarla Verma (supra), in opinion of this Court, so far as quantum is concerned, just and adequate compensation is awarded by the Tribunal and so far as point of negligence is concerned, no interference is called for by this Court.
[8.1.] Considering the fact that original claimants are third party, they should not suffer because of interse dispute of the insurance company.
 In view of above, the first appeals are partly allowed.
Judgment and award dated 19.04.2002 passed by the learned M.A.C.T. (Main.), Bhavnagar in M.A.C.P. No.677 of 1998 to M.A.C.P.No.681 of 1998, M.A.C.P.No.734 of 1998 to M.A.C.P.No.741 of 1998 and M.A.C.P.No.779 of 1998 is modified to the extent that appellant – Insurance Company shall pay the amount to the original claimants as per the award dated 19.04.2002 passed by the Tribunal and thereafter recover the same from the owner of the offending vehicle. The remaining part of the judgment and award would remain unaltered. Record and Proceedings, if any, be sent to the concerned Tribunal forthwith.