New India Assurance Co Ltd vs Juwansinh Motibhai Parmar & 5

1. Heard learned advocates, Mr.Palak Thakkar for the appellant and Mr.Chetan Pandya for respondent Nos.6.1 to 6.5 and Mr.Mehta for the respondent No.5.

2. It was held by the tribunal while deciding applications filed under Sec.163­A of the Motor Vehicles Act (‘the Act’ for short) that question does not arise to decide whether risk is covered or not as these applications have been decided on the principle of No Fault Liability.

3. In view of the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited V/s Swaran Singh reported in (2004)3 SCC 297, more particularly paragraphs 110(ii) wherein it has been held that insurance company is entitled to raise a defense in terms of Section 149(2)(a)(ii) of the Act in a claim petition filed under Section 163­A or Section 166 of the Act. Paragraph 110(ii) reads as under:

“110. The summary of our findings to the various issues as raised in these petitions is as follows:

(i) .....

(ii) An insurer is entitled to raise a defense in a claim petition filed under Section 163­A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of section 149(2)(a)(ii) of the said Act.”

4. In view of the ratio laid down in the aforesaid reported case, while deciding the application filed under Sec.163­A of the Act, if the Insurance Company has raised the contention that there is breach of condition of policy, it is incumbent upon the tribunal to decide the said issue in light of the evidence adduced by the parties. In view of this, both the matters are required to be remanded to the tribunal for deciding afresh after giving opportunity of hearing to both the parties.

5. Thus, both the appeals are accordingly partly allowed. Impugned judgments and awards dated 5­6­ 2004 passed in Misc. MACP No.1 of 2002 and Misc. MACP No.5 of 2002 passed by the Motor Accident Claims Tribunal(Main), Kheda at Nadiad, are hereby quashed and set aside and matters are remanded back to the tribunal for a decision afresh in accordance with law after giving opportunity of hearing to both the sides. It is also clarified that if insurance company has raised the contention that there is a breach of condition of policy, the tribunal will decide the same in accordance with law. Amount, if any, lying deposited with this Court shall be transmitted to the tribunal.

6. Office is directed to send back the record and proceedings forthwith.

7. Office shall keep a copy of this judgment in each matter.

RADHAN (M.D.SHAH, J.)