1. Mr. Mazmudar learned advocate for the appellant-Insurance Company so also Mr. Darji learned advocate for the respondent nos.1 and 2 [original claimants] and Mr. Mehta learned advocate for the respondent no.5-Insurance Company submitted that considering the nature of appeal the entire appeal may be heard and disposed of. They further submitted that the presence of respondent nos.3 & 4 may not be required since respondent nos.3 is a driver and respondent no.4 is owner of the vehicle, which was insured with respondent no.5-Insurance Company, which is represented by the learned advocate Mr. Mehta.
2. In above view of the matter, with the consent of the learned advocates for the parties, the appeal is taken up for final hearing and is being disposed of today.
3. The instant appeal is filed challenging the common order dated 31/01/2012 passed by learned MACT (Aux.), Ahmedabad Evening Court in group of matters including MACP NO.110/2008 below the application filed by the respondent nos.1 and 2 [original claimants], seeking interim compensation under 'No Fault Liability' u/s.140 of the Motor Vehicles Act. By virtue of the impugned order passed by the Tribunal, the Tribunal directed the appellant herein so also respondent nos.3 to 7 to pay jointly and severally Rs.50,000/- by way of interim compensation u/s.140 of the Motor Vehicles Act to the respondent nos.1 and 2 herein, who were the original claimants with simple interest at the rate of 9% per annum from the date of filing of the aforementioned claim petition till the realization.
4. Mr. Mazmudar learned advocate for the appellant Insurance Company, at the outset, submitted that despite the fact that the appellant-Insurance Company had raised an important statutory defence regarding defective driving license of the driver of the vehicle, involved in the accident so also a defence that the deceased was travelling unauthorizedly in a goods carriage vehicle, the concerned Claim Tribunal did not deal with said aspect of the matter and passed common order in connection with 22 Claim Petitions. Mr. Mazmudar learned advocate for the appellant-Insurance Company, therefore, submitted that considering the above defence raised by the appellant-Insurance Company in connection with MACP No.110/2008, individually to said case, the Tribunal has not specifically dealt with said aspect. Mr. Mazmudar learned advocate for the appellant, therefore, submitted that the appeal deserves consideration and may be allowed. Mr. Mazmudar learned advocate for the appellant submitted that since the original claim petition is of the year 2008, it will not be in the interest of justice for both the parties, if the concerned Claim Tribunal is requested to hear and decide the application, filed by the claimants u/s.140 of the Motor Vehicles Act afresh, because, that would cause more delay to otherwise old matter. Instead of that, Mr. Mazmudar learned advocate for the appellant submitted that the concerned Claim Tribunal may be directed to disposed of the main claim petition in accordance with law keeping open the rights and contentions of both the parties. Mr. Mazmudar learned advocate for the appellant submitted that in view of the ratio laid down by this Court in the case of 'Oriental Insurance Company Ltd. Vs. Siddiqbhai Ukabhai Solanki' reported in 2012 (2) GLH 465, the appellant-Insurance Company was constrained to file this appeal, otherwise at the end of trial before the Tribunal, it would be difficult for the appellant-Insurance Company to raise these statutory defences.
5. Heard Mr. Darji learned advocate for the respondent nos.1 and 2 [original claimants] and Mr. Mehta learned advocate for the respondent no.5- Insurance Company. Mr. Darji learned advocate for the respondent nos.1 and 2 [original claimants] submitted that the claimants placed relevant prima-facie evidence before the Tribunal to controvert the defence of the appellant-Insurance Company, but it is true that in connection with 22 matters, common order is passed and individually, the defence raised by the appellant-Insurance Company in MACP No.110/2008, has not been examined.
6. I have taken into consideration the impugned common order passed by the Tribunal so also I have taken into consideration the submissions advanced on behalf of both the sides. Considering the impugned order passed by the Tribunal, it transpires that the Tribunal by common order disposed of applications, filed by different claimants u/s.140 of the Motor Vehicles Act, almost in 22 Claim Petitions. It, therefore, transpires that so far as MACP No.110/2008 is concerned, by taking said case individually, the Tribunal has not examined on merits the contentions raised by the appellant in connection with the application u/s.140 of the Motor Vehicles Act in said matter. Under such circumstances, the instant appeal deserves to be allowed. Usually, when the appeal is allowed and the impugned order passed by the Tribunal is set aside, the matter is remanded to the concerned Claim Tribunal to decide said application afresh on merits. However, in the instant matter, as submitted by Mr. Mazmudar learned advocate for the appellant, the original Claim Petition is of the year 2008 and in that view of the matter, if the concerned Claim Tribunal is directed to hear and decide the application u/s.140 of the Motor Vehicles Act afresh, that would cause more delay to otherwise old matter. Thus, as agreed by learned advocates representing both the parties, it would be in the interest of justice, if the concerned Claim Tribunal is directed to expedite the trial of MACP No.110/2008 and disposed of said matter in accordance with law within six months from the date of communication of this order by keeping open the rights and contentions of both the sides. This order would meet the ends of justice.
7. Mr. Mazmudar learned advocate for the appellant- Insurance Company submitted that both the Insurance Companies viz. the appellant so also the respondent no.5–Insurance Company have deposited their shares pursuant to the impugned order passed by the Tribunal. It appears that the respondent no.5- Insurance Company has not challenged the impugned order passed by the Tribunal.
8. For the foregoing reasons, the appeal is partly allowed. The concerned Claim Tribunal is directed to expedite the trial of MACP NO.110/2008 and to decide the said Claim Petition in accordance with law and to dispose of said Claim Petition preferably within six months from the date of communication of this order, keeping open the rights and contentions of both the parties. Accordingly, the rights and contentions raised by the respondent nos.1 and 2 [original claimants] so also both the Insurance Companies, are kept open.
9. The Tribunal is directed to disburse 30% of the amount deposited, to the respondent nos.1 and 2 [original claimants]. The remaining 70% amount of the deposit shall be invested by the Tribunal in FDR in a Nationalised Bank in the names of respondent nos.1 and 2 [original claimants], initially, for a period of one year or till the final disposal of the main Claim Petition, whichever, period is earlier. The respondent nos.1 and 2 [original claimants] shall be entitled to get periodical interest on the FDR at the interval of every quarter. The original FDR shall be retained in the custody of Nazir of the said Tribunal. Since the appeal accordingly stands disposed of, the Civil application for Stay loses its survival value and also, stands disposed of.
aruna (J.C.UPADHYAYA, J)