1. Both learned advocate Mr.Thakkar for the appellant and learned advocate Ms.Patel for respondent no.1-original claimant requested that considering the nature of appeal, the appeal may be heard and may be disposed of.
2. In above view of the matter, and as requested by learned counsel representing both the sides, the instant appeal is heard today and is being disposed of by this judgment. The instant appeal is filed by the appellant-Insurance Company (Original Opponent No.3) challenging the impugned order dated 24.02.2012, passed by the Motor Accident Claim Tribunal (Main), (Ahmedabad Rural) below application – Exh.3 in Motor Accident Claim Petition No. 2285 of 2010. The respondent no.1 herein, who is original claimant had filed the above mentioned claim petition and in the said claim petition filed an application Exh.3 under Section 140 of the Motor Vehicles Act seeking interim compensation under the head of no fault liability. The Tribunal, vide order dated 24.02.2012, allowed the said application Exh.3 and directed the appellant (Opponent no.3), so also respondent nos.2 and 3 herein, who were opponent nos. 1 and 2 to deposit Rs.25,000/- under no fault liability with interest at the rate of 7.5% per-annum with the concerned Claim Tribunal. The said order is under challenge in this appeal.
3. Mr.Thakkar, learned advocate for the appellant- Insurance Company, at the outset, submitted that the appellant-Insurance Company raised basic contention before the concerned Claim Tribunal that at the time of accident, the respondent no.1-original claimant was traveling in a goods vehicle as gratituous passenger, but in the impugned judgment and order passed by the Tribunal, the Tribunal has not dealt with such contentions on merits. It is, therefore, submitted that the appeal, therefore, requires consideration and the appeal may be allowed.
3.1 Mr.Thakkar, learned advocate for the appellant-Insurance Company, therefore, submitted that the matter requires to be remanded. However, he submitted that considering the fact that the original claim petition is of the Year-2010, if the concerned Claim Tribunal is directed to decide the application Exh.3 filed by the original claimant under Section 140 of the Motor Vehicles Act afresh, that would cause more delay to the otherwise old proceeding. In stead of that, Mr.Thakkar, learned advocate for the appellant-Insurance Company, submitted that the concerned Claim Tribunal may be directed to decide the main claim petition in accordance with law keeping open the rights and contentions of both the parties.
3.2 Mr.Thakkar, learned advocate for the appellant-Insurance Company, submitted that considering the ratio laid down by this Court in
GLH 465, the appellant-Insurance Company was constrained to file this appeal, otherwise at the time of final disposal of the main claim petition, it would have become difficult for the appellant-Insurance Company to raise such statutory defences.
3.3 Mr.Thakkar, learned advocate for the appellant-Insurance Company, submitted that pursuant to the order dated 31.08.2012, the appellant-Insurance Company has deposited the awarded amount with the concerned Claim Tribunal, and therefore, appropriate direction may be issued to the concerned Claim Tribunal.
4. Ms.Patel, learned advocate for the respondent no.1-original claimant, at the outset, submitted that before the Claim Tribunal, the claimant has produced sufficient prima-facie evidence to controvert the statutory defence raised by the appellant-Insurance Company. However, it is submitted that the said contention has not been dealt with by the concerned Claim Tribunal on merits.
5. None appeared for the respondent no.2 and 3- driver and owner of the vehicle involved in the accident.
6. I have taken into consideration the submissions advanced on behalf of both the sides, so also I have taken into consideration the impugned judgment and order passed by the Tribunal. It transpires that the appellant-Insurance Company raised statutory defences including the defence that at the time of accident, the respondent no.1-original claimant was traveling in the goods carriage vehicle as gratuitous passenger and considering the impugned order passed by the Tribunal, it transpires that the Tribunal has not dealt with this aspect of the matter on merits despite the fact that the Tribunal relied upon the case of Yallawwa & Ors. Vs. National Insurance Co. Ltd. and Others, reported in AIR 2007 SC 2582.
7. In above view of the matter, this Court is of the opinion that this appeal deserves to be allowed.
8. However, usually when such appeal is allowed and the impugned order passed by the Tribunal is set- aside, while remanding such matter, the Tribunal is usually directed to decide such application under Section 140 of the Motor Vehicles Act afresh in accordance with law, but in the instant matter, it clearly transpires that the original claim petition is of the Year-2010 and if such usual mode is adopted, it would amount to causing more delay to the otherwise old proceeding. In stead of that, as agreed by learned advocates representing both the parties, in the instant case, the Tribunal should be directed to expedite the hearing of the main claim petition, keeping open rights and contentions of both the sides and the Tribunal should also deserves to be directed to dispose of the claim petition within stipulated time.
9. For the foregoing reasons, the appeal is allowed. The Tribunal is directed to try and decide the Motor Accident Claim Petition NO.2285 of 2010 in accordance with law as expeditiously as possible preferably within six months from the date of communication of this order and all the rights and contentions raised by both the sides, are kept open and at the time of final disposal of the main claim petition, on the basis of the evidence that shall also be adduced by both the sides, the Tribunal shall also take into consideration the case pleaded by the claimant, so also the defences raised by the other-side, and thereafter, to dispose of the main claim petition on merits.
10. The Tribunal is directed to invest the amount deposited by the appellant-Insurance Company in FDR in any nationalized bank in the name of respondent no.1-original claimant for the period of one year or till the final disposal of the claim petition whichever period is earlier. However, respondent no.1-original claimant shall be entitled to get periodical interest thereon at the interval of every quarter. The original FDR shall be retained in the custody of Nazir of the said Tribunal.
11. Since, the appeal accordingly stands disposed of, Civil Application for Stay loses its survival value and stands disposed of.
Girish (J.C.UPADHYAYA,J.)