1. This appeal is filed challenging the impugned order dated 15/10/2011 passed by learned Motor Accident Claim Tribunal (Aux.-1), Gandhinagar below application Exh.3 in MACP No.246/2009, whereby, the aforementioned application filed by the respondent nos.1 & 2 – original claimants u/s.140 of the Motor Vehicles Act, seeking interim compensation under 'No Fault Liability' came to be allowed and the Tribunal directed the respondent no.3 herein being the driver-cum-owner of the vehicle and the appellant-opponent no.2 herein being the insurer to pay the amount of interim compensation to the respondent nos.1 & 2 herein [the original claimants].
2. Mr. Thakker learned advocate for the appellant- Insurance Company, at the outset, submitted that before the Claim Tribunal, a contention was raised regarding the defective driving license of the driver of the vehicle. It is submitted that since the vehicle involved in the accident was a goods carriage vehicle, whereas, the driver of the vehicle was not holding the license to drive goods carriage vehicle. Mr. Thakker learned advocate for the appellant- Insurance Company submitted that despite the fact that such basic contention was raised before the Tribunal, but the Tribunal did not discuss the said contention and passed the impugned order u/s.140 of the Motor Vehicles Act. Mr. Thakker learned advocate for the appellant, therefore, submitted that the appeal deserves to be allowed. Further, he submitted that considering the fact that the original claim petition is of the year 2009, instead of remanding back the matter to the Tribunal to decide afresh the application u/s.140 of the Motor Vehicles Act, it would be in the interest of justice, if, keeping open the rights and contentions raised by both the sides, the concerned Claim Tribunal is directed to decide the main Claim Petition at the earliest on merits.
3. None appeared for the respondent nos.1 & 2- original claimants. Mr. HK Shah learned advocate appears for the respondent no.3- the driver-cum-owner of the vehicle and he submitted that considering the fact that in the impugned order, the Tribunal has not decided the contention raised by the Insurance Company on merits, necessary orders may be passed.
4. Considering the impugned order passed by the Tribunal, it transpires that despite the fact that a contention was raised before the Claim Tribunal regarding the validity of the driving license of driver of the vehicle, the Tribunal did not examine said question on merits and even did not deal with this aspect. It transpires that in above view of the situation, and in view of the decision rendered by this Court in the case of 'Oriental Insurance Company Ltd. Vs. Siddiqbhai' reported in 2012 (2) GLH 465, the appellant- Insurance Company had no option, but to file this appeal.
5. Resultantly, this Court is of the opinion that since the basic contention raised by the appellant- Insurance Company has not been dealt with by the concerned Claim Tribunal in the impugned order passed u/s.140 of the M.V. Act, usually, by allowing such appeal and by remanding the matter to the concerned Claim Tribunal, the Tribunal is usually directed to decide afresh the application u/s.140 of the M.V. Act. However, in the instant case, this Court is of the opinion that it may not be advisable to direct the Claim Tribunal to decide afresh the application u/s.140 of the M.V. Act because thereby this Court is of the opinion that the old matter would become more older since the original claim petition is of the year 2009. Under such circumstances, as submitted by Mr. Thakker learned advocate for the appellant, it would be in the interest of justice for both the sides, if, keeping open the rights and contentions of both the sides, the Tribunal is directed to try and decide the main claim petition filed u/s.166 of the M.V. Act on merits.
6. Mr. Thakker learned advocate for the appellant submitted that pursuant to the order dated 01/02/2012, the appellant- Insurance Company has already deposited the awarded amount, awarded u/s.140 of the M.V. Act with the concerned Claim Tribunal. In above view of the matter, this Court is of the opinion that the Tribunal should be directed to invest the amount deposited by the appellant- Insurance Company in FDR in a Nationalised Bank with certain further directions.
7. For the foregoing reasons, the appeal is partly allowed. Learned MACT (Aux.-1), Gandhinagar is directed to expedite the hearing of MACP No.246/2009. The rights and contentions raised by both the sides are hereby kept open and the Tribunal shall decide the main claim petition in accordance with law considering the case of the claimant so also the contentions raised by the otherside, uninfluenced by any observations made by the Tribunal in the impugned order challenged in this appeal so also uninfluenced by any observations made by this Court in this judgment and order, as merits are not examined by this Court. The Tribunal is directed to decide the impugned claim petition in accordance with law and in light of the above observations, preferably within six months from the date of communication of this order.
8. The Tribunal is further directed to invest the amount deposited by the appellant- Insurance Company with the concerned Claim Tribunal in Fixed Deposit in any Nationalised Bank in the name of Nazir of said Tribunal for a period of one year or till the disposal of the main claim petition, whichever, is earlier. In any case, if the claim petition is not disposed of in accordance with law by the concerned Claim Tribunal within said period, the period of FDR shall automatically stand extendable till the final disposal of the main petition.
9. Since the main appeal stands disposed of, the Civil Application for Stay loses its survival value and also, stands disposed of.
(J.C.UPADHYAYA, J) aruna