1 Mr. Mehta, Ld. Advocate for the appellant, so also Ms. Nisha, Ld. Advocate for Mr. Rupera, Ld. Advocate for the respondent nos.
1 and 2 submitted that considering the nature of the appeal, the appeal may be heard and disposed of. In above view of the matter, the entire appeal is heard today and is being disposed of by this judgment.
2 The instant appeal is filed by the appellant – Insurance Company, who was opponent no. 2 in the Claim Petition before the Tribunal, challenging the impugned order dated 29/12/2011 passed by the Ld. M.A.C. Tribunal [Main] Surendranagar, below application exh. 5 in M.A.C. Petition No. 267/2010. The respondent no. 1 herein, who was original claimant, preferred said application exh. 5 under section 140 of the Motor Vehicles Act [MV Act] claiming interim compensation under 'no fault liability' and the Tribunal, vide impugned order dated 29/12/2011, allowed said application and directed the appellant, so also the respondent no. 2 herein, to pay Rs.25,000/- with interest @ 9% p.a., from the date of filing of the application till realization to the respondent no. 1 original claimant. Mr. Mehta, Ld. Advocate for the appellant, at the outset, submitted that a technical contention was raised before the Tribunal to the effect that the injured was driving the scooter and the owner was pillion rider and they both are father and son. That the injured cannot be considered to be the owner-cum- driver and, therefore, his risk cannot be said to have been covered under the policy. Mr. Mehta submitted that despite the fact that such basic contention regarding liability of the appellant – Insurance Company was raised, the Tribunal did not deal with the said aspect on merits and allowed the said application. Mr. Mehta, therefore, submitted that the appeal deserves consideration.
3 Mr. Mehta, Ld. Advocate for the appellant submitted that considering the fact that the original claim petition is of the year 2010, it may not be in the interest for both the sides, if by allowing this appeal, the application filed by the claimant under section 140 of the MV Act is remanded to the Tribunal for afresh decision because that would cause more delay to the otherwise old proceedings. Instead of that, Mr. Mehta, Ld. Advocate for the appellant, submitted that the Tribunal may be directed to dispose of the main claim petition expeditiously keeping open rights and contentions of both the sides. Mr. Mehta submitted that the appellant was constrained to file this appeal in view of the decision of this Court rendered in the case of United India Insurance Co. Ltd. v/s. Siddikbhai Ukabhai Solanki reported in 2012 [2] G.L.H. 465, otherwise at the fag end of the trial in the main claim petition, it would have become difficult for the appellant – Insurance Company to raise such technical defence.
4 Mr. Parikh, Ld. Advocate for the respondents, at the outset, opposed this appeal and submitted that there is no force in the so called technical ground raised by the appellant – Insurance Company and the respondent no. 1 original claimant has produced sufficient prima- facie evidence on record to controvert the ground raised by the appellant and, therefore, it is submitted that the appeal may be dismissed.
5 I have considered the submissions advanced on behalf of both the sides, so also I have taken into consideration the impugned order passed by the Tribunal. The bare perusal of the impugned order would suggest that the appellant – Insurance Company has raised the aforementioned technical ground before the Tribunal, but it appears that the said ground has not been dealt with on merits by the Tribunal. Under such circumstances, this Court is of the opinion that the appeal deserves consideration and deserves to be allowed. Usually when such appeal is allowed and the impugned order passed by the Tribunal under section 140 of the MV Act is set aside, the matter deserves to be remanded to the Tribunal to decide said application afresh. However, considering the peculiar facts of this case, it transpires that the original claim petition is of the year 2010 and, therefore, if by allowing this appeal, the Tribunal is directed to decide the application filed by the claimant under section 140 of the MV Act afresh, that would cause more delay to the otherwise old proceedings. Therefore, as agreed by the learned advocates for both the sides, it would be in the interest of justice, if by allowing this appeal, the Tribunal is directed to decide the main claim petition expeditiously, keeping open rights and contentions of both the sides.
6 Mr. Mehta, Ld. Advocate for the appellant submitted that pursuant to the order dated 27/6/2012, the appellant – Insurance Company has deposited the awarded amount with the concerned Claim Tribunal and appropriate direction may be issued to the Tribunal in that connection.
7 For the foregoing reasons, the appeal is allowed and Ld. M.A.C. Tribunal [Main], Surendranagar is directed to expedite the trial of M.A.C. Petition No. 267/2010 and to dispose of the same as early as possible, preferably within six months from the date of communication of this order. The rights and contentions of both the sides are ordered to be kept open and the Tribunal shall decide the said claim petition on the basis of the evidence that shall be adduced before it as well as shall take into consideration the case pleaded by the claimant, so also contentions raised by the otherside. It is hereby made clear that in the instant judgment, no merits are examined.
8 The Tribunal is directed to invest the awarded amount deposited by the appellant – Insurance Company in F.D.R in any nationalized bank in the name of the respondent no. 1 – claimant for the period of one year or till the disposal of the claim petition, whichever is earlier. However, the respondent no. 1 claimant shall be entitled to get periodical interest on the F.D.R. The original F.D.R shall be retained in the custody of Nazir of the Tribunal.
9 Since the appeal stands disposed of, the Civil Application for stay loses its survival value and also stands disposed of accordingly.
( J.C. UPADHYAYA, J.) * Pansala.