1. This appeal is filed by the appellant- Insurance Company [original opponent no.3 before the Tribunal] challenging the order dated 17/03/2012 passed by learned MACT (Aux.), Sabarkantha Camp at Ider below application Exh.5 in MACP No.740 of 2010.
The Tribunal pursuant to the impugned order allowed said application Exh.5 filed by the respondent no.1 herein [original claimant] u/s.140 of the Motor Vehicles Act, seeking interim compensation under 'No Fault Liability'. The Tribunal pursuant to the impugned order, allowed said application and directed the appellant herein [original opponent no.3]
way of interim compensation to respondent no.1 [original claimant] herein with interest at the rate of 8% per annum from the date of filing of the original claim petition till the deposit.
2. Considering the nature of appeal, both the learned advocates viz. Mr. Thomas learned advocate for the appellant so also Mr. Goswami learned advocate for the respondent no.1 [original claimant] submitted that the main appeal may be heard and may be disposed of. In light of such contention, the instant appeal is heard today and is being disposed of by this judgment.
3. Mr. Thomas learned advocate for the appellant submitted that before the Claim Tribunal, at the time of argument, the basic contention of law was raised regarding the liability of the Insurance Company to pay the amount of interim compensation, as the deceased was travelling as a paid passenger in the vehicle. It is submitted that despite the fact that in Para-3 in impugned order such statement made on behalf of the Insurance Company, has been recorded by the Tribunal, but the Tribunal did not deal with this aspect on merits. Mr. Thomas learned advocate for the appellant-applicant, therefore, submitted that the instant appeal deserves consideration and may be allowed. However, Mr. Thomas learned advocate
[original claimant] u/s.140 of the Motor Vehicles Act afresh, that would not be in the interest of justice for both the sides, as thereby the old matter would be more delayed. Instead of that, Mr. Thomas learned advocate for the appellant-Insurance Company submitted that if the Tribunal is directed to dispose of the original Claim Petition viz. MACP No.740/2010 in accordance with law keeping open the rights and contentions of both the parties, that would served the ends of justice.
3.1 Mr. Thomas learned advocate for the appellant submitted that pursuant to the order dated 06/08/2012, the appellant-Insurance Company has deposited the awarded amount with interest with the concerned Claim Tribunal and therefore, appropriate directions in this respect, may be issued to the concerned Claim Tribunal.
4. Mr. Goswami learned advocate for the respondent no.1 [original claimant] submitted that there is no dispute that such statutory defence was raised by the appellant-Insurance Company before the concerned Claim Tribunal and there is also no dispute that such contention has not been dealt with on merits in the impugned order passed by the Tribunal, but the respondent no.1 [original claimant] has produced several prima-facie evidence on record to controvert such defence raised by the appellant-Insurance Company.
5. I have taken into consideration the submissions advanced on behalf of both the sides. I have also taken into consideration the impugned order passed by the Tribunal. Considering the impugned order, it clearly transpires that the appellant- Insurance Company raised statutory defence of its liability. It transpires that according to the Insurance Company, the deceased was travelling as a paid passenger in the vehicle. Considering the impugned order passed by the Tribunal, it transpires that though the Tribunal referred argument advanced on behalf of appellant in the impugned order, but the said contention, raised by the appellant-Insurance Company, has not been dealt with on merits. Under such circumstances, this Court is of the opinion that the instant appeal deserves to be allowed. Mr. Thomas learned advocate for the appellant-Insurance Company rightly submitted that the appellant-Insurance Company was constrained to file this appeal in view of the observation made by this Court in the case of 'United India Insurance Company Ltd. Vs. Sidikbhai Ukabhai Solanki' reported in 2012 (2) GLH 465. Mr. Thomas learned advocate for the appellant submitted that in above view of the matter, if this appeal is not filed, then, in future it would have become difficult for the appellant-Insurance Company to raise such contention before the Tribunal in the main Claim Petition.
6. In above view of the matter, since the instant appeal deserves to be allowed, the usual order which may be passed, would be to remand the matter before the concerned Claim Tribunal and to direct the concerned Claim Tribunal to decide afresh the application filed by the claimant u/s.140 of the Motor Vehicles Act. However, in the instant case, the original Claim Petition is of the year 2010 and therefore, if the Tribunal is directed to decide afresh the application u/s.140 of the Motor Vehicles Act, that would cause more delay to otherwise old Claim Petition. Instead of that, as agreed by learned advocates representing both the parties, the Tribunal should be directed to expedite the trial of MACP No.740 of 2010 and to dispose of said Claim Petition expeditiously, keeping open the rights and contentions of both the parties. Necessary further direction is also required to be issued to the Tribunal regarding the amount deposited by the appellant.
7. For the foregoing reasons, this appeal is allowed. The learned Tribunal is directed to expedite the trial of MACP No.740 of 2010 and to dispose of said Claim Petition in accordance with law and on the basis of the evidence, that shall be adduced by parties before the Tribunal as early as possible preferably within six months from the date of communication of this order. The rights and contentions of both the parties are kept open and at the time of final disposal of the main Claim Petition, the Tribunal shall take into consideration the case of the claimant so also the defence raised by the otherside. It is hereby made clear that no merits are touched in this judgment.
8. The Tribunal is directed to invest in the FDR in a Nationalised Bank the entire amount deposited by the appellant-Insurance Company pursuant to the earlier order dated 06/08/2012. The FDR shall be in the name of respondent no.1 [original claimant] and the same shall be for the period of one year or till the main Claim Petition is disposed of, whichever, is earlier. However, the respondent no.1 [original claimant] shall be entitled to get periodical interest thereon at the interval of every quarter. The ultimate disbursement of the said amount shall be subject to the final outcome, that shall be arrived at by the concerned Claim Tribunal. Since the instant appeal accordingly stands disposed of, the Civil Application for stay loses its survival value and also, stands disposed of.
aruna (J.C.UPADHYAYA, J)