1. Mr.Shah, learned advocate appears for the respondent nos.1, 2 & 3, who are original claimants. Ms.Niyati Juthani, learned advocate for Mr.Meena, learned advocate for the appellant, so also Mr.Shah, learned advocate for the respondent nos.1, 2 & 3, request that considering the nature of the appeal, the entire appeal may be heard and may be disposed of. They also state that the presence of respondent nos.4, 5 & 6 may not be required, as respondent no.6-Insurance Company came to be exonerated and respondent nos.4 & 5 are drivers.
2. Since both the learned counsels, requested for final hearing of the appeal and considering the nature of the appeal, the appeal is heard today and is being disposed of today by this judgment.
3. The challenge in this appeal is to impugned order dated 05.01.2010 passed by the learned Motor Accident Claim Tribunal (Main), Kutch at Bhuj, below application Exh:6 in M.A.C.P. No.444 of 2009, whereby the Tribunal allowed the said application, which came to be filed by the respondent nos.1, 2 & 3 herein, who are the original claimants, under Section 140 of the Motor Vehicles Act, and directed the appellant herein, so also respondent nos.4 & 5 herein (original Opponent Nos.1, 2 & 3) to pay Rs.50,000/- by way of interim compensation under the head of no fault liability under Section 140 of the Motor Vehicles Act with interest at the rate of 9% per-annum from the date of filing of the claim petition till realization with proportionate costs thereon. The original opponent no.3-Insurance Company has challenged the said order by preferring this appeal.
4. Ms.Niyati Juthani, learned advocate for Mr.Meena, learned advocate for the appellant, at the outset, submitted that, a basic contention was raised before the Tribunal regarding defective driving licence of the driver of the vehicle, but in the impugned order, the claim Tribunal did not deal with the said aspect of the matter and passed the impugned order. It is therefore, submitted that, since a basic contention raised by the appellant-Insurance company touching the issue of liability of the Insurance Company has not been dealt with in the impugned order passed by the Tribunal, the appeal deserves to be allowed. Ms.Niyati Juthani, learned advocate for the appellant submitted that, in view of the ratio laid down by this Court in United India Insurance Co. Ltd. Vs. Sidikbhai Ukabhai Solanki & Anr. reported in 2012(2) GLH 465, the Insurance Company was constrained to file such appeal otherwise the observation made by this Court in said decision shall come in the way of Insurance Company at the time of final disposal of the main claim petition. Ms.Niyati Juthani, learned advocate for the appellant, submitted that since the original claim petition is of the year 2009, it would not be in the interest of justice for both the sides, if by allowing this appeal, the matter is remanded to the Tribunal for direction to decide the application Exh:6 filed under Section 140 of the Motor Vehicles Act afresh and that exercise would cause more delay to old matter and instead of that, Ms.Niyati Juthani, requested that keeping open rights and contentions of both the sides, the concerned claim Tribunal may be directed to expedite the trial of the main claim petition and may be directed to dispose of the same at the earliest, in accordance with law, dealing with all the grounds raised by the appellant-Insurance Company in this matter. Ms.Niyati Juthani, learned advocate for the appellant, upon instruction, submitted that the appellant–Insurance Company has deposited the awarded amount with the concerned claim Tribunal and appropriate order qua the deposited amount may also be passed.
5. Mr.Shah, learned advocate for the respondent nos.1, 2 & 3-original claimants opposed this appeal and submitted that, it is true that in the impugned order, concerned claim Tribunal has not expressly dealt with the contentions raised by the appellant-Insurance Company regarding alleged defective driving licence of the driver of the vehicle, but the respondent nos.1, 2 & 3 – original claimants have produced sufficient prima facie proof on record before the Tribunal to reply to this contention, and therefore, the appeal may be dismissed.
6. I have taken into consideration the impugned order passed by the Tribunal under Section 140 of the Motor Vehicles Act. Considering the submissions advanced, so also considering the grounds raised in this appeal, it transpires that, despite the fact that the contention was raised on behalf of the appellant before the concerned claim Tribunal regarding defective driving licence of the driver of the vehicle, it appears that the said aspect has not been dealt with by the concerned claim Tribunal. In Para-5 in the impugned order, the Tribunal considered the case of Yallawa & Ors. Vs. National Insurance Co. Ltd., reported in (2007) ACC 269 (SC), wherein the Hon'ble Apex Court observed that even at this stage, the Insurance Company is permitted to take defence, which are available under Section 149(2) of the Motor Vehicles Act. Under such circumstances, considering the facts and circumstances of the case and the submissions advanced, the appeal requires to be partly allowed.
7. However, the original claim petition is of the year 2009. This Court is of the opinion that by partly allowing the appeal and remanding the matter back to the Tribunal with direction to decide afresh application Exh:6 filed by the respondent nos.1, 2 & 3 herein–original claimants under Section 140 of the Motor Vehicles Act, it would cause delay in the otherwise old matter. Instead of that as agreed, it would be in the interest of justice for both the sides, if the concerned claim Tribunal is directed to try and decide the main claim petition itself at the earliest and within stipulated time, which this Court will fix and at that time all the rights and contentions raised by both the sides shall be kept open.
8. For the foregoing reasons, the appeal is partly allowed. The learned Motor Accident Claim tribunal (Main), Kutch at Bhuj, is directed to try and decide the M.A.C.P No.444 of 2009, at the earliest preferably within six months from the date of communication of this order. The Tribunal shall decide the said claim petition in accordance with law and all the rights and contentions raised by both the sides shall be kept open and Tribunal shall decide the main claim petition in accordance with law on the basis of evidence that may be led before it. At the time of final disposal of the main claim petition, a case put up by the original claimants and the contentions that may be raised by other side shall be taken into consideration by the claim Tribunal and shall dispose of the matter in accordance with law.
9. Since the awarded amount in terms of the impugned order passed by the Tribunal under Section 140 of the Motor Vehicles Act, is lying with the
-original claimants, the said amount has not been withdrawn, the Tribunal is directed to invest the deposited amount in F.D.R in any nationalized bank in the joint names of respondent nos.1, 2 & 3 for a period of one year or till the final disposal of the main claim petition. However, the respondent nos.1, 2 & 3 -original claimants shall be entitled to get periodical interest thereon.
10. Since the appeal is disposed of today. Civil Application for stay loses its survival value and also stands disposed of.
11. Registry to list First Appeal No.3578 of 2011 on 23.10.2012 as requested by the learned advocates representing both the parties.
(J.C.UPADHYAYA,J.) Suchit*