[1] By this appeal, the appellant Insurance Company has challenged the order dated 29.09.2012 passed by the learned Motor Accident Claims Tribunal (Main), Rajkot below Exh.7 in M.A.C.Petition No.1420 of 2008.
[2] It is submitted by learned advocate for the appellant that insurance company has raised contention in reference to breach of condition of policy as well as statutory rights available to the insurance company, while deciding application under section 140 of the M.V.Act. In view of decision of this Court in the case of United India Insurance Co. Ltd. v/s. Sidikbhai Ukabhai Solanki and Anr. reported in 2012 (2)GLH 465, the appellant Insurance company has preferred this appeal. Thus, present no fault liability award would be treated as constructive resjudicata while deciding claim petition under section 166 of the M.V.Act.
[3] Considering the submission of learned advocate for the appellant herein, in the opinion of this Court, if necessary direction is given to the learned Tribunal not to treat the order passed by the learned Tribunal below application under Sec.140 as constructive resjudicata nor will it come in any way while deciding main claim petition filed under Sec.166 of the Motor Vehicles Act, then it will meet the ends of justice.
[4] In view of above, order dated 29.09.2012 passed by the learned Motor Accident Claims Tribunal (Main), Rajkot below Exh.7 in M.A.C.Petition No.1420 of 2008 will not be treated as constructive resjudicata and will not come in any way while deciding claim petition filed under section 166 of the M.V.Act and learned Tribunal will decide the main claim petition on merits without being influenced by the order passed by the learned Tribunal below application under section 140 of the M.V.Act. Insurance Company is at liberty to raise all the contentions which are available under the law before the learned Tribunal.
[5] In pursuance of the order passed by the learned Tribunal below application under section 140 of the M.V.Act, if any amount is deposited by the Insurance Company, then, the learned Tribunal will pass necessary orders under the provisions of law to disburse and invest in cumulative deposit. The claimants will file Undertaking on affidavit that claimants will not withdraw or permit to dismiss for default or non prosecution of main petition and will obtain judgment on merits.
[6] In view of above, the first appeal is disposed of. No order in Civil Application and same is disposed of.
(M.D.SHAH, J.) Srilatha Page 3 of 3