1. When the aforementioned appeal came up for admission hearing, Mr. VJ Dave, learned advocate appeared for the respondent nos.1,2 & 4 [original claimants] and Mr. NS Kariel learned advocate appeared for the respondent nos.5 & 6. The respondent no.3 herein came to be deleted by the Claim Tribunal itself vide Order below Exh.23.
2. Mr. Shelat learned advocate for the appellant-Insurance Company, at the outset, submitted that the Tribunal rendered the judgment and award u/s.163(A) of the Motor Vehicles Act and the appellant- Insurance Company, which was opponent no.3 before the Tribunal, raised a specific contention that the deceased was travelling in a goods vehicle as a gratuitous passenger. It is submitted that the Tribunal has not considered the said defence on merits by observing that since the claimants had filed claim petition u/s.163(A) of the M.V. Act, such defence cannot be considered. Mr. Shelat learned advocate for the appellant, therefore, submitted that not only the Tribunal did not consider such important defence, raised by the Insurance Company, but even otherwise, did not appropriately examined and appreciated the oral and documentary evidence, adduced by both the parties in connection with this defence. Mr. Shelat learned advocate, therefore, submits that the appeal deserves consideration.
3. The appeal is ADMITTED.
4. Since learned advocates Mr. Dave and Mr. Kariel appeared for the respondents, with the common request made by Mr. Shelat learned advocate for the appellant and Mr. Dave learned advocate for the respondent nos.1,2 & 4 and by Mr. Kariel learned advocate for the respondent nos.5 & 6, the appeal is taken up for final disposal and is being disposed of by this judgment and order.
5. I have considered the submissions advanced on behalf of both the sides so also I have perused the impugned judgment and award rendered by the Tribunal. There is no dispute that the appellant- original opponent no.3-Insurance Company raised a specific defence that at the time of accident, the deceased was travelling as a gratuitous passenger in a goods vehicle. It appears that in the judgment and award the Tribunal did not discuss this aspect of the matter on merits, for the simple reason that according to the Claim Tribunal, when the main Claim Petition was u/s.163(A) of the M.V. Act, such defence pales into insignificant and the appropriate award can be passed fastening the liability of the Insurance Company. Under such circumstances, Mr. Shelat learned advocate for the appellant- Insurance Company, at the outset, submitted that by allowing this appeal, the impugned judgment and award rendered by the Tribunal, may be set aside. Alternatively, it is suggested that since the Tribunal has not examined this defence on merits, atleast, the impugned judgment and award deserves to be set aside and the matter may be remanded to the Tribunal to decide afresh in accordance with law. However, Mr. Dave learned advocate for the respondent nos.1,2 & 4- original claimants vehemently opposed this submission and submitted that no error appears to have committed by the Tribunal and the appeal may be dismissed. However, Mr. Dave learned advocate submitted that it is true that in the impugned judgment and award, the Tribunal did not discuss this contention raised by the Insurance Company on merits, but the Insurance Company has failed to establish such defence.
6. Be that as it may, but the fact remains that such important contentions raised by the appellant- Insurance Company, has not been discussed by the concerned Tribunal on merits. In above view of the matter, this Court is of the opinion that considering the impugned judgment and award rendered by the Tribunal and considering the case of 'National Insurance Co. Ltd Vs. Sinitha' reported in (2012) 2 SCC 356 and more particularly, the observations made by the Hon'ble Apex Court in Para-33 of the said decision, this Court is of the opinion that the instant appeal deserves to be allowed and while setting aside the impugned judgment and award rendered by the Tribunal, the matter is required to be remanded to the concerned Tribunal to decide it afresh in accordance with law on merits. It is submitted that at the time of filing of this appeal, the appellant- Insurance Company has deposited the statutory amount being Rs.25,000/- with the concerned Tribunal.
7. For the foregoing reasons, the appeal is partly allowed and the impugned judgment and award dated 03.12.2011 passed by learned M.A.C.T.(Aux.), Patan in M.A.C.P.No.43/2005 is set aside and M.A.C.P.No.43/2005 is ordered to be remanded to the concerned Claim Tribunal in the light of the observations made herein-above in this judgment and the Tribunal shall decide the said claim petition afresh in accordance with law and considering all the statutory defence, that may be raised by the Insurance Company in the aforementioned claim petition and at the same time, shall also discuss and decide the case of the claimants. It is hereby specifically observed that the rights and contentions of both the sides, are hereby kept open. It is further clarified that in the instant judgment and order, no merits are examined. Considering the facts and circumstances of the case, the Tribunal shall decide the claim petition on merits in accordance with law at the earliest, preferably, within three months from the date of receipt of communication of this order.
8. So far as the amount of Rs.25,000/- which has been deposited by the appellant-Insurance Company with the concerned Claim Tribunal, the Claim Tribunal shall invest the said amount in Fixed Deposit in a Nationalised Bank, in the name of Nazir of the Tribunal, for a period of Six months or till the final disposal of the aforementioned claim petition, whichever, period is earlier. The deposit shall be by way of cumulative deposit. The disbursement of the said amount shall depend upon the final outcome, which shall be arrived at by the Tribunal.
9. Since the appeal is partly allowed, the Civil Application for Stay loses it survival value and stands disposed of accordingly.
abv/g (J.C.UPADHYAYA, J)