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Judgment
G.B. Shah, J.—The present appeal has been preferred against an interim order dated 30th December, 2011 passed by the Motor Accident Claims Tribunal (Main) at Bhavnagar in MACP No. 84 of 2011. The order impugned has been passed in an application u/s 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as ''the Act''), whereby the learned Tribunal has awarded Rs. 50,000/- with interest @ 7.5% in view of No Fault Liability clause. After hearing the appellant, by order dated 14th August 2012, the appeal was admitted and process was issued. In response to the process issued by the court, learned Advocate Mr. Rutvij Oza has appeared for respondent No. 1-original claimant.
Heard Mr. Anal Shah, learned Advocate for the appellant and Mr. Rutvij Oza, learned Advocate for respondent No. 1. Both the Learned Advocates for the respective parties have jointly submitted that if the order as requested for by the appellant is passed, then interest of respondent No. 1 and/or respondent No. 2 will not be adversely affected. With such submission, the learned Advocates have requested for taking up the matter for final hearing today. Having regard to the said submission and request of the learned Advocates, the appeal is taken up for final hearing today.
It is the case of the appellant that during the course of hearing of the MACP No. 84 of 2011, the original claimant had submitted an application-Exh. 5 u/s 140 of the Act claiming interim compensation available under the aforesaid provisions of the Act and though the appellant had raised statutory defence, the learned Tribunal has, without deciding the said statutory defence, passed the impugned order dated 30th December 2011 below Exh. 5 application and awarded Rs. 50,000/- towards interim compensation u/s 140 of the Act in favour of the claimant. Learned counsel for the appellant has submitted that the appellant and respondent No. 2-original opponents No. 1 and 2 i.e. owner of the offending vehicle and the insurance company have been jointly and severally held liable for payment of the said interim compensation. Aggrieved by the said decision of the learned Tribunal allowing interim compensation without deciding the statutory defence, the appellant is before this court.
Mr. Shah, learned Advocate for the appellant has submitted that the offending vehicle namely Maruti car bearing No. GJ-4 AM-8087 was insured with the appellant under Private Car Liability Only Policy having policy No. 142700/31/2011/248 which only covers the risk of third party and does not cover the risk of passengers traveling in the private car. It is submitted that the deceased being a passenger of the said vehicle was not a third party and hence the appellant was not liable to pay compensation to the claimants. Mr. Shah has submitted that the said contention is a statutory defence available to the insurance company and it ought to have been decided by the learned Tribunal before passing the interim order.
Mr. Shah, in support of the aforesaid contention, has relied on the judgment of the Apex Court in the matter of Smt. Yallwwa and Others Vs. National Insurance Co. Ltd. and Another, wherein it has been held that it is permissible for the insurance company to raise a defense u/s 149(2) in application u/s 140 of the Act and that when such defense is raised, the Tribunal is required to go into that question. Mr. Shah further submitted that the Tribunal has not gone into the defenses raised by the appellant and has erred in interpreting the ratio laid down by the Hon''ble Supreme Court of India in the matter of Eshwarappa @ Maheshwarappa and Another Vs. C.S. Gurushanthappa and Another,
In light of the judgment of the Hon''ble Apex Court in the matter of Yellawwa and anr. (supra), the legal position with regard to the application and claim u/s 140 of the Act and as regards the requirement of considering the defence and objections of the Insurance Company is settled and the learned Tribunal was required to address the defence raised by the opponent even while deciding the application u/s 140 of the Motor Vehicle Act, however, learned Tribunal has, while passing the impugned order, not properly dealt with the defence and the contentions; raised by the appellant.
The appellant is, in the present case, justified in raising the contention against the impugned award since the defence raised by the appellant has not been addressed. Mr. Oza, learned Advocate for respondent No. 1 has supported the award of the Tribunal but has submitted that all defenses available to the appellant may be raised and be decided in the main application. Mr. Oza submitted that respondent No. 1-original claimant would not have any objection if the insurance company is directed to deposit the amount awarded by the Tribunal and the amount so deposited is invested till the final adjudication of the main claim petition.
Mr. Shah, learned Advocate for the appellant has submitted that the appellant insurance company has deposited a sum of Rs. 50,000/- with interest and proportionate costs in compliance of the order dated 14.8.2012 passed by this Court in Civil Application No. 9195 of 2012.
Having regard to the facts of the case and after examining the award, it emerges that the objection raised by the appellant against the impugned order deserves to be accepted.
If, however, the appeal is retained for final hearing then it will remain pending at least until the main application u/s 166 of the Act is decided or it may result into delaying the proceedings of the application u/s 166 of the Act. Hence on the ground of statutory defence and the contentions raised by the insurance company have not been properly addressed while passing the order in application u/s 140 of the Act though they should have been dealt with by the learned Tribunal in view of the judgment of the Hon''ble Apex Court reported in 2007 ACJ 1934, the appeal deserves to be allowed. Hence in the interest of both the contesting parties the appeal deserves to be disposed at this stage in view of the judgment of the Apex Court without going into the merits of the case. Since the amount as per the impugned order has already been deposited, following directions are given:
(i) The amount of Rs. 50,000/- deposited by the appellant with interest and proportionate costs before the Tribunal shall be invested in fixed deposit.
(ii) The amount so deposited by the appellant shall be invested by the learned Tribunal in a fixed deposit initially for a period of three years. The original FDR(s) shall be retained with the Nazir of the Tribunal.
(iii) The interest accruing on the fixed deposit shall be paid to the claimants every quarter.
(iv) Respondent No. 1 will not be permitted to withdraw the deposited amount or a part thereof and/or to raise any loan or create any charge against the said F.D. In any manner whatsoever.
(v) The interim award shall be subject to the final decision of the main application.
(vi) The learned Tribunal shall decide the main petition u/s 166 of the Act without being influenced by the impugned order passed u/s 140 of the Act and/or this order and particularly the fact that the impugned order has been set aside at this stage.
(viii) Learned Tribunal shall decide the main petition independently on the basis of the evidence which may be brought on record by contesting parties. If ultimately the claim petition is dismissed or if the appellant-insurance company is exonerated from the liability, the amount deposited by the Insurance Company shall be refunded to the appellant with accumulated interest.
With the aforesaid clarifications and directions, the appeal is allowed. There shall be no order as to costs.
This order has been passed without entering into merits of the matter and without prejudice to the rights and contention of both the sides.
In view of the order passed in the First Appeal, no order is required to be passed in the Civil Application and it is accordingly disposed of. Rule is discharged.