United India Insurance Company Ltd vs Bachitarshing Ujagarshing Jasal

The present first appeal under Section 173 of the Motor Vehicles Act,1973 is filed by the appellant - Insurance Co. against the judgment and award, dated 29.3.2011, passed by the MAC Tribunal (Aux.), Fast Track Court, Bhavnagar in MAC Petition No.713 of 2001.

It is the case of the appellant that pursuant to the vehicular accident which took place on 6.3.2001 at about 8.00 p.m. on the way between Babra to Vasavad, District - Amreli, a claim petition was submitted by the claimant for an amount of Rs.11,50,466/­ towards the compensation with interest and cost, on account of permanent partial disability caused to him in such accident. The said claim petition came to be decided by the claims Tribunal vide judgment and order dated 29.3.2011 in which the claims Tribunal passed the following order :

"1. The claim petition presented under section 166 of the Motor Vehicles Act is hereby partly allowed with proportionate cost.

All the opponents do pay jointly and/or severally a sum of Rs.4,36,480/­ (Rupees Four Lac Thirty Six Thousand Four Hundred Eighty only) as compensation to applicant together with interest thereon at the rate of 7.5% p.a. From the date of the petition till realization with proportionate costs.

All the opponents are hereby ordered to deposit the amount of compensation along with interest and costs etc. in the office of the Tribunal within thirty days from the date of this judgment.

On depositing the aforesaid amount, deficit court fees, if any and interim compensation, if paid, be deducted.

Thereafter, from the remaining amount 70% of the amount be invested in the fixed deposit in the name of applicant in any nationalized bank, for a period of 5 years with a direction to the bank not to float any loan on the amount invested in the fixed deposit without prior permission of this Tribunal. However, the applicant shall be entitled to withdraw the periodical interest accruing on the fixed deposit.

The rest of the amount be paid to the applicant by A/c. Payee cheque after due verification.

The concerned bank is also directed to release the said amount to applicant, invested in fixed deposit on the date of its maturity, without requiring any further orders from this Tribunal.

The award be drawn accordingly."

This appeal when taken up for hearing, it has been vehemently contended by Mr.Mitul J. Shelat, learned advocate for the Insurance Co., that the vehicle in question was a mobile crane which was holding 'Act Policy', having capacity of one person only. It was specifically restricted the liability in the policy itself that same would not cover the risk of person travelling on account of this peculiarity of vehicle. Still, however, the Tribunal has not considered the same minutely, though the said policy is part of the record of the claim proceedings. It has also been submitted that a specific contention has been raised in the written statement which has been filed at Exh.89 in the claims Tribunal, that appellant - Insurance is not having any statutory liability. It has been submitted specifically that there is no premium accepted by the Insurance Co. nor paid by the owner of the vehicle in question and that of a cleaner and undisputedly, the claimant was a cleaner which was admitted during the course of his testimony and, therefore, in view of the contents of the policy, in view of the nature of vehicle, there is no statutory liability occurred of the Insurance Co. and by citing this, it has been specifically contended that the claim Tribunal has not any attention to such kind of specific issue, though canvassed before it and, therefore, has requested that this issue about liability of appellant - Insurance company has not been specifically dealt with in the context of case which has been put up by the Insurance Co.

3.1 By referring to Para.4 and 6 of the written submissions at Exh.89 and by citing the reference of Para.10, learned advocate for the appellant - Insurance Co. has agitated that ultimately on the issue of liability, there is no specific cogent finding arrived at and, therefore, on the issue of liability of Insurance Co., since the claims Tribunal has not assigned any reason nor has considered and dealt with the submissions, the matter be sent back to the claims Tribunal for this limited purpose of examining the statutory liability aspect of the appellant - Insurance Co.

3.2 So far as the quantum is concerned, learned advocate for the appellant - Insurance Co. has submitted that if ultimately liability is crystallized of the Insurance Co. or not, the quantum is not being agitated. Hence, for this limited purpose of statutory liability with a specific direction, the proceedings may be sent back to the claims Tribunal concerned.

To meet with the stand taken by learned advocate for the appellant - Insurance Co., Mr.Nirzar Desai, learned advocate for the respondent No.1, has tried to submit that the claims Tribunal has passed a reasoned order and has also submitted that in view of the fact that undisputedly, the claimant had suffered the injuries on account of he being on the vehicle which is insured by the appellant - Insurance Co., by raising a technical plea the Insurance Co. cannot shirk from its responsibility. It has been submitted that even if ultimately the Insurance Co. is not responsible then also, the amount which has been determined by the claims Tribunal to be paid to the claimant and the Insurance Co. can reimburse the same through the original owner of the vehicle and, therefore, the judgment and award is passed in a just and proper manner. However, learned advocate for the respondent No.1 could not withstand to the submission made by learned advocate for the appellant - Insurance Co. about specific finding not being in the order, though the policy was a part of the record and further has not been able to withstand to the request for seeking remand on this limited issue of statutory liability to be decided. As a result of this, learned advocate has candidly submitted that if with a time bound schedule by retaining the amount which has been deposited in as it is manner, if direction is given to give a fresh consideration, there shall be no objection but, has submitted that some time schedule be prescribed. As a result of this, the matter is left to the discretion of the Court and with broad consensus, has submitted to pass suitable order, in the interest of justice.

Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it clearly appears from Para.10 of the impugned order passed by the Tribunal that insurance policy at Exh.89 was very much a part of the record. There was a written argument also submitted at Exh.83 in which the details about the policy and the payment of premium has been reflected. So much so that Exh.89 which is a written statement has clearly pointed out the premium amount and has ultimately agitated in Para.4, 5 and 6 about statutory liability of the Insurance Co. Now, against this specific contentions which have been raised, a perusal of the impugned order would suggest that there is no specific conclusion arrived at nor any issue is decided. Hence, the claims Tribunal has not dealt with this material aspect. Resultantly, non­ dealing with specific contention would lead to a situation of remand for fresh consideration and, therefore, for this limited issue of deciding statutory liability of the Insurance Co., the matter deserves to be remanded back. The Court while coming to this conclusion is mindful of the recent decision of the Apex Court in case of Birwati Chaudhary & Ors. v. State of Haryana & Ors., reported in (2018) 9 SCC 458. The catch­note of the said decision since relevant are reproduced hereinafter :

"Civil Procedure Code,1908 - Or.39 Rr.1 & 2 - Interim stay - Grant or refusal - Absence of any justifiable reason in support of the order passed - Consequences thereof - Remand of matter for decision afresh."

5.1 Of­course, in this judgment the Court was dealing with a question of interim relief but, the analogy about non­assigning of cogent reason to support the order is a principle which is attracted here in the case on hand.

In view of the aforesaid situation, the Court deems it proper to dispose of present first appeal with following directions :

(1) The impugned award dated 29.3.2011 is quashed and set aside insofar as it has not decided the statutory liability of appellant - Insurance Co. and, therefore, without disturbing the finding on quantum of compensation, the claims Tribunal is directed to reconsider the issue of statutory liability of the appellant - Insurance Co. in the context of specific contentions which have been raised in the written statement and from the insurance policy which has been submitted on record and shall pass a reasoned order, in accordance with law.

(2) Since the matter is remanded back for this limited purpose of deciding the issue of statutory liability of the Insurance Co., without disturbing other part of the judgment and award, the claims Tribunal is directed to decide the same within a period of 4 months from the date of receipt of writ of this Court, after granting appropriate opportunity to both the sides.

(3) It is made clear that since the impugned judgment and award is not disturbed by the Court insofar as it relates to quantum of compensation, the deposit which is lying pursuant to the order dated 30.8.2011, the same is not to be disturbed till the disposal of the aforesaid issue by the claims Tribunal.

With these observations and directions, the present first appeal stands partly allowed.