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2000 DIGILAW 247 (GUJ)

Virma Naran Ayar v. Mamad Jamal Vandha

2000-03-28

H.H.MEHTA, H.R.SHELAT

body2000
JUDGMENT : H.R. Sheelat, H.H. Mehta, JJ. Against the order dated 30-12-1996 passed by the M.A.C. Tribunal (Main) Kachchh at Bhuj below application (Exh.29) preferred in M.A.C.P. No. 453 of 1995 awarding compensation of Rs.2,04,500 with interest and costs as per Structure Formula under Section 163-A of the M.V. Act, 1988 this appeal is filed by original-opponents. 2. The impugned order is challenged on the grounds that it is contrary to the object of Section 163-A, a result of misconstruction of law and evidence, erroneous assessment of notional income, ignorance of contributory negligence and misconception of law. The appellant also calls in question the liability foisted on it without any just base. The Tribunal has obsessed with largesse overlooked legal brakes and checks on it and transgressed its limits. The claimants have already received the amounts after the order Section 140 of the M.V.Act, 1988 was passed. The Tribunal therefore ought not have passed the impugned order. 3. Needless to say that the present award under Section 163-A although final or ad-hoc under Structure Formula has in this case assumed the characteristic of the interim award since it has been passed below Exh. 29 in the main claim petition No. 453 of 1995 filed under section 166 of M.V. Act and the same is yet to be heard and decided for giving final shape to the claim chalking out rights and obligations of the parties. The present award is therefore subject to the final adjudication and the final award which will ultimately be passed in the main claim petition. Better, it would be, if exertive exercise, at present likely to lead to diminishing value for the order at last will be unproductive and ineffectual owing to its merger into the final order in the application under section 166 of the M.V. Act, is not undertaken; instead that necessary directions protecting interest of all the parties if issued nothing further will remain to be done, and the cause to pursue the appeal admitting the same also will not survive. Accordingly, it is directed as under: 4. The respondents Nos. 1 and 2, original-claimants shall file an undertaking before the Tribunal within 4 weeks from today stating that they will pursue the main claim petition and obtain a judgment and award on merits; and they shall neither permit the same to be dismissed for default of appearance, nor withdraw the same. 5. The respondents Nos. 1 and 2, original-claimants shall file an undertaking before the Tribunal within 4 weeks from today stating that they will pursue the main claim petition and obtain a judgment and award on merits; and they shall neither permit the same to be dismissed for default of appearance, nor withdraw the same. 5. The Insurance Company (Appellant) is directed to deposit the amounts awarded together with interest at the rate awarded and costs in proportion with the Tribunal within the period of four weeks from today less already paid or deposited with this Court or Tribunal. Out of the amount so deposited by the appellant, 70% of the amount shall be invested by the Tribunal in a fixed deposit with any nationalised bank initially for a period of five years and on maturity, the same shall be renewed for a likewise or necessary period in succession till the main petition is finally disposed of and of course subject to final decision in the petition. The respondents Nos. 1 and 2 shall be entitled to withdraw the remaining 30% of the awarded amounts and shall be entitled to interest which may accrue due periodically on the amounts deposited, subject to final decision. 6. Mr. Rajni H. Mehta, the learned advocate for the appellant submits that against the decision of this Court, in the case of R.V.Chudasma v. H.V. Kodala, reported as 1999 (1) GLH 278 , which is the cynosure to the Tribunals, Special Leave Petition (Civil) No. 8742 of 1999 is pending before the Apex Court, which is yet not admitted, but conditional stay against the operation of the judgment is granted. The pendency of the said Special Leave Petition, before the Apex Court, will not, as submitted, have, in our view, any bearing or any impact on this order, as under Section 166 of the Motor Vehicles Act, the Tribunal has to pass final order, if required with necessary modifications. It may also be mentioned that the Supreme Court has, in that S.L.P., stayed the operation of the final order directing the Insurance Company to pay the sum; the operation of law made clear by this Court is not stayed. The same continues to apply to such cases. At the most what can be said is that it is a stay in-personem, qua operative order and not altogether throttling the provision of Section 163-A. 7. The same continues to apply to such cases. At the most what can be said is that it is a stay in-personem, qua operative order and not altogether throttling the provision of Section 163-A. 7. Subject to the aforesaid observations and directions, this appeal is required to be dismissed, and is dismissed accordingly. Rs. 25,000/- are, as submitted, deposited in this Court. The Office is directed to transmit the same to the Tribunal at the earliest. 8. The Tribunal is hereby directed to give priority to the Claim Petition and hearing the same day by day it shall dispose the same of by not later than 31-12-2000. Appeal dismissed.