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2015 DIGILAW 1249 (GUJ)

Heirs Of Decd. Kara Devrakhi v. Hamir Lakha Bhatu

2015-12-04

M.R.SHAH

body2015
JUDGMENT : M.R. Shah, J. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi.), Junagadh (hereinafter referred to as "Tribunal") in Motor Accident Claim Petition No.565/1997 by which while partly allowing the claim petition, the learned Tribunal has exonerated the insured - original opponent No.3 - National Insurance Company Ltd., the original claimants have preferred the present First Appeal. 2. In a vehicular accident which occurred on 28.05.1997 at about 1.00 p.m., the deceased Karabhai who was travelling in carrier rickshaw No.GJ-11U-5841 died. Therefore, the original claimants filed the aforesaid claim petition before the learned Tribunal claiming a total sum of Rs.4 lac towards compensation. It was the case on behalf of the original claimants that the deceased was travelling with his goods in a carrier rickshaw and therefore, the insurance company - insurer was also liable to pay the compensation. However, on appreciation of evidence and considering undisputed facts that the deceased was travelling in a carrier rickshaw and the claimants failed to prove that deceased was travelling with goods for which the carrier rickshaw was hired, by impugned judgment and award the learned Tribunal has exonerated the insurer on the ground that there was a breach of condition of the policy. 2.1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal by which the learned Tribunal has exonerated the insurer, the original claimants have preferred the present First Appeal. 3. Shri Raxit Dholakia, learned advocate appearing on behalf of the original claimants has vehemently submitted that in the facts and circumstances of the case and in absence of any written statement filed by any of the opponents more particularly the insurer, filed in the claim petition disputing their liability, the learned Tribunal was not justified in considering the aforesaid plea and/or the defence of the insurer with respect to liability. Therefore, it is submitted that the learned Tribunal has materially erred in exonerating the insurer. No other submissions have been made. Making above submissions, it is requested to allow the present First Appeal. 4. Present First Appeal is vehemently opposed by Shri Rushang Mehta, learned advocate for Shri D.B. Mehta, learned advocate appearing on behalf of the insurer. Therefore, it is submitted that the learned Tribunal has materially erred in exonerating the insurer. No other submissions have been made. Making above submissions, it is requested to allow the present First Appeal. 4. Present First Appeal is vehemently opposed by Shri Rushang Mehta, learned advocate for Shri D.B. Mehta, learned advocate appearing on behalf of the insurer. It is submitted that as such in the claim petition, may be at the stage of application under section 140 of the Motor Vehicles Act, a specific written statement was filed at Exh.18 disputing the liability of the insurer to pay the compensation. It is submitted that therefore as such it cannot be said that no written statement was filed at all by the insurer disputing their liability. 4.1. It is submitted that in any case the aforesaid being pure question of law and as such in view of the undisputed fact that the deceased was travelling in a carrier rickshaw and the original claimants failed to prove that the deceased was travelling with the goods for which he hired the carrier rickshaw and it was found that there was a breach of condition of policy, no error has been committed by the learned Tribunal in exonerating the insurer. Making above submissions it is requested to dismiss the present First Appeal. 5. Heard learned advocates appearing for respective parties at length. By impugned judgment and award the learned Tribunal has as such exonerated the insurer on the ground that there was a breach of condition of the policy as the deceased was travelling in a carrier rickshaw unauthorisedly. The impugned judgment and award passed by the learned Tribunal is assailed solely and mainly on the ground that in absence of any written statement filed in the claim petition disputing the liability, the learned Tribunal was not justified in considering the defence of the insurance company with respect to its liability. However, it is required to be noted and it is not in dispute that as such the insurer did file the written statement at Exh.18 in the claim petition disputing their liability to pay the compensation, may be at the stage of application under section 140 of the Motor Vehicles Act. Therefore, as such it cannot be said that there was no written statement at all by the insurer disputing their liability. 5.1. Therefore, as such it cannot be said that there was no written statement at all by the insurer disputing their liability. 5.1. In any case in view of the undisputed fact that the deceased was travelling in a carrier rickshaw unauthorisedly and that the original claimants failed to prove that the deceased was travelling with any goods for which he might have hired the carrier rickshaw, the learned Tribunal has not committed any error in holding that the deceased was travelling unauthorisedly in a carrier rickshaw and that there was breach of condition of the policy. In view of the above, as such no error has been committed by the learned Tribunal in exonerating the insurer. 6. In view of the above and for the reasons stated above, present First Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. In the facts and circumstances of the case, there shall be no order as to costs. Appeal dismissed.