JUDGMENT : JUDGMENT IN FIRST APPEALS NO.1927/2021, 1928/2021, 1929/2021, 1930/2021 AND 1931/2021 1. Being aggrieved by the order below Exhibit 4 passed by the learned Motor Accidents Claims Tribunal (Main), Banaskantha District, Palanpur dated 26.02.2021 in M.A.C.P. Nos.109 of 2018, 110 of 2018, 111 of 2018, 118 of 2018 and 119 of 2018, the present First Appeals fall for consideration and are disposed of by this common judgment, since the issues raised are similar in all the matters. 2. Learned Advocate for the appellant/s Mr. Vibhuti Nanavati submitted that the challenge in all the Appeals is to the observations of the learned Motor Accidents Claims Tribunal (Main), Banaskantha District, Palanpur in order below Exhibit 4 under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to in short as the ‘M.V. Act’) where the learned Tribunal relied upon the judgment of the Sessions Court in Sessions Case No.28/2018 dated 30.01.2021 and the oral evidence of Dr. Ramilaben Chelabhai Chaudhary recorded at Exhibit 54 on 21.06.2019. It is submitted that the learned Tribunal ought not to have considered the oral evidence of Dr. Ramilaben Chelabhai Chaudhary in an order passed under Section 140 of the M.V. Act and instead should have relied upon the contents of the First Information Report whereby it was stated that the Driver of Tanker bearing Registration No.GJ-12-AY-0358 was under the influence of alcohol, the driver was driving the Vehicle in a rash and negligent manner and in excessive speed, and owing to his negligence, the driver lost his control over the Tanker at the cross road while taking a turn and thereafter, dashed with the persons who were standing in the parking area of a roadside restaurant-Hotel Savera, thus leading to the death of the deceased person/s. 3. It is further submitted that the very observations of the learned Tribunal about the evidence in Sessions Court and the judgment passed by the Court would ultimately affect the trial of M.A.C.P. and the Insurance Company would be estopped from adducing further evidence during the trial in connection to the defence so raised in written statement and further by way of additional written statement filed in the record of the Tribunal. 4. Countering the above argument, learned Advocate Mr. Himansu M. Padhya appearing for the respective respondents submitted that this is the 2nd round of litigation before this Court. 4. Countering the above argument, learned Advocate Mr. Himansu M. Padhya appearing for the respective respondents submitted that this is the 2nd round of litigation before this Court. The Insurance Company had earlier challenged the order passed under Section 140 of the M.V. Act by way of filing First Appeal No.1271 of 2020 with Civil Application (for Stay) No.1 of 2020 in First Appeal No.1271 of 2020 with First Appeal No.1327 of 2020 with Civil Application (For Stay) No.1 of 2020 in First Appeal No.1327 of 2020 with First Appeal No.1326 of 2020 with Civil Application (For Stay) No.1 of 2020 in First Appeal No.1326 of 2020 with First Appeal No.1277 of 2020 with Civil Application (for Stay) No.1 of 2020 in First Appeal No.1277 of 2020 with First Appeal No.1328 of 2020 with Civil Application (For Stay) No.1 of 2020 in First Appeal No.1328 of 2020. The matters came to be remanded and during the course of arguments, the Tribunal requested the Insurance Company to point out from their reply at Exhibit 17 dated 21.01.2017 whether any defence was raised with respect to the plea that the driver of the Tanker bearing Registration No.GJ-12-AY-0358 had consumed liquor or some other intoxication. Learned Advocate Mr. Padhya submitted that the Advocate of Insurance Company had candidly answered that no such defence was raised in the reply. It is submitted that since the matter was remanded, the learned Tribunal wanted to verify this fact and thus had called for records of the Sessions Case No.29/2018, which was tried by the learned 7th Additional District and Sessions Court, the learned Tribunal was pleased to observe the deposition of Dr. Ramilaben Chelabhai Chaudhary at Exhibit 54 to consider the fact as to whether the Driver was under the impression of any intoxication. It is submitted that it was bounded duty of the learned Tribunal to call for the records since no plea was raised by the Insurance Company in the written statement. 5. Heard learned Advocates appearing for the respective parties and perused the records of the case. The date of accident is 12.02.2018. It would be relevant to record the provisions under Section 140 of the Motor Vehicles Act, which stood prior to Motor Vehicle (Amendment) Act, 2019, which is as under :- “140. Liability to pay compensation in certain cases on the principle of no fault. The date of accident is 12.02.2018. It would be relevant to record the provisions under Section 140 of the Motor Vehicles Act, which stood prior to Motor Vehicle (Amendment) Act, 2019, which is as under :- “140. Liability to pay compensation in certain cases on the principle of no fault. (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force : Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.” 6. Thus, considering the relevant provision of Section 140 of the Motor Vehicles Act as it stood prior to the Amendment Act, 2019, the Division Bench of this Court in the case of New India Assurance Co. Ltd. v. Kalabhai Maganbhai Koli reported in 2016 (1) G.L.H. 68 has elaborated about the aspects which are required to be considered by the Tribunal during the proceedings under Section 140 of the M.V. Act. The Division Bench had observed that during the proceedings under Section 140 of the Act, the Claims Tribunal can verify only three aspects (i) motor vehicle was used in accident, (ii) permanent disability or death is caused, (iii) claim is against the owner and the insurer. It was further held that if the Insurance Company has not raised defenses on these aspects or they are decided against the Insurance Company, the same would bind it at a later stage of proceedings under Section 166 of the Motor Vehicle Act. It was further held that no other defenses including those under Section 149(2) of the M.V. Act would be available to the Insurance Company at the stage of proceedings under Section 140 of the M.V. Act. 7. Thus keeping in view the observations made by the Division Bench in the case of Kalabhai Maganbhai Koli (supra), the Insurance Company would be permitted to raise dispute on the very aspect of the motor vehicle involved in the accident, whether the said accident resulted in permanent disablement or death, and that claim is made against the owner and the insurer of the motor vehicle involved in the accident. Apart from these aspects, no other inquiry is envisaged or permissible. If the Insurance Company has raised dispute with any of these aspects, the Claims Tribunal would give its findings through a summary inquiry. If the Insurance Company fails to raise a contention on this aspect or if it is decided against the Insurance Company by the Claims Tribunal, the same would bind the Insurance Company under Section 166 of the Motor Vehicles Act. 8. In view of the observations made by the Division Bench, the Insurance Company would not be permitted to raise defence including those under Section 149(2) of the M.V. Act, at the stage of proceedings under Section 140 of the Act. The Division Bench had concluded in Kalabhai Maganbhai Koli (supra) as under :- “38. 8. In view of the observations made by the Division Bench, the Insurance Company would not be permitted to raise defence including those under Section 149(2) of the M.V. Act, at the stage of proceedings under Section 140 of the Act. The Division Bench had concluded in Kalabhai Maganbhai Koli (supra) as under :- “38. In the context of questions referred, we summarise our answers as under :- (i) At the stage of proceedings under Section 140 of the MV Act, the Claims Tribunal has to verify only following three aspects :- (a) the accident has arisen out of use of motor vehicle, (b) the said accident resulted in permanent disablement of a person filing the claim or in case of death his legal representatives. (c) the claim is made against the owner and the insurer of the motor vehicle involved in the accident. (ii) If the insurance Company has raised dispute with any of these aspects, the Claims Tribunal would give its findings through a summary inquiry. (iii) If the insurance Company has not raised any dispute with respect to any of these aspects or if raised, is decided against the insurance company by the Claims Tribunal, the same would bind the insurance company at the later stage of deciding the Claim Petition under Section 166 of the MV Act. (iv) No other defences including those referred to in Section 149(2) of the MV Act would be available to the insurance Company at the stage of application under Section 140 of the MV Act. It would therefore, not be necessary, in fact, not permissible for the insurance company to raise such defences at this stage and if raised the Tribunal shall not decide the same at that stage. There would therefore, be no question of any res judicata with respect to such issues at the stage when the Claims Tribunal proceeds to decide the Claim Petition under Section 166 of the MV Act.” 9. First Appeal No.1271 of 2020 with cognate matters were disposed of on 27.08.2020; the matters were remanded back to the Tribunal to consider the dispute raised by the Insurance Company, as no finding was given on the issues propounded in the case of Kalabhai Maganbhai Koli (supra). The Court has passed the order in the following terms :- “10. First Appeal No.1271 of 2020 with cognate matters were disposed of on 27.08.2020; the matters were remanded back to the Tribunal to consider the dispute raised by the Insurance Company, as no finding was given on the issues propounded in the case of Kalabhai Maganbhai Koli (supra). The Court has passed the order in the following terms :- “10. In view of the aforesaid peculiar background of facts, this Court is inclined to consider the broad consensus of both learned advocates and disposing of the present group of appeals with following directions, which is would meet the ends of justice. (1) The impugned order dated 25.9.2019 passed by learned Chairman, Motor Accident Claims Tribunal (Main) Banaskantha District at Palanpur below Exh.4 in Motor Accident Claim Petition No.111 of 2018 is hereby quashed and set aside and as a consequent of it, the Tribunal is directed to pass a fresh order in the application under Section 140 of th Motor Vehicle Act, 1988 in accordance with law and in consonance with the proposition of law laid down in the aforesaid decision in the case of Kalabhai Maganbhai Koli (supra). (2) It is needless to say that while passing fresh order, the Tribunal shall give adequate opportunity to both the sides and after considering the respective submissions shall pass a fresh order in accordance with law, after assigning proper reasons. (3) Since this Court is remanding the matters back to the Tribunal for taking fresh decision, the Court has not expressed any opinion on merit and it is independently open for the Tribunal to pass a suitable order in the interest of justice. (4) In view of the fact that pursuant to compliance of the order dated 11.3.2020, the appellant Insurance Company has already deposited the amount as a part of the condition. The said amount shall be for the time being invested in Fixed Deposit in the name of Nazir of the concerned Tribunal till fresh decision is taken. (5) Since this issue is related to the issue of ‘No Fault Liability’, fresh exercise of the decision making process shall be concluded as early as possible, preferably within a period of FOUR WEEKS from the date of receipt of the order of this Court.” 10. (5) Since this issue is related to the issue of ‘No Fault Liability’, fresh exercise of the decision making process shall be concluded as early as possible, preferably within a period of FOUR WEEKS from the date of receipt of the order of this Court.” 10. The Court had also made reference of the decision in the case of Kalabhai Maganbhai Koli (supra) and has given reasons in Paragraph 9 as to the error committed by the Tribunal in the impugned orders. “9. Additionally, exercise of jurisdiction must be based on specific reasons and here, it appears that Tribunal has not concluded or given specific finding as to dispute is raised by Insurance Co. or not on the issue which propounded by the Court in aforesaid decision. So to that extent, learned advocate for the Insurance Co. is justified. In this context, the Court was informed about recent decision of the Apex Court to justify the submission of both the learned advocates; they are (i) (2019) 5 SCC 149 (Para.12 -15) and (ii) (2019) 5 SCC 607 and (iii) (2019) 5 SCC 744 .” 11. While remanding the matter to decide afresh, the earlier order passed below Exhibit IV under Section 140 was quashed and set aside and the Tribunal was directed to pass a fresh order in the application under Section 140 of the Motor Vehicles Act in accordance with law and in consonance with the proposition of law as laid down in Kalabhai Maganbhai Koli (supra). The learned Tribunal was mandated to follow the observations and directions as laid down in the case of Kalabhai Maganbhai Koli (supra). Learned Tribunal thus was to follow the order so passed, hearing the matter afresh, in First Appeal No.1277 of 2020 in accordance with law. The learned Tribunal was mandated to follow the observations and directions as laid down in the case of Kalabhai Maganbhai Koli (supra). Learned Tribunal thus was to follow the order so passed, hearing the matter afresh, in First Appeal No.1277 of 2020 in accordance with law. The learned Chairman of the Tribunal while hearing the matter after the remand, requested the Insurance Company to point from their reply Exhibit 17 dated 31.01.2019 the plea raised in connection with the driver of the offending vehicle being under the influence of liquor or some other intoxication and made observation in Paragraph 8 of the order below Exhibit 4 in all the M.A.C.P.’s, i.e. Nos.109 of 2018, 110 of 2018, 111 of 2018, 118 of 2018, 119 of 2018 as under:- “(8) Therefore, the claim of the insurance company that the driver of the vehicle tanker bearing registration No.GJ-12-AY-0358 was driving the vehicle after consuming alcohol is not proved at all and there is no iota of evidence that the driver was under intoxication. In view of the fact that no evidence of defence has been placed on record u/s.147 of the M.V. Act by the insurance company. Therefore, I decide that the subsequent defence raised by the Insurance company that the driver of the tanker was under impression of does not stand at all in view of the evidence which is contrary to the defence raised by the insurance company. Therefore, this Tribunal is of the opinion that the defence raised by the insurance company is not at all tenable, more particularly in view of the deposition of the doctor who had examined the driver of the vehicle. Therefore, I decide the issue as to whether the driver of the vehicle was under the impression of alcohol or any other substance is ruled out.” 12. As per the proposition of law as laid down in the case of Kalabhai Maganbhai Koli (supra) and the directions in First Appeal No.1271 of 2020 alongwith cognate matters, the Tribunal was to give finding only on the three aspects propounded. The Chairman of the Tribunal ought not to have travelled beyond the direction given in the remand order by the Court. 13. The Chairman of the Tribunal ought not to have travelled beyond the direction given in the remand order by the Court. 13. Thus, taking into consideration the proposition of law as laid down in Kalabhai Maganbhai Koli (supra) and the provision of Section 140 of the Motor Vehicle Act as stood prior to the Motor Vehicle Amendment Act, 2019, the learned Tribunal is directed to conduct the trial without being influenced by the observations made by the M.A.C.P. (Main), Banaskantha, Palanpur, in the order dated 26.02.2021 below Exhibit 4 in M.A.C.P. Nos.109 of 2018, 110 of 2018, 111 of 2018, 118 of 2018 and 119 of 2018. Now when the matter would be for trial, both the sides are permitted to adduce the evidence in accordance with law. (A) The claimant/s are permitted to move a withdrawal application for the amount so deposited by the Insurance Company under Section 140 of the M.V. Act. 14. With the aforesaid observations and directions, all the First Appeals are allowed. ORDER IN CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO.1 OF 2022 IN FIRST APPEAL NO.1927 OF 2021 The Civil Application is disposed of having become infructuous, as with the consent of the learned Advocates for the parties, the main matter is taken up for final hearing today.