2009 Supreme(Guj) 107

2009 (2) GCD 1263 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Oriental Insurance Company Limited
Versus
Galbiben Dosajibhai Manjibhai & Ors.
First Appeal No. 776 of 20091—Decided on 02/03/20092

Point in Issue :
Whether in the facts of the case Insurance is not liable to pay compensation because accident look place before amendment of Section 147 of the Act?

Headnote:Head Note :

       Motor Vehicles Act, 1988 (Central Act 59 of 1988) — Section 147 — Insurance Company — Accident before amendment — Liability of Insurance — Finding of — In these appeals appellant has challenged common award made by MACT dated 11.07.2008 — The Learned Advocate for appellant has not raised any contention in respect of quantum and negligence decided by Tribunal — Only contention raised is about liability of Insurance under the Act prior to amendment of the Section 147 of the Act — The Learned Advocate appellant has mainly argued that because of amended Section 147 Insurance Company is liable to pay compensation to claimants — The accident in the case had taken place prior to amendment of the said provision and, therefore, Insurance can not be held liable for payment of compensation to claimants — Court closely scrutinised the award and found that learned Advocate for Insurance has not made any such submission that Insurance is not liable because of amended provision of Law — The issues framed in the case also reflects that no such submission was pressed before Tribunal — Otherwise after framing of issues by Tribunal it was the duty of Advocate for Insurance to request the Tribunal to frame issue in respect of liability of Insurance — In absence of any finding in this regard Court opened that no such contention was raised on behalf of Insurance before the Tribunal and also for that reason Tribunal has rightly not examined such issue in award — Court held in the said facts contention raised by Insurance can not be accepted — Same are liable to be rejected.

       Held :

       Court has perused impugned award. Court has also considered submissions made by Advocate Mr. Tunvar appearing before claims Tribunal on behalf of appellant insurance company and from perusal of his submissions, except the contention that insurance company is not liable for passengers travelling in goods vehicle, there is no other submission made by learned Advocate Mr. Tunvar that because of amended Section 147, insurance company is not liable to pay compensation to claimants as accident took place prior to accident. On 07.07.2008, written submissions were filed by insurance company which were taken on record by claims Tribunal but question is whether those written submissions tendered by insurance company before claims Tribunal were thereafter pressed into service by advocate Mr. Tanvar or not. From discussion made by claims Tribunal in impugned award, it appears that before claims tribunal, question of law was, in detail, argued by Advocate appearing for insurance company but from that submissions or arguments made by learned Advocate for insurance company Mr. Tunvar, it does not appear that any such submission was made that insurance company is not liable because of amended provisions of Section 147 of MV Act, 1988 and, therefore, according to my opinion, looking to impugned award as it is and also considering written submissions as well as written statement, if it has not been pressed into service before claims Tribunal and if decision has not been invited on issue, then, naturally, claims Tribunal cannot examine such issue which was not pressed into service before it by insurance company.

       At the time of framing issues, advocate for insurance company ought to have brought to notice of claims Tribunal to frame issue on question, whether insurance company is liable to pay compensation in light of amended provisions of Section 147 of MV Act, 1988 or not. After framing of issues by claims tribunal, no such prayer was made by insurance company’s advocate before claims Tribunal and no such issue was framed by claims Tribunal because no such submission was made by advocate for insurance company before claims tribunal. Otherwise, after framing of issues by claims tribunal, it is duty of advocate for insurance company to request claims Tribunal to frame issue in respect of liability of insurance company in light of amended provisions of Section 147 of MV Act, 1988. So, in common award, no such contention on behalf of insurance company is finding place in respect of liability of insurance company after amendment in Section 147 of MV Act, 1988, therefore, according to my opinion, if such contention is not finding place in impugned award, then, presumption is that no such contention is raised by insurance company before insurance company and claims Tribunal has rightly not examined such issue in award.

       If insurance company was having feeling that such contention though raised by it has not been considered by claims Tribunal in award, then, option was available and it was having remedy to approach claims Tribunal by filing necessary application inviting attention of claims Tribunal that such contention, though raised and pressed into service, not decided by claims tribunal. Claims Tribunal is having power to consider such application if it is made by party having such grievance and then to pass appropriate orders, therefore, according to my opinion, contention which was not raised before claims Tribunal and not pressed into service by insurance company’s advocate was rightly not examined by claims Tribunal and in doing so, claims Tribunal has not committed any lapse or error requiring interference of this Court. [Para 12]

       Law Laid Down :

       If any contention raised before Tribunal has not been considered by it then remedy is to approach Tribunal by filing application for review but party can not raise such contention for the first time before Court.

       Case Law Analysis :

       National Insurance Co. Ltd. vs. Chholleti Bharatamma and Others, 2008 ACJ 268 [Para 9];; Shardaben Nitinrai & Anr. vs. Gujarat State Road Transport Corporation, Ahmedabad & Ors., 1981 GLH Vol. XXII 1258 [Para 9];; Smt. Mallawwa etc. vs. The Oriental Insurance Co. Ltd. & Others, JT 1998 (8) SC 217 [Para 13];; National Insurance Co. Ltd. vs. Ajit Kumar and Others, AIR 2003 SC 3093 [Para 13];; Oriental Insurance Company Ltd. vs. Devireddy Konda Reddy & Others etc. etc., 2003 (1) Scale 1441 [Para 13];; New India Assurance Co. Ltd. vs. C.M. Jaya & Others, 2002 (1) Supreme 170 [Para 13].—Relied on