( 1 ) THE applicant - National Insurance Company Limited has filed the present Civil Application with a prayer to condone the delay of 675 days in filing First Appeal before this Court.

( 2 ) LEARNED advocate Mr. Mehul Sharad Shah, who is appearing on behalf of applicant " Insurance Company, submitted that the detail which has been given in application, except that, applicant is not having any other material to place on record for satisfying the delay beyond 2006 to 2008, in all 675 days.

( 3 ) I have considered the submissions made by learned advocate Mr. Shah. He also submitted that liberal view may be taken in this matter. That submission is also considered by this Court.

( 4 ) THE Motor Accident Claim Petition No. 279 of 2003 filed by claimants, because, one Vasubhai Raviyabhai Ghodi who died in accident on 28th May 2003 at about 8-00 pm at night near Pali Karamveli S. T. Stand. At the time of accident, the deceased was driving Bajaj Scooter No. GJ-15-S-6496 going to Karamveli to Daman, where, from the opposite side, one Hero Honda Splender Motorcycle No. GJ-15-C-9462 driven by another person dashed with Scooter. Ultimately, schoorist Shri Ghodi died because of injury received by him in the accident. Total claim was made about Rs. 10 lakhs by father, mother, wife, minor son and minor daughter of the deceased. This National Insurance Company Limited is representing Hero Honda Motorcycle who dashed with the scooter and Shri Ghodi was died. The deceased was aged about 31 years and according to claimant, he was earning Rs. 5,000/- per month. These are the facts which have been taken into account by Tribunal and ultimately, Tribunal has come to conclusion that there was 5% negligence of the deceased and 95% negligence of Hero Honda Motorcycle. Tribunal has awarded Rs. 2,94,000/- with 9% interest on 22nd February 2006.

( 5 ) IN light of these factual background, now, learned advocate Mr. Shah raised contention before this Court that because of a riding person of Hero Honda who was a driver as well as owner and not having valid driving licence, therefore, Insurance Company is not supposed to pay single pie to the claimant as Insurance Company is not liable under the Insurance Policy. He also raised contention that this question was raised in the written statement which was not considered by Tribunal and therefore, there is no discussion of such contention in the award.

( 6 ) I have considered these submissions made by learned advocate Mr. Shah. Looking to his submissions, in the award of the Tribunal, nowhere, this question is discussed by the Tribunal in written statement also while referring by the Tribunal, this question is not referred it and discussed it and this contention was not argued by the lawyer who was representing the Insurance Company. There is no affidavit of the lawyer Mr. P. C. Sanghavi who was representing the Insurance Company that such contention was raised before the Tribunal and Tribunal has not dealt with. In light of the background, naturally, this contention was not raised by the Insurance Company before the Tribunal. If it is raised in written statement, then, it may not be pressed before the Tribunal by the learned advocate Mr. Sanghavi, therefore, Tribunal has rightly not examined such issue. Ultimately, Shri Ghodi has died in the accident. Wife and children became helpless because of the death of father and husband. The delay condone application filed by Insurance Company with a prayer to condone it, because, Insurance Company is having a good question of law to be argued which I have, prima facie, examined it and from the record of the Tribunal, there is no such contention was raised by Insurance Company before the Tribunal. No affidavit of the lawyer is filed to the effect that such question was raised and not dealt with by the Tribunal. Therefore, contention raised by learned advocate Mr. Shah that important question of law is there, cannot be accepted and therefore, the same is rejected.

( 7 ) IT

Click Here to Read the rest of this document