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. 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 impre