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Tribunals award of compesation set aside by High Court

The deceased was traveling unauthorizedly in a goods vehicle, and the accident took place prior to amendment of s 147 of the Motor Vehicles Act. Tribunal passed an award against the appellant Insurance Company. On appeal the High Court set aside the Tribunals award of paying to the original claimants and then recovering the same from the owner.-500114

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<span style="font-size:100%;font-family:Arial;color:#000000;" data-sheets-value="{"1":2,"2":"United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015\n C/FA/3421/2005 ORDER\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n FIRST APPEAL NO. 3421 of 2005\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & \n 2....Defendant(s)\n =============================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 \u00ad 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.\u00ad(R) for the Defendant(s) No. 3\n =============================================\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n \n Date : 11/12/2015\n \n ORAL ORDER\n\n\n In para 5 of the judgment and order dated 26.11.2015, in \n place of \"either from the owner and/or the original owner\", it \n should be read as \"either from the owner and/or the original \n claimant\". \n Fresh order be issued accordingly. Present note for speaking \n to minutes is disposed of accordingly. \n\n\n\n SD/\u00ad \n (M.R.SHAH, J.) \n\n\n Ajay\n\n\n\n\n Page 1 of 1\n\nHC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015\n 1 of 7\n C/FA/3421/2005 JUDGMENT\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n FIRST APPEAL NO. 3421 of 2005\n\n\n FOR APPROVAL AND SIGNATURE:\n\n\n HONOURABLE MR.JUSTICE M.R. SHAH\n\n ======================================\n\n 1 Whether Reporters of Local Papers may be\n allowed to see the judgment ?\n\n 2 To be referred to the Reporter or not ?\n\n 3 Whether their Lordships wish to see the fair\n copy of the judgment ?\n\n 4 Whether this case involves a substantial\n question of law as to the interpretation of the\n Constitution of India or any order made\n thereunder ?\n\n ======================================\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS)\n & 2....Defendant(s)\n ======================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.-(R) for the Defendant(s) No. 3\n ======================================\n\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n\n Date : 26/11/2015\n\n ORAL JUDGMENT\nHC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as \"the tribunal\") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.\n[2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.\n[2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.\nMaking the above submissions and relying upon the above decisions it is requested to allow the present Appeal.\n[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.\n[4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.\n[4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.\n[4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.\n[5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.\n(M.R. SHAH, J.) "}" data-sheets-userformat="{"2":14653,"3":{"1":0,"3":1},"5":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"6":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"7":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"8":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"11":4,"14":{"1":2,"2":0},"15":"Arial","16":10}">United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015 C/FA/3421/2005 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 3421 of 2005 UNITED INDIA INSURANCE CO LTD....Appellant(s) Versus JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & 2....Defendant(s) ============================================= Appearance: MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1 MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1 MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1 MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 1.2 RULE SERVED for the Defendant(s) No. 2 SERVED BY AFFIX.(R) for the Defendant(s) No. 3 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH Date : 11/12/2015 ORAL ORDER In para 5 of the judgment and order dated 26.11.2015, in place of "either from the owner and/or the original owner", it should be read as "either from the owner and/or the original claimant". Fresh order be issued accordingly. Present note for speaking to minutes is disposed of accordingly. SD/ (M.R.SHAH, J.) Ajay Page 1 of 1 HC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015 1 of 7 C/FA/3421/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 3421 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ====================================== UNITED INDIA INSURANCE CO LTD....Appellant(s) Versus JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & 2....Defendant(s) ====================================== Appearance: MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1 MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1 MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1 MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2 RULE SERVED for the Defendant(s) No. 2 SERVED BY AFFIX.-(R) for the Defendant(s) No. 3 ====================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/11/2015 ORAL JUDGMENT HC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as "the tribunal") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.<span style="font-size: 100%;" data-sheets-value="{"1":2,"2":"United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015\n C/FA/3421/2005 ORDER\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n FIRST APPEAL NO. 3421 of 2005\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & \n 2....Defendant(s)\n =============================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 \u00ad 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.\u00ad(R) for the Defendant(s) No. 3\n =============================================\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n \n Date : 11/12/2015\n \n ORAL ORDER\n\n\n In para 5 of the judgment and order dated 26.11.2015, in \n place of \"either from the owner and/or the original owner\", it \n should be read as \"either from the owner and/or the original \n claimant\". \n Fresh order be issued accordingly. Present note for speaking \n to minutes is disposed of accordingly. \n\n\n\n SD/\u00ad \n (M.R.SHAH, J.) \n\n\n Ajay\n\n\n\n\n Page 1 of 1\n\nHC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015\n 1 of 7\n C/FA/3421/2005 JUDGMENT\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n FIRST APPEAL NO. 3421 of 2005\n\n\n FOR APPROVAL AND SIGNATURE:\n\n\n HONOURABLE MR.JUSTICE M.R. SHAH\n\n ======================================\n\n 1 Whether Reporters of Local Papers may be\n allowed to see the judgment ?\n\n 2 To be referred to the Reporter or not ?\n\n 3 Whether their Lordships wish to see the fair\n copy of the judgment ?\n\n 4 Whether this case involves a substantial\n question of law as to the interpretation of the\n Constitution of India or any order made\n thereunder ?\n\n ======================================\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS)\n & 2....Defendant(s)\n ======================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.-(R) for the Defendant(s) No. 3\n ======================================\n\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n\n Date : 26/11/2015\n\n ORAL JUDGMENT\nHC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as \"the tribunal\") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.\n[2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.\n[2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.\nMaking the above submissions and relying upon the above decisions it is requested to allow the present Appeal.\n[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.\n[4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.\n[4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.\n[4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.\n[5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.\n(M.R. SHAH, J.) "}" data-sheets-userformat="{"2":14653,"3":{"1":0,"3":1},"5":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"6":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"7":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"8":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"11":4,"14":{"1":2,"2":0},"15":"Arial","16":10}"> [2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.<span style="font-size: 100%;" data-sheets-value="{"1":2,"2":"United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015\n C/FA/3421/2005 ORDER\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n FIRST APPEAL NO. 3421 of 2005\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & \n 2....Defendant(s)\n =============================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 \u00ad 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.\u00ad(R) for the Defendant(s) No. 3\n =============================================\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n \n Date : 11/12/2015\n \n ORAL ORDER\n\n\n In para 5 of the judgment and order dated 26.11.2015, in \n place of \"either from the owner and/or the original owner\", it \n should be read as \"either from the owner and/or the original \n claimant\". \n Fresh order be issued accordingly. Present note for speaking \n to minutes is disposed of accordingly. \n\n\n\n SD/\u00ad \n (M.R.SHAH, J.) \n\n\n Ajay\n\n\n\n\n Page 1 of 1\n\nHC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015\n 1 of 7\n C/FA/3421/2005 JUDGMENT\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n FIRST APPEAL NO. 3421 of 2005\n\n\n FOR APPROVAL AND SIGNATURE:\n\n\n HONOURABLE MR.JUSTICE M.R. SHAH\n\n ======================================\n\n 1 Whether Reporters of Local Papers may be\n allowed to see the judgment ?\n\n 2 To be referred to the Reporter or not ?\n\n 3 Whether their Lordships wish to see the fair\n copy of the judgment ?\n\n 4 Whether this case involves a substantial\n question of law as to the interpretation of the\n Constitution of India or any order made\n thereunder ?\n\n ======================================\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS)\n & 2....Defendant(s)\n ======================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.-(R) for the Defendant(s) No. 3\n ======================================\n\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n\n Date : 26/11/2015\n\n ORAL JUDGMENT\nHC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as \"the tribunal\") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.\n[2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.\n[2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.\nMaking the above submissions and relying upon the above decisions it is requested to allow the present Appeal.\n[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.\n[4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.\n[4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.\n[4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.\n[5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.\n(M.R. SHAH, J.) "}" data-sheets-userformat="{"2":14653,"3":{"1":0,"3":1},"5":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"6":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"7":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"8":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"11":4,"14":{"1":2,"2":0},"15":"Arial","16":10}"> [2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.Making the above submissions and relying upon the above decisions it is requested to allow the present Appeal.<span style="font-size: 100%;" data-sheets-value="{"1":2,"2":"United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015\n C/FA/3421/2005 ORDER\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n FIRST APPEAL NO. 3421 of 2005\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & \n 2....Defendant(s)\n =============================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 \u00ad 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.\u00ad(R) for the Defendant(s) No. 3\n =============================================\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n \n Date : 11/12/2015\n \n ORAL ORDER\n\n\n In para 5 of the judgment and order dated 26.11.2015, in \n place of \"either from the owner and/or the original owner\", it \n should be read as \"either from the owner and/or the original \n claimant\". \n Fresh order be issued accordingly. Present note for speaking \n to minutes is disposed of accordingly. \n\n\n\n SD/\u00ad \n (M.R.SHAH, J.) \n\n\n Ajay\n\n\n\n\n Page 1 of 1\n\nHC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015\n 1 of 7\n C/FA/3421/2005 JUDGMENT\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n FIRST APPEAL NO. 3421 of 2005\n\n\n FOR APPROVAL AND SIGNATURE:\n\n\n HONOURABLE MR.JUSTICE M.R. SHAH\n\n ======================================\n\n 1 Whether Reporters of Local Papers may be\n allowed to see the judgment ?\n\n 2 To be referred to the Reporter or not ?\n\n 3 Whether their Lordships wish to see the fair\n copy of the judgment ?\n\n 4 Whether this case involves a substantial\n question of law as to the interpretation of the\n Constitution of India or any order made\n thereunder ?\n\n ======================================\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS)\n & 2....Defendant(s)\n ======================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.-(R) for the Defendant(s) No. 3\n ======================================\n\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n\n Date : 26/11/2015\n\n ORAL JUDGMENT\nHC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as \"the tribunal\") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.\n[2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.\n[2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.\nMaking the above submissions and relying upon the above decisions it is requested to allow the present Appeal.\n[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.\n[4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.\n[4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.\n[4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.\n[5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.\n(M.R. SHAH, J.) "}" data-sheets-userformat="{"2":14653,"3":{"1":0,"3":1},"5":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"6":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"7":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"8":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"11":4,"14":{"1":2,"2":0},"15":"Arial","16":10}">[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.<span style="font-size: 100%;" data-sheets-value="{"1":2,"2":"United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015\n C/FA/3421/2005 ORDER\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n FIRST APPEAL NO. 3421 of 2005\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & \n 2....Defendant(s)\n =============================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 \u00ad 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.\u00ad(R) for the Defendant(s) No. 3\n =============================================\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n \n Date : 11/12/2015\n \n ORAL ORDER\n\n\n In para 5 of the judgment and order dated 26.11.2015, in \n place of \"either from the owner and/or the original owner\", it \n should be read as \"either from the owner and/or the original \n claimant\". \n Fresh order be issued accordingly. Present note for speaking \n to minutes is disposed of accordingly. \n\n\n\n SD/\u00ad \n (M.R.SHAH, J.) \n\n\n Ajay\n\n\n\n\n Page 1 of 1\n\nHC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015\n 1 of 7\n C/FA/3421/2005 JUDGMENT\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n FIRST APPEAL NO. 3421 of 2005\n\n\n FOR APPROVAL AND SIGNATURE:\n\n\n HONOURABLE MR.JUSTICE M.R. SHAH\n\n ======================================\n\n 1 Whether Reporters of Local Papers may be\n allowed to see the judgment ?\n\n 2 To be referred to the Reporter or not ?\n\n 3 Whether their Lordships wish to see the fair\n copy of the judgment ?\n\n 4 Whether this case involves a substantial\n question of law as to the interpretation of the\n Constitution of India or any order made\n thereunder ?\n\n ======================================\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS)\n & 2....Defendant(s)\n ======================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.-(R) for the Defendant(s) No. 3\n ======================================\n\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n\n Date : 26/11/2015\n\n ORAL JUDGMENT\nHC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as \"the tribunal\") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.\n[2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.\n[2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.\nMaking the above submissions and relying upon the above decisions it is requested to allow the present Appeal.\n[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.\n[4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.\n[4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.\n[4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.\n[5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.\n(M.R. SHAH, J.) "}" data-sheets-userformat="{"2":14653,"3":{"1":0,"3":1},"5":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"6":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"7":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"8":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"11":4,"14":{"1":2,"2":0},"15":"Arial","16":10}"> [4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.<span style="font-size: 100%;" data-sheets-value="{"1":2,"2":"United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015\n C/FA/3421/2005 ORDER\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n FIRST APPEAL NO. 3421 of 2005\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & \n 2....Defendant(s)\n =============================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 \u00ad 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.\u00ad(R) for the Defendant(s) No. 3\n =============================================\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n \n Date : 11/12/2015\n \n ORAL ORDER\n\n\n In para 5 of the judgment and order dated 26.11.2015, in \n place of \"either from the owner and/or the original owner\", it \n should be read as \"either from the owner and/or the original \n claimant\". \n Fresh order be issued accordingly. Present note for speaking \n to minutes is disposed of accordingly. \n\n\n\n SD/\u00ad \n (M.R.SHAH, J.) \n\n\n Ajay\n\n\n\n\n Page 1 of 1\n\nHC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015\n 1 of 7\n C/FA/3421/2005 JUDGMENT\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n FIRST APPEAL NO. 3421 of 2005\n\n\n FOR APPROVAL AND SIGNATURE:\n\n\n HONOURABLE MR.JUSTICE M.R. SHAH\n\n ======================================\n\n 1 Whether Reporters of Local Papers may be\n allowed to see the judgment ?\n\n 2 To be referred to the Reporter or not ?\n\n 3 Whether their Lordships wish to see the fair\n copy of the judgment ?\n\n 4 Whether this case involves a substantial\n question of law as to the interpretation of the\n Constitution of India or any order made\n thereunder ?\n\n ======================================\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS)\n & 2....Defendant(s)\n ======================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.-(R) for the Defendant(s) No. 3\n ======================================\n\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n\n Date : 26/11/2015\n\n ORAL JUDGMENT\nHC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as \"the tribunal\") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.\n[2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.\n[2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.\nMaking the above submissions and relying upon the above decisions it is requested to allow the present Appeal.\n[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.\n[4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.\n[4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.\n[4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.\n[5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.\n(M.R. SHAH, J.) "}" data-sheets-userformat="{"2":14653,"3":{"1":0,"3":1},"5":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"6":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"7":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"8":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"11":4,"14":{"1":2,"2":0},"15":"Arial","16":10}"> [4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.<span style="font-size: 100%;" data-sheets-value="{"1":2,"2":"United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015\n C/FA/3421/2005 ORDER\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n FIRST APPEAL NO. 3421 of 2005\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & \n 2....Defendant(s)\n =============================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 \u00ad 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.\u00ad(R) for the Defendant(s) No. 3\n =============================================\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n \n Date : 11/12/2015\n \n ORAL ORDER\n\n\n In para 5 of the judgment and order dated 26.11.2015, in \n place of \"either from the owner and/or the original owner\", it \n should be read as \"either from the owner and/or the original \n claimant\". \n Fresh order be issued accordingly. Present note for speaking \n to minutes is disposed of accordingly. \n\n\n\n SD/\u00ad \n (M.R.SHAH, J.) \n\n\n Ajay\n\n\n\n\n Page 1 of 1\n\nHC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015\n 1 of 7\n C/FA/3421/2005 JUDGMENT\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n FIRST APPEAL NO. 3421 of 2005\n\n\n FOR APPROVAL AND SIGNATURE:\n\n\n HONOURABLE MR.JUSTICE M.R. SHAH\n\n ======================================\n\n 1 Whether Reporters of Local Papers may be\n allowed to see the judgment ?\n\n 2 To be referred to the Reporter or not ?\n\n 3 Whether their Lordships wish to see the fair\n copy of the judgment ?\n\n 4 Whether this case involves a substantial\n question of law as to the interpretation of the\n Constitution of India or any order made\n thereunder ?\n\n ======================================\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS)\n & 2....Defendant(s)\n ======================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.-(R) for the Defendant(s) No. 3\n ======================================\n\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n\n Date : 26/11/2015\n\n ORAL JUDGMENT\nHC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as \"the tribunal\") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.\n[2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.\n[2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.\nMaking the above submissions and relying upon the above decisions it is requested to allow the present Appeal.\n[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.\n[4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.\n[4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.\n[4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.\n[5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.\n(M.R. SHAH, J.) "}" data-sheets-userformat="{"2":14653,"3":{"1":0,"3":1},"5":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"6":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"7":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"8":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"11":4,"14":{"1":2,"2":0},"15":"Arial","16":10}"> [4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.<span style="font-size: 100%;" data-sheets-value="{"1":2,"2":"United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015\n C/FA/3421/2005 ORDER\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n FIRST APPEAL NO. 3421 of 2005\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & \n 2....Defendant(s)\n =============================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 \u00ad 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.\u00ad(R) for the Defendant(s) No. 3\n =============================================\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n \n Date : 11/12/2015\n \n ORAL ORDER\n\n\n In para 5 of the judgment and order dated 26.11.2015, in \n place of \"either from the owner and/or the original owner\", it \n should be read as \"either from the owner and/or the original \n claimant\". \n Fresh order be issued accordingly. Present note for speaking \n to minutes is disposed of accordingly. \n\n\n\n SD/\u00ad \n (M.R.SHAH, J.) \n\n\n Ajay\n\n\n\n\n Page 1 of 1\n\nHC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015\n 1 of 7\n C/FA/3421/2005 JUDGMENT\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n FIRST APPEAL NO. 3421 of 2005\n\n\n FOR APPROVAL AND SIGNATURE:\n\n\n HONOURABLE MR.JUSTICE M.R. SHAH\n\n ======================================\n\n 1 Whether Reporters of Local Papers may be\n allowed to see the judgment ?\n\n 2 To be referred to the Reporter or not ?\n\n 3 Whether their Lordships wish to see the fair\n copy of the judgment ?\n\n 4 Whether this case involves a substantial\n question of law as to the interpretation of the\n Constitution of India or any order made\n thereunder ?\n\n ======================================\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS)\n & 2....Defendant(s)\n ======================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.-(R) for the Defendant(s) No. 3\n ======================================\n\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n\n Date : 26/11/2015\n\n ORAL JUDGMENT\nHC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as \"the tribunal\") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.\n[2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.\n[2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.\nMaking the above submissions and relying upon the above decisions it is requested to allow the present Appeal.\n[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.\n[4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.\n[4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.\n[4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.\n[5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.\n(M.R. SHAH, J.) "}" data-sheets-userformat="{"2":14653,"3":{"1":0,"3":1},"5":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"6":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"7":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"8":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"11":4,"14":{"1":2,"2":0},"15":"Arial","16":10}"> [5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.<span style="font-size: 100%;" data-sheets-value="{"1":2,"2":"United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015\n C/FA/3421/2005 ORDER\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n FIRST APPEAL NO. 3421 of 2005\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & \n 2....Defendant(s)\n =============================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 \u00ad 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.\u00ad(R) for the Defendant(s) No. 3\n =============================================\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n \n Date : 11/12/2015\n \n ORAL ORDER\n\n\n In para 5 of the judgment and order dated 26.11.2015, in \n place of \"either from the owner and/or the original owner\", it \n should be read as \"either from the owner and/or the original \n claimant\". \n Fresh order be issued accordingly. Present note for speaking \n to minutes is disposed of accordingly. \n\n\n\n SD/\u00ad \n (M.R.SHAH, J.) \n\n\n Ajay\n\n\n\n\n Page 1 of 1\n\nHC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015\n 1 of 7\n C/FA/3421/2005 JUDGMENT\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n FIRST APPEAL NO. 3421 of 2005\n\n\n FOR APPROVAL AND SIGNATURE:\n\n\n HONOURABLE MR.JUSTICE M.R. SHAH\n\n ======================================\n\n 1 Whether Reporters of Local Papers may be\n allowed to see the judgment ?\n\n 2 To be referred to the Reporter or not ?\n\n 3 Whether their Lordships wish to see the fair\n copy of the judgment ?\n\n 4 Whether this case involves a substantial\n question of law as to the interpretation of the\n Constitution of India or any order made\n thereunder ?\n\n ======================================\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS)\n & 2....Defendant(s)\n ======================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.-(R) for the Defendant(s) No. 3\n ======================================\n\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n\n Date : 26/11/2015\n\n ORAL JUDGMENT\nHC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as \"the tribunal\") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.\n[2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.\n[2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.\nMaking the above submissions and relying upon the above decisions it is requested to allow the present Appeal.\n[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.\n[4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.\n[4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.\n[4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.\n[5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.\n(M.R. SHAH, J.) "}" data-sheets-userformat="{"2":14653,"3":{"1":0,"3":1},"5":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"6":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"7":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"8":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"11":4,"14":{"1":2,"2":0},"15":"Arial","16":10}"> (M.R. SHAH, J.)<span style="font-size: 100%;" data-sheets-value="{"1":2,"2":"United India Insurance Co Ltd vs Jashubhai Chamanbhai Vaghri ... on 11 December, 2015\n C/FA/3421/2005 ORDER\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n FIRST APPEAL NO. 3421 of 2005\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS) & \n 2....Defendant(s)\n =============================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 \u00ad 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.\u00ad(R) for the Defendant(s) No. 3\n =============================================\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n \n Date : 11/12/2015\n \n ORAL ORDER\n\n\n In para 5 of the judgment and order dated 26.11.2015, in \n place of \"either from the owner and/or the original owner\", it \n should be read as \"either from the owner and/or the original \n claimant\". \n Fresh order be issued accordingly. Present note for speaking \n to minutes is disposed of accordingly. \n\n\n\n SD/\u00ad \n (M.R.SHAH, J.) \n\n\n Ajay\n\n\n\n\n Page 1 of 1\n\nHC-NIC Page 1 of 7 Created On Tue Dec 15 01:34:32 IST 2015\n 1 of 7\n C/FA/3421/2005 JUDGMENT\n\n\n\n\n IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n FIRST APPEAL NO. 3421 of 2005\n\n\n FOR APPROVAL AND SIGNATURE:\n\n\n HONOURABLE MR.JUSTICE M.R. SHAH\n\n ======================================\n\n 1 Whether Reporters of Local Papers may be\n allowed to see the judgment ?\n\n 2 To be referred to the Reporter or not ?\n\n 3 Whether their Lordships wish to see the fair\n copy of the judgment ?\n\n 4 Whether this case involves a substantial\n question of law as to the interpretation of the\n Constitution of India or any order made\n thereunder ?\n\n ======================================\n UNITED INDIA INSURANCE CO LTD....Appellant(s)\n Versus\n JASHUBHAI CHAMANBHAI VAGHRI (DECD.THRO LEGAL HEIRS)\n & 2....Defendant(s)\n ======================================\n Appearance:\n MR GC MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MR HG MAZMUDAR, ADVOCATE for the Appellant(s) No. 1\n MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1\n MR PARESH M DARJI, ADVOCATE for the Defendant(s) No. 1.1 - 1.2\n RULE SERVED for the Defendant(s) No. 2\n SERVED BY AFFIX.-(R) for the Defendant(s) No. 3\n ======================================\n\n CORAM: HONOURABLE MR.JUSTICE M.R. SHAH\n\n Date : 26/11/2015\n\n ORAL JUDGMENT\nHC-NIC Page 2 of 7 Created On Tue Dec 15 01:34:32 IST 2015 2 of 7 C/FA/3421/2005 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accidents Claim Tribunal (Auxiliary), Gandhinagar (hereinafter referred to as \"the tribunal\") in MACP No.386/2002 (Old No. 980/1994) by which the learned tribunal has held the appellant herein-original opponent no.3 liable to pay the compensation for the death of the deceased-Jashubhai Chamanbahi Vaghri, the appellant herein-original opponent no.3 has preferred the present First Appeal.\n[2.0] The issue involved in the present Appeal is as such in a very narrow compass. It is the case on behalf of the appellant-original opponent no.3 that the deceased was traveling in a goods vehicle i.e. Truck bearing No.GJ-9-T-6321 and he was traveling unauthorizedly and, therefore, the appellant-Insurance Company is not liable to pay the compensation. It is the case on behalf of the appellant that as the accident took place prior to amendment of 1994 i.e. prior to the amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994, in view of the decision of the Hon'ble Supreme court in the case of New India Assurance Company Ltd. Vs. Asha Rani and Ors reported in 2003 (2) SCC 223, the impugned judgment and award passed by the learned tribunal in so far as against the appellant herein- Insurance Company cannot be sustained.\n[2.1] It is submitted by Shri Mazmudar, learned advocate appearing on behalf of the appellant-Insurance Company that as such the learned tribunal has also passed an order of pay and recover i.e. directing the appellant herein-Insurance HC-NIC Page 3 of 7 Created On Tue Dec 15 01:34:32 IST 2015 3 of 7 C/FA/3421/2005 JUDGMENT Company to first pay and deposit and after paying the amount of compensation to the original claimants thereafter to recover it from the owner of the aforesaid Truck. It is submitted that such an order also cannot be sustained in light of the decision of this Court in the case of United India Insurance Company Ltd. Vs. Lilaben W/o. Deceased Bhikhabhai Premjibhai Kathariya and Ors. rendered in First Appeal No.2121/2008 as well as one another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003.\nMaking the above submissions and relying upon the above decisions it is requested to allow the present Appeal.\n[3.0] Shri Paresh Darji, learned advocate has appeared on behalf of the original claimants. He is not in a position to dispute that the deceased was traveling in the goods vehicle unauthorisedly. He is also not disputing that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. prior to 14/11/1994. However, he has submitted that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the Insurance Company may not be permitted to make such a defence before this Court now. No other submissions have been made.\n[4.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is not in dispute that as such the deceased was traveling in the goods vehicle unauthorisedly. It is not in dispute that the accident occurred prior to amendment in Section 147 of the Motor Vehicles Act i.e. much prior to 14/11/1994. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of Asha Rani (Supra), the impugned judgment and award passed by the learned tribunal in so far as holding the appellant- Insurance Company to pay the compensation cannot be sustained.\n[4.1] The submissions on behalf of the original claimants that no such defence was taken by the Insurance Company before the learned tribunal and, therefore, the appellant- Insurance Company may not be permitted to take such a defence is concerned, considering the impugned judgment and award passed by the learned tribunal the aforesaid has no substance. As such the issue no.2 is specifically with respect to liability. Even the submissions were also made by the learned advocate appearing on behalf of the Insurance Company and as such the learned tribunal has also passed an order of pay and recover. If the question with respect to liability would not have been canvased and / or considered by the learned tribunal, the learned tribunal was not required to pass any order of pay and recover.\n[4.2] Even the impugned judgment and award passed by the learned tribunal by which the appellant-Insurance Company ordered to pay and recover i.e. directing the appellant-Insurance Company first to pay and deposit / pay the amount of compensation to the original claimants and then to recover from the original owner of the truck is concerned, the same also cannot be sustained in light of the decision of this Court in the case of Lilaben W/o Deceased Bhikhabhai Premjibhai Kathariaya and Ors. rendered in First Appeal HC-NIC Page 5 of 7 Created On Tue Dec 15 01:34:32 IST 2015 5 of 7 C/FA/3421/2005 JUDGMENT No.2121/2008 and another decision of this Court in the case of New India Assurance Co. Ltd. Vs. Saliyabai Abderehman Jat rendered in First Appeal No.2291/2003. By the aforesaid decision it is specifically held by this Court that in such a case where the deceased was traveling in a goods vehicle the appellant-Insurance Company is not liable to pay the compensation for the death of the deceased, who was a gratuitous passenger and such an order of paying and recovering cannot be sustained.\n[5.0] In view of the above and for the reasons stated hereinabove, the impugned judgment and award passed by the learned tribunal deserves to be quashed and set aside so far as the same is against the appellant-Insurance Company. Under the circumstances, the present Appeal succeeds. The impugned judgment and award passed by the learned tribunal in MACP No.386/2002 (Old No. 980/1994) holding the appellant-Insurance Company to pay the compensation for the death of the deceased passenger, more particularly, the order of paying to the original claimants and then recovering the same from the owner is hereby quashed and set aside to the aforesaid extent. The present Appeal is allowed accordingly so far as the present appellant-Insurance Company is concerned. It goes without saying that on quashing and setting aside the impugned judgment and award passed by the learned tribunal, the appellant-Insurance Company shall be entitled to get back the amount deposited by it with the learned tribunal and if any Fixed Deposit is lying with the learned tribunal the amount with accrued interest on the said Fixed Deposit be returned to the appellant-Insurance Company and for the balance amount it will be open for the appellant-Insurance Company to recover either from the owner and / or the original owner by initiating appropriate proceedings. In the facts and circumstances of the case, there shall be no order as to costs.\n(M.R. SHAH, J.) "}" data-sheets-userformat="{"2":14653,"3":{"1":0,"3":1},"5":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"6":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"7":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"8":{"1":[{"1":2,"2":0,"5":{"1":2,"2":0}},{"1":0,"2":0,"3":3},{"1":1,"2":0,"4":1}]},"11":4,"14":{"1":2,"2":0},"15":"Arial","16":10}">

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