GENERAL INSURANCE SOCIETY Vs. MINALBEN

JUDGEMENT

(1.) THIS appeal is filed by the appellant the General Insurance Society Ltd. Bombay, insurer of Fiat Car No. GJZ 5408 involved in the accident, challenging the judgment and order dated 5-9-1977 passed by the Motor Accidents Claims Tribunal, Valsad at Navsari in Motor Vehicles Claims Petition No. 21 of 1975.

(2.) THE facts leading to this appeal, briefly stated are that a fatal accident took place on 21-11-1973 on National Highway No. 8 within the local limits of village Khadki in Valsad District, between the aforesaid Fiat Car No. GJZ 5408, comimg from Bombay and going to Rajkot, and motor-cycle No. GJL 7463, coming from Pardi and going to Vapi. In the said accident one Sharadchandra Dahyabhai Patel, who was driving the motor-cycle died on the spot. Widow and son (respondents Nos. 1 and 2) of said deceased Sharadchandra thereupon filed the aforesaid petition before the Tribunal claiming an amount of Rs. 1 lakh by way of compensation against driver Shabir Ahmedkhan Mohmedkhan Pathan (respondent No. 3) M/s. P.H. Wadi and Sons (respondent No. 4) owner of the said Fiat Car, and the General Insurance Society Ltd. (appellant) Insurer of the said Fiat Car. The Tribunal raised the necessary issues at exh. 25, and after recording the evidence and hearing the parties, same to the conclusion that Shabir Ahmedkhan driver of the said Fiat Car was negligent, but at the same time deceased Sharadchandra was also found negligent to the extent of 30 per cent, and in that view of the matter, the Tribunal awarded to the claimants an amount of Rs. 70,000/- by way of compensation with proportionate costs with interest at the rate of 6 per cent per annum from the date of application till realisation. The appellant-Insurance Company being aggrieved by the said judgment and order of the Tribunal has filed this appeal.

(3.) MR . B.J. Shethna, learned advocate for respondents Nos. 1 and 2, has raised a preliminary objection that the insurance company is permitted only to raise the defences which are enumerated in Sub-section (2) of Section 96 of the Motor Vehicles Act, 1939 (hereinafter referred to as "the act"), and the defence that the cover-note was antedated is not one of the defences enumerated in the said Sub-section (2) of Section 96 of the Act and, therefore, this Court should reject the said contention of the appellant.