NEW INDIA ASSURANCE CO LTD Vs. GAURIBEN KARMANBHAI

JUDGEMENT

(1.) The owner, driver and the Insurance Company, being aggrieved by the judgement and award dated 22nd December, 1988 passed by the learned Motor Accident Claims Tribunal (Main), Rajkot in Motor Accident Claims Case No.95 of 1984, have filed this appeal.

(2.) Ms. Archana Acharya, learned Counsel for the appellants, on being confronted with the judgement of the Supreme Court in the matter of H.S. H. S. Ahammed Hussain & Anr. vs. Irfan Ahammed & Anr., 2002 AIR(SC) 2483, submits that the owner and the driver of the vehicle, who are also the appellants, be transposed as respondents and the appeal be heard for and on behalf of the Insurance Company only. The permission is accorded. Office shall make necessary amendment in the Appeal Memo.

(3.) The learned Counsel for the appellant does not challenge the accident and the liability of the driver, so also of the owner, because the said defences are not available to the Insurance Company. Ms. Acharya, learned Counsel for the appellant, however, submits that the claim petition was filed by Gauriben Karmanbhai through her next friend and guardian father - Karmanbhai Akhubhai, but, the Court did not observe the provisions available under Order XXXII of the Code of Civil Procedure, 1908 ("the Code" for short). She submits that in absence of any inquiry at the initial stage, the petition could not be proceeded with. Her further submission is that the medical evidence available on the record falls short to prove that the injuries suffered by the claimant led to her mental disorder.