ORIENTAL INSURANCE CO LTD Vs. JEEVABHAI GOVINDBHAI PATEL

JUDGEMENT

(1.) THE present petition has been preferred against the order dated 8. 9. 2006 below Exh. 26 in Motor Accident claim Petition No. 23 of 2005 passed by the Motor Accidents Claims Tribunal (Auxiliary), Gandhidham, Kutch, whereby the petitioner insurance company is denied the right of cross-examination of the petitioner.

(2.) I have heard the learned counsel for the petitioner who has submitted that the original applicants preferred an application under section 163-A of the Motor Vehicles act, 1988, where the negligence is not to be proved. But so far as age and income of the applicants is concerned, affidavit was tendered so that on the basis of the age and income, compensation can be calculated. It is submitted by the learned counsel for the petitioner that the person who has filed the affidavit ought to have been allowed to be cross-examined by the petitioner so far as correctness of age and income is concerned. This aspect of the matter has not been properly appreciated by the trial court. It is also submitted by the learned counsel for the petitioner that as per rules 229 and 230 of the Gujarat Motor Vehicles Rules, 1989, if the amount claimed is more than Rs. 10,000, the procedure as per order 19 of the Code of Civil Procedure ought to be followed by the trial court and the petitioner ought to have been allowed to cross-examine the person who has filed the affidavit. He has also relied upon the decision rendered by the Hon'ble Supreme court in the case of Deepal Girishbhai soni v. United India Insurance Co. Ltd. , 2004 ACJ 934 (SC), as well as the decision in the case of Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, 2001 ACJ 827 (SC), para 23. In the aforesaid two judgments, it has been pointed out that when an application is preferred under section 163-A of Motor Vehicles Act, 1988, for the amount of more than Rs. 10,000, the procedure enshrined in section 168 of the Act of 1988 ought to be followed. This aspect of the matter has also not been properly appreciated by the trial court and hence the impugned order requires to be quashed and set aside and the petitioner may be permitted to cross-examine the person who has filed affidavit giving age as well as income of the deceased.

(3.) I have heard the learned counsel for the respondents who has submitted that in fact, whenever an application is preferred under section 163-A of the 1988 Act, nothing is required to be proved. Negligence is not to be proved at all. Only on the basis of the age and income, compensation must be calculated by the Tribunal and the same is to be awarded. The order passed by the tribunal is absolutely true, correct and in consonance with the facts and the provisions of the act of 1988 and the Rules of 1989.