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2005 DIGILAW 462 (RAJ)

National Insurance Co. Ltd. v. Mohan

2005-02-11

PRAKASH TATIA

body2005
JUDGMENT 1. - Learned Counsel for the petitioner submitted that though application for impleading the Motor Accidents Claims Tribunal, Bhilwara has been filed but, looking to the facts of the case, there is no need to issue notice to the Tribunal. 2. Heard learned Counsel for the parties. 3. Brief facts of the case are that a claim petition under the provisions of the Motor Vehicles Act was filed by the claimants impleading petitioner insurance company also as a party. On the application filed under Section 140 of the Motor Vehicles Act, the learned Motor Accidents Claims Tribunal, Bhilwara passed interim award and in pursuance of which the petitioner insurance company paid the amount as ordered by the Tribunal by submitting a cheque with application dated 25.7.1997. Insurance company submitted the cheque under protest so that they may recover the amount either from the owner of the vehicle or from the applicants. The case was fixed by the Motor Accidents Claims Tribunal for proceedings on 6.1.1999; but, on 20.11.1998, an application was submitted purporting to be a compromise between the claimants and the owner of the vehicle wherein the claimants agreed that the matter has been settled between them and the owner of the vehicle, therefore, claimants do not want to proceed with the claim. On this application, learned Motor Accidents Claims Tribunal, Bhilwara dismissed the claim petition as withdrawn by order dated 20.11.1998. 4. The petitioner insurance company is aggrieved against the order dated 20.11.98 and, therefore, filed the instant writ petition alleging that the claimants and the owner of the vehicle collusively took the money from the insurance company and thereafter the claimants withdrew the claim petition by getting preponement of the date and by this the respondents deprived the petitioner from the petitioner's money. 5. Learned Counsel for the owner of the vehicle vehemently submitted that the order dated 20.11.1998 is appealable order and the petitioner cannot maintain the writ petition in view of the Apex Court decision in the case of Sadhana Lodh v. National Insurance Co. Ltd., 2003 AIR SCW 930 . It is also submitted that the question of consent of counsel of the one contracting party in a compromise filed in the court cannot be examined in the writ jurisdiction. 6. I have considered the submission of learned Counsel for the parties and perused the impugned order. 7. Ltd., 2003 AIR SCW 930 . It is also submitted that the question of consent of counsel of the one contracting party in a compromise filed in the court cannot be examined in the writ jurisdiction. 6. I have considered the submission of learned Counsel for the parties and perused the impugned order. 7. It is clear from the provisions of Section 173(1) of the Motor Vehicles Act that appeal lies against the award passed by the Motor Accidents Claims Tribunal. Here, in this case, the claimants withdrew the claim petition and, therefore, no award was passed. It is not in dispute that the interim order under Section 140 was passed by the learned Tribunal and the petitioner insurance company deposited the amount under protest submitting the protest in writing in Motor Accidents Claims Tribunal on 27.7.1997 copy whereof is annexure 2 to the writ petition. It is also not in dispute that the claim case was preponed on the request of the claimants and the owner of the vehicle and without any information to petitioner insurance company the claimants and owner of the vehicle settled the matter and, in view of the settlement the claimants withdrew the case. It is the choice of the parties to settle the claim and the owner, in his right, could have agreed for the payment of the claim of the claimants but by agreement with claimant could not have fastened the liability upon the insurance company and also had no right to deprive the insurance company from proving its defence available under the Motor Vehicles Act. 8. In view of the above, since the order is not an award and is order permitting withdrawal of the claim petition only, therefore, the petitioner had no remedy to file appeal and it rightly preferred the writ petition. Hence, the judgment in the case of Sadhana Lodh v. National Insurance Co. Ltd. 2003 AIR SCW 930 (supra), has no application to the present case. 9. I do not find any force in the submission of learned Counsel for the petitioner that consent of advocate cannot be made the subject-matter in the writ petition because of the fact that argument itself has no application to the facts of the case. In this case there is no dispute that the insurance company or the company's counsel never gave any consent for any compromise. 10. In this case there is no dispute that the insurance company or the company's counsel never gave any consent for any compromise. 10. In view of the above, the order dated 20.11.1998 is set aside. The learned Motor Accidents Claims Tribunal, Bhilwara will decide the claim petition in accordance with law after giving opportunity to both the parties, viz., the owner of the vehicle and insurance company to find out whether the insurance company can get the amount back from the owner of the vehicle or not. The writ petition is, therefore, allowed. The matter is remanded to learned Motor Accidents Claims Tribunal, Bhilwara to decide the claim petition only with respect to the issue whether the insurance company was not liable to pay the compensation amount and whether the insurance company is entitled to recover the amount awarded under Section 140 from the owner of the vehicle. Since, the claimants withdrew the claim, therefore, they are not necessary party and as such there shall be no need to serve notice upon the claimants for deciding the claim petition.Petition allowed. *******