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2007 DIGILAW 570 (PAT)

Oriental Insurance Company Ltd v. Rani Devi

2007-03-20

SYED MD.MAHFOOZ ALAM

body2007
Judgment SYED MD.MAHFOOZ ALAM, J. 1. This Miscellaneous Appeal has been preferred by the appellant-Oriental Insurance Company Limited through Branch Manager, Branch Office, Ara against the judgment dated 16.3.2000 passed in Claim Case No. 5 of 1996 by Sri Braj Kishre Prasad Gupta, 3rd Additional Motor Vehicles Claim Tribunal, Buxar whereby he has been pleased to award compensation at Rs. 2,13,500/- to the claimants-respondent nos. 1 to 5. 2. During the course of argument, the learned Advocate of the appellant raised preliminary objection regarding, the legality of the award passed against the Insurance Company in the absence of any award against the owner of the offending vehicle and in the absence of owner of the vehicle who was not impleaded as party in the claim application. He submitted that the judgment will show that the learned Tribunal did not fix any liability on the owner of the vehicle and without fixing the liability on the owner of the vehicle, the Tribunal directed the Oriental Insurance Company Limited to satisfy the award which is not permissible under law. In support of his argument, the learned Advocate of the appellant-Insurance Company has placed reliance upon the decisions reported in 1982 A.C.J. Page 211 (Oriental Fire & General Insurance Co. Ltd. appellant Vs. Bachan Singh and others, respondents) and on the decision reported in (1998)9 Supreme Court Cases 202 (Narendra Kumar and another, appellants Vs. Yarenissa and others, respondents). 3. The learned Advocate of the appellant further raised objection that the claim application was filed under sec. 166 of the Motor Vehicles Act which cannot be allowed unless it is proved that at the time of accident the driver was driving the vehicle rashly and negligently. He submitted that the finding of the Tribunal will show that the Tribunal did not hold the driver responsible for the said accident and so, the Tribunal has committed illegality in allowing the claim application. On these two grounds, the learned Advocate of the appellant has prayed to allow this appeal and set aside the finding of the Tribunal. 4. He submitted that the finding of the Tribunal will show that the Tribunal did not hold the driver responsible for the said accident and so, the Tribunal has committed illegality in allowing the claim application. On these two grounds, the learned Advocate of the appellant has prayed to allow this appeal and set aside the finding of the Tribunal. 4. As regards the submission of the learned Advocate of the appellant that in the absence of the finding that the driver was driving the offending vehicle rashly and negligently, the claim application under Sec. 166 of the M.V. Act cannot be allowed, I am of the view that this principle cannot be applied in each and every case as there may be cases in which the driver will not be at fault and the accident may occur due to mechanical defect in the vehicle or due to some unavoidable circumstances beyond the control of driver so in such cases compensation can be awarded under the provision of Sec. 166 of the M.V. Act without proof of rash and negligent act of the driver of the offending vehicle. In this regard I rely upon the decision reported in (2003)6 Supreme Court Cases 420 (Jitendra Kumar, appellant Vs. Oriental Insurance Co. Ltd. and another, respondents). In the instant case also the driver of the offending bus was overpowered by some greedy elements who took control of the steering due to which the accident took place, as such even if it is not established that the accident was caused due to rash and negligent driving of the driver of the offending vehicle, the Insurance Company is bound to pay the compensation if the offending vehicle is insured. Under the circumstances mentioned above, I reject the argument of the learned Advocate of the appellant-Insurance Company on this point. 5. As regards the submission of the learned Advocate of the appellant that without impleading the owner of the bus as party in the claim application, the Insurance Company cannot be asked to satisfy the award as per the provision of Section 149 of the M.V. Act, I am (illegible) that this argument of the learned Advocate of the appellant finds support from the decisions reported in (1998)9 Supreme Court Cases 202 (Narendra Kumar and another Vs. Yarenissa and others) (supra) and 1982 A.C.J. 211 (Oriental Fire & General Insurance Company Limited Vs. Yarenissa and others) (supra) and 1982 A.C.J. 211 (Oriental Fire & General Insurance Company Limited Vs. Bachan Singh and others) (supra). It has been held by the Apex Court in the case of Narendra Kumar and another Vs. Yarenissa and others (supra) reported in (1998)9 Supreme Court Cases 202 that a claim application cannot be filed against the Insurance Company alone if the tortfeasors are not the aggrieved parties under Sec. 110 D, they are persons against whom the claim application must be preferred and an award sought for otherwise the insurer would not be put to notice and would not be liable to answer judgment as if a judgment-debtor. 6. It appears from the record that in the claim case in spite of the objections raised by the Insurance Company, the claimants did not implead the owner of the vehicle as party to the claim application, who was necessary party to the application, being a person insured under the policy issued under Sub-section 3 of Sec. 147 of M.V. Act covering liability of the person insured. As per the provision under Sec. 149 of M.V. Act the award must be obtained against any person insured under the policy and only then the insurer can be asked to satisfy the judgment and award, but in the instant case the award has not been obtained against the insured as such the Insurance Company is not under obligation to satisfy the award which was not obtained against the person insured by the Company. I, therefore, hold that the insurer of the offending vehicle was a necessary party and without impleading him as party in the claim case and without passing award against him, his insurer i.e. Appellant Insurance Company cannot be asked to satisfy the award. However, I am of the view that only on this technical ground, the claim application cannot be rejected and the proper course is to remand back the record to the Tribunal with direction to the claimants to implead the driver as well as the owner of the offending vehicle as opposite parties and also with direction to the Tribunal to dispose of the claim application after giving opportunity to the newly added party to file objection, if any and to contest the claim if they so choose, and then to dispose of the claim application on the basis of the materials already available on record. 7. 7. In the result, this Miscellaneous Appeal is allowed and the judgment and award of the Tribunal are set aside and this claim case is remanded back to the Tribunal for disposing of the claim application, as directed above. The appellant-Insurance Company is permitted to withdraw the statutory amount.