Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3867 (ALL)

New India Assurance Co. Ltd. v. Rakesh Kumar

2009-12-23

VED PAL

body2009
JUDGMENT : Ved Pal, J. This revision u/s 115 of the CPC has been filed by the revisionist, New India Assurance Company Ltd. against the order dated 21.9.2006, passed by the Motor Accident Claims Tribunal/Additional District Judge (Special Judge Ayodhya Prakaran), Lucknow in Claim Petition No. 390 of 2003, Rakesh Kumar v. Mr. Khursheed Ahmad and Ors. whereby application of revisionist herein, moved u/s 170 of the Motor Vehicles Act was rejected. 2. The brief facts relevant for the decision of this revision are that Rakesh Kumar had filed a Claim Petition No. 390 of 2003 u/s 166 of the Motor Vehicles Act against the owner, driver and insurance company of the alleged offending vehicle. The owner of the vehicle filed written statement against the petition but when claimant examined his witness, he did not turned up to cross-examine the witness, therefore, the insurance company moved an application u/s 170 of the Motor Vehicles Act alleged that the owner of the vehicle is in collusion with the claimant and has failed to contest the claim, therefore, insurance company be permitted to contest the claim of all the ground which are available to the owner of the vehicle. This application was rejected by the learned court below by the impugned order. Feeling aggrieved by the said order this revision has been filed. 3. During the hearing of this revision none appeared on behalf of the respondents No. 3 and 4 who are the owner and the driver of the alleged offending vehicle. The claimants (respondents No. 1 and 2 herein) only appeared and contested the petition on the ground that the revision is not maintainable as the only remedy available to the aggrieved person is an appeal u/s 175 of the Motor Vehicles Act against the final award passed by the Tribunal. He further contended that there was no collusion between the owner of the alleged offending vehicle and the claimant, therefore, the learned court below was perfectly within his power to reject the application u/s 170 of the Motor Vehicles Act and the impugned order does not suffer from any error, illegality or irregularity and as such the revision deserve rejection. 4. I have heard the learned Counsel for the parties at length and perused the record of the case. 5. So far as the maintainability of this revision is concerned it is no more res Integra. 4. I have heard the learned Counsel for the parties at length and perused the record of the case. 5. So far as the maintainability of this revision is concerned it is no more res Integra. Full Bench of this Court in case of Kamla Yadav v. Smt. Shushma Devi and Ors. 2004 (22) LCD 40, has ruled that an order passed by the Motor Accident Claims Tribunal is amenable to the revisional jurisdiction of the High Court u/s 115 of the Code of Civil Procedure. Thus, the objection regarding the maintainability of this revision has no merit. 6. So far as the legality and propriety in the impugned order is concerned, it reveals from the perusal of the record that an application was moved by the insurance company at initial stage u/s 170 of the Motor Vehicles Act for permitting him to contest the claim on all grounds which are available to the owner of the vehicle but this application was rejected stating therein that the owner of the alleged offending vehicle had filed written statement. Subsequent thereto, when claimant examined three witnesses and the owner of the alleged vehicle did not turn up after filing his written statement to cross-examine these witnesses, the present application u/s 170 of the Motor Vehicles Act was moved by insurance company for permission to contest the claim on all the grounds stating therein that it is evident from the record that the owner of the vehicle is not contesting the claim and as such it is necessary to accord permission to the insurance company to contest the claim on all those grounds which are available to the owner of the vehicle. This application was also rejected by the impugned order by the learned Tribunal. It reveals from the record that after filing the written statement, the owner of the alleged offending vehicle had not turned up to contest the claim and even he was not present when claimant examined his witnesses in support of his petition. Thus, the owner of the offending vehicle had absented himself from the legal proceedings. Mere filing of written statement, is not sufficient to hold that the owner of the vehicle is contesting the claim. Thus, the owner of the offending vehicle had absented himself from the legal proceedings. Mere filing of written statement, is not sufficient to hold that the owner of the vehicle is contesting the claim. The filing of the written statement is of no avail if the owner does not produce the evidence in support of the facts stated in the written statement and fails to cross-examine the witnesses produced by the claimant, as happened in this case. Thus, it is apparent that there was no genuine and effective contest of the claimant on behalf of the owner of the alleged offending vehicle and in these circumstances, it was necessary to accord permission to the insurance company to contest the claim on all grounds which were available to the owner of the offending vehicle but the learned Tribunal did not do so and summarily without giving reasons, rejected the application of the insurance company. Thus, if the order is allowed to remain, it may cause irreparable injury to the insurance company as he will not be able to contest the claim on all grounds which are available to the owner of the vehicle particularly when owner of the vehicle has failed to contest the claim. 7. In view of the above, the impugned order cannot be sustained and is liable to set aside. The revision is, therefore, allowed the impugned order passed by the learned Tribunal, is hereby set aside. The application u/s 170 of the Motor Vehicles Act moved by the insurance company to contest the claim on all the grounds which are available to the owner of the vehicle, is hereby allowed. The learned trial court is directed to recall the witnesses testified by the claimant and to give an opportunity to the insurance company to cross-examine the witness and to afford further opportunity to insurance company to adduce the evidence which he deems proper to adduce. No order as to costs.