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2010 DIGILAW 1284 (PAT)

Vinita Vijay Pandey v. New India Assurance Co.

2010-05-14

MUNGESHWAR SAHOO

body2010
JUDGEMENT 1. Heard the learned counsel Mr. Sanjay Singh for the appellant and the learned counsel Mr. Ashok Priyadarshi appearing on behalf of the respondent no. 1. 2. The owner-appellant has filed this Misc. Appeal against the order dated 27.8.2009 passed by Sri A.K. Sharan, learned 1st. Additional Motor Vehicle Accident Claim Tribunal, Muzaffarpur, in Claim Case No. 28/05 whereby the learned Tribunal while allowing the application under Section 140 of the M.V. Act directed the appellant owner to pay interim compensation of Rs. 50,000/- to the claimant. 3. The learned counsel for the appellant submitted that, in fact, a cover note was issued on 7.6.2004 for insurance but when the appellant reported about the accident dated 7.6.2004 the Insurance Company cunningly issued insurance policy covering risk from 9.6.2004 to 8.6.2005. The learned counsel further submitted that by suppressing the fact that this Honble Court has already decided question of liability under Section 140 of M.V. Act relating to the accident by Bus No. BR-06- P-6751 in M.A. No. 192/07 the Insurance Company obtained the order in M.A. No. 259/07. The learned counsel further submitted that cover note was filed which shows that the date of issue was 7.6.2004. The learned counsel further submitted that all these are matters of trial and according to the order passed by this Court in M.A. No. 192/07 the learned Tribunal should have decided the same at the trial and should have passed order under Section 140 of M.V. Act according to the order of this Court dated 30.9.2008 passed in M.A. No. 192/07. 4. On the other hand, the learned counsel for the respondent Insurance Company submitted that there is no question of presumption of fact. The learned Tribunal has considered all these submissions made by the learned counsel for the appellant. The order passed by this Court in M.A. No. 192 of 2007 and in M.A. No. 259/07 are similar in nature and there is no contradiction. On these grounds the learned counsel for the respondents submitted that the appeal is liable to be dismissed in limine. 5. It appears that earlier the learned Tribunal directed the Insurance Company to pay Rs. 50,000/- under the provisions of Section 140 of M.V. Act. The Insurance Company filed Misc. Appeal No. 259/07. By terms of order dated 12.5.2009 (Annexure-3). On these grounds the learned counsel for the respondents submitted that the appeal is liable to be dismissed in limine. 5. It appears that earlier the learned Tribunal directed the Insurance Company to pay Rs. 50,000/- under the provisions of Section 140 of M.V. Act. The Insurance Company filed Misc. Appeal No. 259/07. By terms of order dated 12.5.2009 (Annexure-3). This Court set aside the order and directed the learned Tribunal to consider the issue of payment of interim compensation afresh within a period of four weeks from the date of receipt of a copy of the order in the light of the observations made in the order. It appears that this Court while passing the order found that the learned Tribunal did not decide the contentious issues raised by the Insurance Company regarding the liability to pay compensation and passed the order in a routine and mechanical manner. 6. After remand by this Court this impugned order has been passed by the learned Tribunal. The learned counsel for the appellant submitted that this order was passed without noticing the appellant and the Insurance Company did not brought to the notice of this Court regarding the earlier order passed in M.A. No. 192/07. So far this submission is concerned from perusal of the record it appears that the appellant after getting the knowledge about the order passed by this Court in M.A. No. 259/07 did not file any revision/recall application on the ground that the appellant was not heard. But the appellant participated in the court below, and, therefore, he submitted to the jurisdiction of the Tribunal without raising any objection. Now, therefore, he cannot be allowed to turn round and say that the order was passed without notice to her. Moreover, while passing that order this Court as stated above found that since the order was passed in a routine and mechanical manner it was not sustainable in the eye of law. 7. It appears that the accident took place at about 5.30 P.M. on 7.6.2004 by Bus No. BR-06-P-6751 in which the claimants son was traveling. After remand the learned Tribunal looked into the covered note and insurance policy and found that the bus in question was insured by the company from 9.6.2004 to 8.6.2005 and, therefore, on the date of the accident, i.e., 7.6.2004 the Bus was not insured. After remand the learned Tribunal looked into the covered note and insurance policy and found that the bus in question was insured by the company from 9.6.2004 to 8.6.2005 and, therefore, on the date of the accident, i.e., 7.6.2004 the Bus was not insured. On these facts the learned Tribunal held that the appellant being the owner is liable to pay and not the Insurance Company. From the impugned order it appears that the learned court below has also considered the order passed in M.A. No. 192/07. From perusal of the said order it appears that this Court directed the Insurance Company to pay and given liberty to the Insurance Company to recover the said amount from the owner in case it is found that no such valid insurance exists in respect of the vehicle in question for the period of accident. Therefore, it cannot be said that pursuant to that order the learned Tribunal cannot decide this issue prior to trial of the case even if subsequently, this Court directed to decide the said issue. 8. It appears that the accident took place in 2004 and we are in the year 2010 six years have passed but still the applicant is not being paid the interim compensation for one reason or the other. 9. Considering the above facts and circumstances of the case I find no illegality in the impugned order and, therefore, I am not inclined to interfere with it. 10. In the result, I find no merit in this appeal and, accordingly, this Misc. Appeal is dismissed. The statutory amount of Rs. 25,000/- deposited by the appellant be transferred to the court below so that it may be handed over to the claimants. The appellant is further directed to deposit remaining amount of Rs. 25,000/- in the court below within one month from today.