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Rajasthan High Court · body

2011 DIGILAW 204 (RAJ)

Fakruddin v. National Insurance Company Ltd.

2011-01-28

MAHESH CHANDRA SHARMA

body2011
JUDGMENT 1. - This appeal has been filed against the order dated 20th March, 2002 passed by the Motor Accents Claims Tribunal, Jaipur City, Jaipur whereby the claim petition filed by the claimants for the death of Smt. Kulsum was allowed and ` 1,50,000/- were awarded to the claimants. 2. Brief facts of the case that on 4th October, 1996 Smt Kulsum, Saleem, Ram Niwas, Nathu Lal and other passengers were going by Jeep No. RJ 14 T 6201. The driver of the Jeep was driving it in a rash and negligent manner because of which the Jeep collided with a truck No. DL 1 G J 8841 which was parked near the brief of Dahami Kalan. Because of this collision Smt. Kulsum died and Saleem, Ram Niwas and Nathu Lal sustained injuries. The claimants for the death of Smt. Kulsum claimed a sum of ` 9,10,000 under different heads. During the tendency of the claim petition the name of the claimant respondent No. 1 Jeevan Ram @ Ram Jeevan was deleted from the array of the respondents as prayed by the claimants. It has been stated that the appellants 1 and 2 who are respondents 2 and 4 in the claim petitions were served but on account of non-appearance by them, the ex parte were drawn against them by the Tribunal. The appellant No. 1 stated in the appeal that the notice of the claim petition was served upon him and he immediately contacted the office of the Insurance Company with which the jeep of the appellant was insured. The officers of the insurance Company checked the relevant papers and assured him and appellant No. 2 that their documents are in order, hence their liability is fully covered by the insurance policy. It is also stated that in the claim petition the interest of the appellants and interest of the Insurance Company is the same hence the Counsel appearing on behalf of the Insurance Company will take care of their interest also. On this assurance the appellant No. 1 did not appear before the Tribunal. As per the order sheets one Shri R.K. Sharma, Advocate had given undertaking on behalf of the appellant No. 1 and later on he did not appear before the Tribunal and hence, ex parte proceedings were drawn against the appellant No. 1. On this assurance the appellant No. 1 did not appear before the Tribunal. As per the order sheets one Shri R.K. Sharma, Advocate had given undertaking on behalf of the appellant No. 1 and later on he did not appear before the Tribunal and hence, ex parte proceedings were drawn against the appellant No. 1. In the appeal it was stated that no notice was served on the appellant No. 2, but in the proceedings of the claim petition ex parte proceedings No. 2 but in the proceeding of the claim petition ex parte proceeding were initiated against him also. In, these circumstances it was stated that they could reply to the claim petition. The Insurance Company filed its separately reply to the claim petition in which plea of breach of policy condition was raised and it was stated that the Insurance Company could not be liable to pay compensation to the claimant respondent. Three claim petitions arising out of the same accident were also filed. All the claim petitions were consolidated and have been decided by the same award. On the basis of the pleadings of both the sides relevant issues were framed by Tribunal. Three witnesses were examined on behalf of the claimants in all the cases. Two witnesses were examined on behalf of the Insurance Company. The Tribunal decided issue No. 1 in the manner that the accident had occurred because of rash and negligent driving by respondent No. 2. Issue No. 2 was decided in the manner that the respondent No. 2 was driving the jeep under the employment of the appellants. Issue No. 3 was decided in the manner that the driving license of the respondent No. 2 was for light Motor Vehicles only whereas he was driving a Commercial Vehicle for which he was not authorised, hence it is a breach of policy condition on the part of the appellants. The Tribunal further held that the respondent Insurance Company shall pay the amount of compensation to the claimant respondent and can recover this amount from the appellants. 3. I have heard the learned Counsel for the parties on the application under Section 5 of the Limitation Act and also on the appeal filed by the appellants. 4. The Tribunal further held that the respondent Insurance Company shall pay the amount of compensation to the claimant respondent and can recover this amount from the appellants. 3. I have heard the learned Counsel for the parties on the application under Section 5 of the Limitation Act and also on the appeal filed by the appellants. 4. The learned Counsel for the appellants urged that the delay in filing the appeal may be condoned as the appellants came to know about the order of the MACT when they received the notice of the appeal filed by one of the claimant for enhancement of compensation. 5. The learned Counsel for the Insurance Company vehemently opposed the arguments of the appellants and stated that the appellants have not even congested the claim petition and the MACT proceeded ex parte against them by them by taking a requisite step. No, proper reason has been given by the appellants for condoning the delay. Hence, the application for condonation of delay and the appeal both are liable to be rejected. 6. Admittedly the appellants filed the instant appeal on 5th June, 2004 whereas the award was passed by the MACT on 20th March, 2002. Admittedly the notice of the claim petition was served upon the appellants and one Shri R.L. Sharma appeared on their behalf before the MACT. The ex parte proceeding before the MACT were not challenged by the appellants and directly the have filed the appeal against the award of the Tribunal dated 20th March, 2002. The Registry of this Court pointed out that the appeal has been filed after a delay of 717 days. The appellants filed application under Section 5 of the Limitation Act stating therein that on 28th May, 2004 they received a notice in S.B. Civil Misc. Appeal No. 1122/2002 filed by one Ram Niwas, one of claimant for enhancement of compensation. On receipt of this notice the appellants contacted advocate on 31st June, 2004. In the application the appellants have not been able to point out any specific reason for which they have not per sue the claim petition filed against them and they have also not taken any steps against the ex parte proceedings taken against them by the MACT. In the absence of any specific reason the application for condonation of delay filed by the appellants cannot be considered. In the absence of any specific reason the application for condonation of delay filed by the appellants cannot be considered. On merits also the appellants have not been able to point out whether the driver of the jeep was having a licence of commercial vehicle. In absence of requisite reply this Court is not in a position to condone the delay of 717 days in filing the appeal. The application under Section 5 of the Limitation Act being devoid of merit stands rejected. On merits also the appellants have not been able to point out whether the driver of the jeep was having a commercial vehicle licence with him. Thus, the appeal filed by the appellants also stands rejected. 7. For these reasons the application for condonation of delay and the appeal being devoid of merit stand rejected. The stay application also stands rejected.Application Rejected. *******