Hemant Verma v. Ajay Singh and United India Insurance Co. Ltd.
2012-05-09
MOHAMMAD RAFIQ
body2012
DigiLaw.ai
RAFIQ, J.—For stated reasons, delay in filing appeal is condoned. Application under Section 5 of Limitation Act, 1963, for condonation of delay in filing appeal, stands allowed. 2. Counsel for claimant seeks dispensation of service of notice upon respondent no.1, who is driver and owner of offending vehicle, which is not opposed. Ordered accordingly. 3. Claimant has filed this appeal seeking deletion of condition of furnishing security by owner of offending vehicle before release of compensation to him, imposed by learned Additional District & Sessions Judge (Fast Track) No.6, Jaipur City, Jaipur, vide its award dated 22.08.2006 in MAC Case No.870/2004. 4. Only contention advanced by learned counsel for appellant is that after computation of compensation, since finding has been recorded regarding breach of insurance policy and recovery rights have been extended to insurer, imposition of condition for payment of compensation to claimant only after insured furnishes security, is not legally sustainable. However, the amount determined under the impugned award has neither been questioned nor disputed by either of the parties. 5. Learned counsel submits that after recovery rights have been extended to the insurer, incorporation of condition of release of amount of compensation only upon furnishing security by insured, who is owner and driver of offending vehicle, is not legally sustainable because furnishing of security by owner of offending vehicle is beyond control of claimants, as a result whereof despite his entitlement under impugned award in his favour, he will be deprived of compensation. While considering similar issue, this court set aside such condition in Kumari Nargis vs. Karan Singh (Civil Miscellaneous Appeal No.356/2005 and Others, decided on 22.08.2006), wherein it was observed that when amount of compensation is not disputed among the parties and recovery rights are also made available to the insurer and it is considered to be a decree, which can be executed by filing an application before Executing Court as ordered by the Supreme Court in New India Assurance Company Limited vs. Asha Rani – (2003) 2 SCC 223 = RLW 2003(2) SC 213, as discussed in National Insurance Co. Ltd. vs. Baljit Kaur – 2004 ACJ 428, such a rider and condition put under impugned award for release of determined compensation only on furnishing security by the insured is not legally sustainable. 6.
Ltd. vs. Baljit Kaur – 2004 ACJ 428, such a rider and condition put under impugned award for release of determined compensation only on furnishing security by the insured is not legally sustainable. 6. Learned counsel for respondent submits that if this condition is lifted and amount is released to claimants, it would be difficult for insurer to recover from the insured, despite their best efforts. 7. A coordinate bench of this court in Kumari Nargis vs. Karan Singh (Civil Miscellaneous Appeal No.356/2005 and Others, decided on 22.08.2006),considered similar issue and set aside such condition wherein it was observed that when amount of compensation is not disputed among the parties and recovery rights are also made available to the insurer and it is considered to be a decree, which can be executed by filing an application before Executing Court, as ordered by the Supreme Court in New India Assurance Company Limited vs. Asha Rani – (2003) 2 SCC 223 = RLW 2003(2) SC 213 and in National Insurance Company Limited vs. Baljit Kaur – 2004 ACJ 428, such a rider and condition put under impugned award for release of determined compensation only on furnishing security by the insured, is not legally sustainable. Reference may also be made to judgment of the Supreme Court in Oriental Insurance Company Limited vs. Shri Nanjappan and others – 2004 (1) WLC (SC) Civil 579. 8. In the light of above, this appeal stands allowed and condition of furnishing security by insured, who is owner and driver of offending vehicle, as put in impugned award, is set aside and the Tribunal is directed to disburse the amount to claimant in terms of impugned award. However, it is made clear that insurer will be free to recover the same from owner of offending vehicle in accordance with law as observed by the Tribunal.