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2013 DIGILAW 354 (HP)

IQBAL KAUR v. NEW INDIA ASSURANCE COMPANY LIMITED

2013-04-26

KULDIP SINGH, SANJAY KAROL

body2013
JUDGEMENT KULDIP SINGH, J. 1. THIS judgment shall dispose of CWP Nos.8957 of 2012-F, 9002 of 2012-A, 9097 of 2012-J, 9100 of 2012-A, 9139 of 2012-D, and 9140 of 2012-D, as common question of law is involved in all the petitions. 2. IN CWP No.8957 of 2012-F, the petitioner has prayed mainly the following reliefs:- (i) That writ of certiorari may kindly be issued, quashing and setting the impugned award dated 28.4.2009 ( Annexure P-1 ) passed by the Ld. Motor Accident Claims Tribunal (1) Mandi, H.P. in light of Annexure P-3 to P-6, since as per Annexure P-3 to P-6, the Insurance Company Respondent No.1 has admitted that the driving licence of the driver-proforma respondent was valid one and the vehicle was being driven as per the terms and conditions of the Insurance Policy and the company has paid the OD claim to the petitioner, but while contesting the claim petition, the respondent company has changed its stand, which is against the law, since Respondent Company cannot take two different stands for one accident between the same vehicle and parties and the Ld. Tribunal below has not appreciated these facts on record. (ii) That writ of mandamus may kindly be issued, directing the Ld. Tribunal below to decide the claim petition in light of the actual facts and circumstances of the case, which reveals from Annexure P-3 to P-6. One Tulawati had filed a Claim Petition No.89 of 2004 before learned Motor Accident Claims Tribunal Mandi against Iqbal____________________ Yes Whether the reporters of the local papers may be allowed to see the Judgment?. Kaur petitioner herein and two others namely Ram Pal and New India Insurance Company. The petition was allowed by learned Tribunal on 28.4.2009 and a award of Rs.1,62, 228/- alongwith interest at the rate of 7.5% per annum from the date of filing of the petition till realization was passed in favour of the petitioner and respondent therein. The respondent No.3 Insurance Company was directed to deposit the award amount after adjustment of the interim compensation amount, if any. The respondent No.3 after payment of amount of compensation to the petitioner therein was held entitled to recover the amount from respondents No.1,2 therein, owner and driver of Vehicle No.PB-12-F-8972. 3. The respondent No.3 Insurance Company was directed to deposit the award amount after adjustment of the interim compensation amount, if any. The respondent No.3 after payment of amount of compensation to the petitioner therein was held entitled to recover the amount from respondents No.1,2 therein, owner and driver of Vehicle No.PB-12-F-8972. 3. IN CWP No.9002 of 2012-A, the petitioner has prayed mainly the following reliefs:- (i) That writ of certiorari may kindly be issued, quashing and setting the impugned award dated 8.5.2009 ( Annexure P-1 ) passed by the Ld. Motor Accident Claims Tribunal (1) Mandi, H.P. in light of Annexure P-3 to P-6, since as per Annexure P-3 to P-6, the Insurance Company Respondent No.1 has admitted that the driving licence of the driver-proforma respondent was valid one and the vehicle was being driven as per the terms and conditions of the Insurance Policy and the company has paid the OD claim to the petitioner, but while contesting the claim petition, t e respondent company has changed its stand, which is against the law, since Respondent Company cannot take two different stands for one accident between the same vehicle and parties and the Ld. Tribunal below has not appreciated these facts on record. (ii) That writ of mandamus may kindly be issued, directing the Ld. Tribunal below to decide the claim petition in light of the actual facts and circumstances of the case, which reveals from Annexure P-3 to P-6. 4. KUMARI Heena had filed Claim Petition No.88 of 2004 before learned Motor Accident Claims Tribunal Mandi, H.P against Iqbal Kaur, petitioner herein and two others namely Ram Pal and New India Insurance Company. The petition was allowed by learned Tribunal on 8.5.2009 and a award of Rs.15,000/- alongwith interest at the rate of 7.5% per annum from the date of filing of the petition till realization was passed in favour of the petitioners and respondent therein. The respondent No.3 Insurance Company was directed to deposit the award amount after adjustment of the interim compensation amount, if any. The respondent No.3 after payment of amount of compensation to the petitioners therein was held entitled to recover the amount from respondents No.1,2 therein, owner and driver of Vehicle No.PB-12-F-8972. The respondent No.3 Insurance Company was directed to deposit the award amount after adjustment of the interim compensation amount, if any. The respondent No.3 after payment of amount of compensation to the petitioners therein was held entitled to recover the amount from respondents No.1,2 therein, owner and driver of Vehicle No.PB-12-F-8972. In CWP No. 9097 of 2012-J the petitioner has prayed mainly the following reliefs:- (i) That writ of certiorari may kindly be issued, quashing and setting the impugned award dated 8.5.2009 ( Annexure P-1 ) passed by the Ld. Motor Accident Claims Tribunal (1) Mandi, H.P. in light of Annexure P-3 to P-6, since as per Annexure P-3 to P-6, the Insurance Company Respondent No.1 has admitted that the driving licence of the driver-proforma respondent was valid one and the vehicle was being driven as per the terms and conditions of the Insurance Policy and the company has paid the OD claim to the petitioner, but while contesting the claim petition, the respondent company has changed its stand, which is against the law, since Respondent Company cannot take t o different stands for one w accident between the same vehicle and parties and the Ld. Tribunal below has not appreciated these facts on record. (ii) That writ of mandamus may kindly be issued, directing the Ld. Tribunal below to decide the claim petition in light of the actual facts and circumstances of the case, which reveals from Annexure P-3 to P-6. 5. KRISHAN Kumar, Pankaj and Miss Heena had filed Claim Petition No. 80 of 2004 before learned Motor Accident Claims Tribunal Mandi, H.P against Iqbal Kaur, petitioner herein and two others namely Ram Pal and New India Insurance Company. The petition was allowed by learned Tribunal on 8.5.2009 and a award of Rs.4,65,000/- alongwith interest at the rate of 7.5% per annum from the date of filing of the petition till realization was passed in favour of the petitioner s and respondent therein. The award was apportioned amongst the petitioners as follows:- Rs.2,79,000-00 Petitioner No.1 : Rs.93,000-00 Petitioner No.2 : : Rs.93,000-00 Petitioner No.3 The respondent No.3 Insurance Company was directed to deposit the award amount after adjustment of the interim compensation amount, if any. The respondent No.3 after payment of amount of compensation to the petitioners therein was held entitled to recover the amount from respondents No.1,2 therein, owner and driver of Vehicle No.PB-12-F-8972. 6. The respondent No.3 after payment of amount of compensation to the petitioners therein was held entitled to recover the amount from respondents No.1,2 therein, owner and driver of Vehicle No.PB-12-F-8972. 6. IN CWP No.9100 of 2012-A, the petitioner has prayed mainly the following reliefs:- (i) That writ of certiorari may kindly be issued, quashing and setting the impugned award dated 28.4.2009 ( Annexure P-1 ) passed by the Ld. Motor Accident Claims Tribunal (1) Mandi, H.P. in light of Annexure P-3 to P-6, since as per Annexure P-3 to P-6, the Insurance Company Respondent No.1 has admitted that the driving licence of the driver-proforma respondent was valid one and the vehicle was being driven as per the terms and conditions of the Insurance Policy and the company has paid the OD claim to the petitioner, but while contesting the claim petition, the respondent company has changed its stand, which is against the law, since Respondent Company cannot take two different stands for one accident between the same vehicle and parties and the Ld. Tribunal below has not appreciated these facts on record. (ii) That writ of mandamus may kindly be issued, directing the Ld. Tribunal below to decide the claim petition in light of the actual facts and circumstances of the case, which reveals from Annexure P-3 to P-6. Kumari Babita had filed Claim Petition No. 92 of 2004 before learned Motor Accident Claims Tribunal Mandi, H.P against Iqbal Kaur, petitioner herein and two others namely Ram Pal and New India Insurance Company. The petition was allowed by learned Tribunal on 28.4. 2009 and a award of Rs.1,58,000/- alongwith interest at the rate of 7.5% per annum from the date of filing of the petition till realization was passed in favour of the petitioners and respondent therein. The respondent No.3 Insurance Company was directed to deposit the award amount after adjustment of the interim compensation amount, if any. The respondent No.3 after payment of amount of compensation to the petitioners therein was held entitled to recover the amount from respondents No.1,2 therein, owner and driver of Vehicle No.PB-12-F-8972. 7. IN CWP No9139 of 2012-D, the petitioner has prayed mainly the following reliefs:- (i) That writ of certiorari may kindly be issued, quashing and setting the impugned award dated 28.4.2009 ( Annexure P-1 ) passed by the Ld. 7. IN CWP No9139 of 2012-D, the petitioner has prayed mainly the following reliefs:- (i) That writ of certiorari may kindly be issued, quashing and setting the impugned award dated 28.4.2009 ( Annexure P-1 ) passed by the Ld. Motor Accident Claims Tribunal (1) Mandi, H.P. in light of Annexure P-3 to P-6, since as per Annexure P-3 to P-6, the Insurance Company Respondent No.1 has admitted that the driving licence of the driver-proforma respondent was valid one and the vehicle was being driven as per the terms and conditions of the Insurance Policy and the company has paid the OD claim to the petitioner, but while contesting the claim petition, the respondent company has changed its stand, which is against the law, since Respondent Company cannot take two different stands for one accident between the same vehicle and parties and the Ld. Tribunal below has not appreciated these facts on record. (ii) That writ of mandamus may kindly be issued, directing the Ld. Tribunal below to decide the claim petition in light of the actual facts and circumstances of the case, which reveals from Annexure P-3 to P-6. 8. GAURAV Verma had filed Claim Petition No. 90 of 2004 before learned Motor Accident Claims Tribunal Mandi, H.P against Iqbal Kaur, petitioner herein and two others namely Ram Pal and New India Insurance Company. The petition was allowed by learned Tribunal on 28.4.2009 and a award of Rs.73,457/- alongwith interest at the rate of 7.5% per annum from the date of filing of the petition till realization was passed in favour of the petitioners and respondent therein. The respondent No.3 Insurance Company was directed to deposit the award amount after adjustment of the interim compensation amount, if any. The respondent No.3 after payment of amount of compensation to the petitioners therein was held entitled to recover the amount from respondents No.1,2 therein, owner and driver of Vehicle No.PB-12-F-8972. In CWP No.9140 of 2012-D, the petitioner has prayed mainly the following reliefs:- (i) That writ of certiorari may kindly be issued, quashing and setting the impugned award dated 8.5.2009 (Annexure P-1) passed by the Ld. In CWP No.9140 of 2012-D, the petitioner has prayed mainly the following reliefs:- (i) That writ of certiorari may kindly be issued, quashing and setting the impugned award dated 8.5.2009 (Annexure P-1) passed by the Ld. Motor Accident Claims Tribunal (1) Mandi, H.P. in light of Annexure P-3 to P-6, since as per Annexure P-3 to P-6, the Insurance Company Respondent No.1 has admitted that the driving licence of the driver-proforma respondent was valid one and the vehicle was being driven as per the terms and conditions of the Insurance Policy and the company has paid the OD claim to the petitioner, but while contesting the claim petition, the respondent company has changed its stand, which is against the law, since Respondent Company cannot take two different stands for one accident between the same vehicle and parties and the Ld. Tribunal below has not appreciated these facts on record. (ii) That writ of mandamus may kindly be issued, directing the Ld. Tribunal below to decide the claim petition in light of the actual facts and circumstances of the case, which reveals from Annexure P-3 to P-6. 9. PANKAJ Verma had filed Claim Petition No.87 of 2004 before learned Motor Accident Claims Tribunal Mandi, H.P against Iqbal Kaur, petitioner herein and two others namely Ram Pal and New India Insurance Company. The petition was allowed by learned Tribunal on 8.5.2009 and a award of Rs.90,000/- alongwith interest at the rate of 7.5% per annum from the date of filing of the petition till realization was passed in favour of the petitioners and respondent therein. The respondent No.3 Insurance Company was directed to deposit the award amount after adjustment of the interim compensation amount, if any. The respondent No.3 after payment of amount of compensation to the petitioners therein was held entitled to recover the amount from respondents No.1,2 therein, owner and driver of Vehicle No.PB-12-F-8972. 10. IN order to avoid repetition, the further facts are taken from CWP No.8957 of 2012-F. According to petitioner on 4.5.2000 her vehicle No.PB-12-F-8972 met with an accident which was being driven by Ram Pal. The said vehicle met with an accident with Car No.HP-03-1266 which was owned by Tulawati. 10. IN order to avoid repetition, the further facts are taken from CWP No.8957 of 2012-F. According to petitioner on 4.5.2000 her vehicle No.PB-12-F-8972 met with an accident which was being driven by Ram Pal. The said vehicle met with an accident with Car No.HP-03-1266 which was owned by Tulawati. In the Car at that time of accident 11 persons were sitting, out of them 8 persons sustained injuries and 8 claim petitions as follows were filed:- (i) Claim Petition No.78/2004 (ii) Claim Petition No.90/2004 (iii) Claim Petition No.91/2004 (iv) Claim Petition No.92/2004 (v) Claim Petition No.80/2004 (vi) Claim Petition No.89/2004 (vii) Claim Petition No.87/2004 (viii) Claim Petition No.88/2004 The aforesaid claim petitions were decided by learned Motor Accident Claims Tribunal (1), Mandi. The compensation amount was ordered to be deposited by Insurance Company and thereafter the Insurance Company was permitted to recover the amount from the petitioner and Ram Pal. The awards passed by learned Tribunal have been assailed in the petitions under Articles 226/227 of the Constitution of India. 11. THE learned counsel for respondent No.1 has submitted that Insurance Company had filed execution petitions against the petitioner. The petitioner filed CMPMO Nos.344 of 2012, 346 of 2012, 342 of 2012, 345 of 2012 and 343 of 2012 in execution petitions Nos.31/ 2010, 34/2010, 32/2010, 35/2010 and 29/2010, arising of out of claim petition Nos.89/2004, 80/2004, 92/2004, 90/2004 and 87/2004 respectively. These CMPMOs were dismissed by the High Court on 29.11.2012. The petitioner has not availed the remedy of appeal. The petitions have been filed nearly after 3 1/2 years of the awards, therefore, the petitions are not maintainable. 12. THE awards challenged in the above petitions were made in April/May, 2009. The petitions have been filed in October, 2012. In other words, the petitions were filed after about 3 1/2 years of the passing of the awards. The remedy of appeal under Motor Vehicles Act, 1988 was available to the petitioner but despite that the petitioner opted to file above petitions under Articles 226/227 of the Constitution of India. In Sadhana Lodh vs. National Insurance Co. In other words, the petitions were filed after about 3 1/2 years of the passing of the awards. The remedy of appeal under Motor Vehicles Act, 1988 was available to the petitioner but despite that the petitioner opted to file above petitions under Articles 226/227 of the Constitution of India. In Sadhana Lodh vs. National Insurance Co. Ltd. and another (2003) 3 SCC 524 , it has been held that the right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. In the present case, the petitioner had right to challenge the awards in accordance with law by filing appeal against the awards, but petitioner has not filed appeals against the impugned awards, therefore above petitions are not maintainable. 13. IN view of above, all the above petitions are dismissed, so also the pending application(s), if any.