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2014 DIGILAW 1345 (RAJ)

Hari Singh v. Anita Devi

2014-07-07

ALOK SHARMA

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JUDGMENT 1. - This miscellaneous appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter `the 1988 Act') has been filed by the appellants-non-claimants-owners of Tractor No.RJ-05/2R-2271 (hereinafter `the owners') against the award dated 21-11-2011 passed by the learned Motor Accident Claims Tribunal Deeg in MACT Case No.86/2007 (hereinafter `the Tribunal'), whereby the learned Tribunal while determining the amount of compensation to be paid to claimants absolved the Insurance company from its liability to pay compensation, while holding the owners of the vehicle aforesaid liable along with its driver to pay compensation to the respondent claimants (hereinafter `the claimants'). The prayer of the owners in the appeal is that their liability to pay compensation jointly and severally be set aside as directed by the Tribunal in its award dated 21-11-2011. It has been submitted that non-claimant No.1 Veerbhan Singh, was the driver of the offending tractor No.RJ-05/2R-2271, involved in the accident of 19-4-2007, and the New India Insurance Company with whom the offending tractor was insured be held liable for payment of compensation determined by the Tribunal to the claimants. It has been prayed in the alternative that respondent No.9 the insurance company be held liable to indemnify the amount of compensation to be paid to the claimants by the owners. 2. Heard learned counsel for the owners and perused the impugned award dated 21-11-2011. 3. From the facts of the case, it transpires that in the accident of 19-4- 2007, involving tractor No.RJ-05/2R-2271 insured with the New India Insurance Company one Devendra and one Prem Singh had died. The legal representatives of Devendra, and the legal representatives of Prem Singh, who died in the accident of 19-4-2007 filed claim petitions No.86/2007 and 87/2007 under Section 166 of the 1988 Act before the Additional District and Sessions Judge No.1 Deeg District Bharatpur. On service of notice on the claim petitions, the same were opposed by the insurance company. The legal representatives of Devendra, and the legal representatives of Prem Singh, who died in the accident of 19-4-2007 filed claim petitions No.86/2007 and 87/2007 under Section 166 of the 1988 Act before the Additional District and Sessions Judge No.1 Deeg District Bharatpur. On service of notice on the claim petitions, the same were opposed by the insurance company. On the pleadings of parties following issues were framed by the Tribunal:- " 1- vk;k iz'uxr okgu la[;k vkj ts 05&2 vkj&2271 ds pkyd foi{kh la[;k 1 ds }kjk fnukad 19-4-2007 dks le; 10-30 ih0,e0 Mh&xksj/ku jksM+ eksgjk ds ikl mDr okgu dks mis{kk@mrkoysiu ls pykdj dh x;h nq?kZVuk esa vkbZ pksVksa ds ifj.kkeLo:i nsosUnz mQZ nsoks o izse flag dh e`R;q gqbZ\ 2- vk;k mDr okgu pkyd rc mDr okgu Lokeh vizkFkhZ la[;k 2 o 3 ds fu;kstu esa gksdj mlh ds fgrkFkZ ,oa ykHkkFkZ dk;Z dj jgk Fkk\ 3- vk;k foi{kh la[;k 4 chek daiuh }kjk vius fyf[kr dFku dh izkjafHkd vkifRr;ksa ,oa fo'ks"k dFku ds en~ns utj vius nkf;Ro ls eqDr gks ldrh gS vkSj ugha rks bldk izHkko\ 4- vk;k nkosnkj vius nkok esa vafdr iz'uxr jkf'k ;k vU; dksbZ U;k; lEer jkf'k ik ldk gS] gkWa rks dkSu&dkSu nkosnkj fdruh&fdruh jkf'k fdl&fdl foi{kh ls o fdl izdkj ik ldrs gSa\ 5- vuqrks"k\ " 4. On issue No.1 the learned Tribunal in its award dated 17-11-2009 found that Veerbhan Singh, the Driver of the tractor No.RJ-05/2R-2271, had driven tractor rashly and negligently and caused an accident resulting in death of Devendra and Prem Singh, who were travelling on the tractor itself. In the circumstances, in respect of issue No.3, relating to liability of the insurance company, with which the offending tractor No.RJ-05/2R- 2271 was insured, the Tribunal found that at the time of accident it was being driven contrary to terms and conditions of the policy of insurance, inasmuch as against the contract of insurance, the tractor insured only for agricultural operations with premium paid only for the driver of the tractor was ferrying the deceased. This entailed breach of the conditions of the policy issued by the insurance company by the insured entitling the insurance company to avoid its liability to pay compensation for death of Devendra and Prem Singh. This entailed breach of the conditions of the policy issued by the insurance company by the insured entitling the insurance company to avoid its liability to pay compensation for death of Devendra and Prem Singh. Issues No.4 and 5, pertaining to the compensation payable to the claimants were decided in favour of the claimants and against the driver and owners of the offending tractor and a sum of Rs. 4,58,000/- was found payable to the dependents of Devendra and Rs. 4,43,000/- to the dependents of Prem Singh as compensation. Interest at the rate of 7% per annum on the compensation was also awarded with effect from the date of filing claim petition till the date of payment of compensation. 5. Aggrieved of the award dated 17-11-2009, the owners of the offending tractor No.RJ-05/2R-2271 approached this court by filing S.B. Civil Miscellaneous Appeal No.587/2010. The said appeal was decided on 21-4-2011, where under this court directed as under:- "(1) The award dated 17-11-2009 passed by learned MACT (AD&SJ No.1 Deeg District Bharatpur in MACT No.86/2007 is quashed and set aside qua issue No.1&2. (2) The matter is remanded to the Learned Tribunal with the direction to decide the same in the light of aforesaid judgments as cited by the learned counsel for both the parties within a period of six weeks from the date of appearance of both the parties. (3) both the parties are directed to appear before the learned Tribunal on 17-10-2011." 6. Subsequent to the limited remand of the matter to the Tribunal under the judgment of this court on 21-4-2011 only on issues No.1 and 2, the learned Tribunal reiterated its conclusions thereon and vide award dated 17-11-2009, found the driver and owners of the offending tractor liable to pay compensation as earlier determined to the claimants owing to accident of 19-4-2007 consequent to the rash and negligent driving of the offending tractor No.RJ-05/2R-2271 leading to the death of Devendra and Prem Singh. 7. In the aforesaid factual context, in my considered opinion, this appeal seeking to have the respondent insurance company held liable for payment of compensation determined by the Tribunal is completely misdirected and without merit. It is clear that vide order dated 21-4- 2011, in SB Civil Miscellaneous Appeal No.587/2010, the case was remanded limited to issues No.1 and 2. 7. In the aforesaid factual context, in my considered opinion, this appeal seeking to have the respondent insurance company held liable for payment of compensation determined by the Tribunal is completely misdirected and without merit. It is clear that vide order dated 21-4- 2011, in SB Civil Miscellaneous Appeal No.587/2010, the case was remanded limited to issues No.1 and 2. This court had in its order of 21-4- 2011 not thought it proper to set aside the conclusion of the Tribunal in its award dated 17-11-2009 with regard to issue No.3, whereby the insurance company was absolved of its liability to pay compensation to claimants owing to the breach of conditions of the policy of insurance in the use of the offending tractor No.RJ-05/2R-2271. Consequently the findings of the Tribunal in the award dated 17-11-2009 on issue No.3 became final. Challenge to the said finding, now in this civil miscellaneous appeal impugning the award dated 21-11-2011 cannot be sustained in view of the principle of res judicata.Therefore, I find no force in this civil miscellaneous appeal. Dismissed.Appeal dismissed. *******