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2014 DIGILAW 505 (JHR)

Oriental Insurance Company Ltd. v. Kewali Devi

2014-04-15

D.N.UPADHYAY

body2014
ORDER This Miscellaneous Appeal has been directed against the judgment/ award dated 23.7.2008 passed by 1st Additional District Judge, Giridih-cum Motor Vehicle Accident Claim Tribunal, Giridih in connection with Claim Case No. 6 of 2003, whereby the claimant has been directed to be paid Rs. 2,74,184/-including interest @ 6% per annum i.e. Rs. 1,93,747/-(compensation amount) + Rs. 80437/-(interest till date of judgment) in lieu of the death of her son Ambika Rajak. 2. The facts in brief is that on 19.11.2001 at about 20.15 hours, the deceased Ambika Rajak was going to Jamshedpur by his Hero Honda motorcycle bearing registration No. WB38G-2986 along with his relative Niraj. It is disclosed that near village Shankardih on National Highway No. 23, a truck bearing registration No. HR38BG-6244 being driven rashly and negligently coming from wrong direction, caused dash to the motorcycle, as a result Ambika Rajak and rider Niraj died. The respondent No. 1 who happens to be mother of the deceased filed an application for grant of compensation vide Claim Case No. 6 of 2003 and the learned Tribunal after adjudicating the matter passed impugned judgment. 3. The learned counsel, appearing for the appellant insurance company, has submitted that the owner of the truck, respondent No. 2 did not appear before the Tribunal and he did not file vehicular documents including driving license of the driver who was driving the vehicle at the time of accident. Since the Tribunal has passed the impugned judgment without considering vehicular documents, the appellant being aggrieved filed this appeal. Since no vehicular document produced, the appellant could not get opportunity to go through and therefore he was not in a position to raise grievance whether the insured has violated the terms and conditions of the policy or not. Last but not the least, it is contended that recovery right may be given to the appellant so that the amount may be recovered from owner of the vehicle. 4. On the other hand, learned counsel, appearing for the respondent No. 2 (owner of the vehicle), has submitted that he did not receive any notice and therefore he did not appear before the tribunal. 4. On the other hand, learned counsel, appearing for the respondent No. 2 (owner of the vehicle), has submitted that he did not receive any notice and therefore he did not appear before the tribunal. It is submitted that the driver of the offending vehicle also died in the accident and therefore it is not possible to produce the driving license, but so far as the other documents are concerned, he is ready to produce and prove the same. It is further contended that the vehicle was duly insured and therefore the Tribunal has rightly passed the impugned judgment directing the appellant insurance company to satisfy the awarded amount. 5. Learned counsel, appearing for claimant/respondent No. 1, has submitted that she is suffering since long. The claimant lost her son in the year 2001 and even after 13 years, she did not receive compensation amount. If the dispute between the insurance company and owner of the vehicle prevails further, she shall not be made party to that litigation and the compensation amount may be directed to be paid by the appellant insurance company. 6. Admittedly, the owner of the vehicle did not appear may be due to lack of proper service of notice, but the facts remain if the litigation further prevails between the owner of the vehicle and the appellant insurance company, he should be given liberty to plead his case by producing vehicular documents. 7. The insurance company has challenged the impugned judgment mainly on the ground that without perusing vehicular documents, they can't say whether the insured has violated the terms of policy or not. In absence of such opportunity, being availed, the impugned award has been passed. The appellant did not get opportunity to lay his claim against the insured (owner of the vehicle) in absence of vehicular documents. 8. Be that as it may, the claimant should not suffer in this dispute cropped-up between insurer and insured and therefore, the appellant insurance company is directed to pay the awarded amount with 6% interest per annum to be calculated till the date of final payment through account payee cheque drawn in favour the claimant within two months from today. 8. Be that as it may, the claimant should not suffer in this dispute cropped-up between insurer and insured and therefore, the appellant insurance company is directed to pay the awarded amount with 6% interest per annum to be calculated till the date of final payment through account payee cheque drawn in favour the claimant within two months from today. The case is remanded back to the Tribunal for deciding the issue; Whether the offending vehicle was equipped with valid document to ply on the date of incident at the place where the incident took place and whether the insured has violated the terms and conditions of the policy or not. The appellant insurance company as well as the respondent No. 2, owner of the vehicle, are directed to appear before the Tribunal within 45 days from today and the owner shall be at liberty to file show cause with copy of vehicular documents to contest the issue indicated above and both the parties shall get further opportunity to adduce evidence in support of their claims. It is further made clear that the Tribunal shall be at liberty to decide the issue independently without being influenced with the earlier observations made by the Tribunal and the finding of the Tribunal shall be fresh on the issue indicated above. If the appellants insurance company shall succeed in proving that the respondent owner has violated the terms and conditions of the policy then the Tribunal shall be at liberty to pass appropriate order in that regard. It is further made clear that the claimant shall not be a party to the case on remand and she is hereby exempted from appearing in the court below. With these observations, this matter is remanded to the Tribunal for the limited issue indicated above and the other part of the judgment with regard to the calculation of the compensation amount stands upheld. Ordered accordingly.