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2015 DIGILAW 480 (TRI)

Babul Ch. Deb v. Jitendra Kumar Das

2015-07-06

S.TALAPATRA

body2015
Judgment : Heard Mr. D. C. Saha, learned counsel appearing for the petitioner as well as Mr. P. Gautam, learned counsel appearing for the respondent No.3. None appears for the respondent Nos.1 and 2 despite due notice from this Court. 02. By this petition filed under Article 227 of the Constitution of India the order dated 18.04.2011 delivered in Misc. (Review) No.234 of 2009 by the Motor Accident Claims Tribunal, West Tripura, Agartala has been questioned. 03. The petitioner herein is the registered owner of the vehicle being TR01A1604 (Truck) which was involved in the accident giving rise to filing of the claim under Section 166 of the M.V. Act, 1988 being TS (MAC) No.648 of 1999. 04. On culmination of inquiry, the Motor Accident Claims Tribunal awarded a sum of Rs.1,00,667/with 9% interest w.e.f. 23.12.1999 i.e. from the day of presentation of the claim petition. It has been further observed that if the compensation is not paid within 45 days, the said compensation shall carry interest @ 16% per annum from 23.12.1999. The liability of making the payment was fixed with the present petitioner as it has been observed as under: “The respondent no.1 did not turn up on receipt of the summons. No document of the vehicle or certificate of insurance produced before the Tribunal. So, Respondent no.1 is liable to make payment of the said compensation. The liability in the circumstances cannot be shifted on the Insurance Company.” 05. No other part of the judgment and award dated 04.10.2001 delivered in TS(MAC) No.648 of 1999 was under challenge in the petition filed by the opposite party No.1, the petitioner herein when he filed the application for review being Misc.(Review) No.234 of 2009 in the Motor Accident Claims Tribunal, Court No.3. Along with the said review petition, no insurance policy issued by the National Insurance Company Ltd., the respondent No.3 herein, had been placed in the tribunal, however the petitioner produced one photocopy of the letter issued by the National Insurance Company Ltd. addressed to the Manager, Tripura State Cooperative Bank, Battala Branch, Battala, Agartala, West Tripura enclosing one cheque bearing No.145378 dated 26.06.2000 amounting to Rs.2,50,000/. The said forwarding note containing the said cheque dated 26.06.2000 is available at AnnexureP/3. On the basis of that, the petitioner herein submitted that the said amount was reimbursed against the damages that the vehicle suffered in the referred accident. The said forwarding note containing the said cheque dated 26.06.2000 is available at AnnexureP/3. On the basis of that, the petitioner herein submitted that the said amount was reimbursed against the damages that the vehicle suffered in the referred accident. Hence it was contended that unless the vehicle is insured with the National Insurance Company, the National Insurance Company Ltd. should not have borne that liability. Even there was reference to a policy number. On that premises, the petitioner made endeavour to satisfy the tribunal that inference might be drawn that the vehicle was insured with the National Insurance Company Ltd. on the day of the accident. But the Tribunal refused to draw such inference and rejected the petition for review of the judgment and award dated 04.10.2001, so far the liability of making the payment is concerned. 06. Being aggrieved by that order rejecting the review petition dated 18.04.2011, this petition has been filed for exercising supervisory jurisdiction. By the order dated 22.04.2015, the respondent No.3 was directed by this Court to place on record the policy No.203000/1999/3611138 in the name of the petitioner as the reference of such policy has been gathered by this Court from the Annexure3, the forwarding note. 07. The National Insurance Company Ltd. in compliance to the order dated 22.04.2015 has filed an affidavit along with the records of the insurance being C. M. Appl. No.96 of 2015, wherefrom it is evident that the vehicle of the petitioner was insured with the National Insurance Company Ltd. by the policy No.1999/3611138 and that policy was effective from 17.08.1999 to mid night of 16.08.2000. The certificate dated 02.07.2015, the endorsement receipt under No.203000/6300109, the money receipt dated 16.08.1999 are taken into consideration and marked Exbt.A series on admission as the additional evidence. 08. Admittedly, the accident took place on 11.11.1999 and as such within the coverage of the said policy, the said accident had taken place. Since the victim is a third party, the insurance company cannot avoid the liability of making payment. Accordingly, the liability of making payment of the compensation amount entirely lies with the National Insurance Company Ltd., the respondent No.3. It is really surprising that though the National Insurance Company Ltd. was a party in the proceeding and was represented by a counsel in the Tribunal they did not reveal that truth to the Tribunal for arriving at a correct decision. It is really surprising that though the National Insurance Company Ltd. was a party in the proceeding and was represented by a counsel in the Tribunal they did not reveal that truth to the Tribunal for arriving at a correct decision. The insurer has its responsibility as it is bound by a contract of indemnity under Section 125 of the Indian Contract Act to exposit the status as to the insurance coverage. 09. Be that as it may, since the Insurance Company was not saddled with the liability on the day of passing the judgment and award, the liability of making payment of the penal interest @ 16% may not be shifted to the insurance company. Thus, the compensation of Rs.1,00,667/shall be paid with interest @9% w.e.f. 23.12.1999, the day of presenting the claim petition. The National Insurance Company shall make the payment within a period of two months from today. It is to be observed that the tribunal is not authorised to impose the penal cost within the ambit of Section 171 of the M. V. Act. Hence, the direction for payment of the penal interest stands quashed. 10. Having held so, this petition is allowed. There shall be no order as to costs. The Registry is directed to place the Annexure P/1 series in the record of this petition marking the same as Exbt. A series.