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Rajasthan High Court · body

2017 DIGILAW 1446 (RAJ)

Kailash (Shri) v. Ram Niwas

2017-07-03

ARUN BHANSALI

body2017
JUDGMENT : ARUN BHANSALI, J. This appeal has been filed by the appellant aggrieved against the judgment dated 28.06.2004 passed by the Motor Accident Claims Tribunal, Udaipur (‘the Tribunal’), whereby the application for compensation filed by the appellant has been rejected. 2. The appellant filed the application seeking compensation for injuries suffered by him in an accident, which occurred on 17.02.1996. The application was filed against Ramniwas, the Driver of the Vehicle and Ramlal, Owner of the Vehicle and respondent No. 3-Insurance Company. 3. During pendency of the application when despite grant of sufficient opportunity, the requisites for service on the owner and driver of the vehicle were not filed by the claimant, by order dated 26.11.2002, the trial court closed the proceedings qua the respondents — owner and driver and rejected the claim qua them. 4. After evidence was led by the claimant and the Insurance Company and the matter came up for final hearing, a submission was made on behalf of the Insurance Company that as the claim has already been rejected against the owner and the driver of the vehicle, the Insurance Company cannot be held liable for making payment of amount of compensation and, therefore, claim was liable to be rejected. 5. The Tribunal by this impugned judgment, accepted the plea and rejected the application seeking compensation. 6. Feeling aggrieved, the present appeal was filed. During pendency of the present appeal, also an application was filed on behalf of the appellant seeking dispensing with the requirement of service on respondent No. 2- owner of the vehicle, which application was allowed on 06.08.2013 and the service was dispensed with. 7. Learned counsel appearing for the Insurance Company made submissions that initially also the application for compensation was rejected on account of rejection of claim against the owner and the driver of the vehicle and now again once the requirement of service on respondent No. 2 has been dispensed with, no order can be passed in the present proceedings, holding the Insurance Company liable for making payment of amount of compensation. 8. Learned counsel for the appellant submits that the Insurance Company cannot escape its liability, once the factum of accident is proved irrespective of the fact whether the owner and the driver are served or not. 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 8. Learned counsel for the appellant submits that the Insurance Company cannot escape its liability, once the factum of accident is proved irrespective of the fact whether the owner and the driver are served or not. 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 10. Once the claim, which was filed way back in the year 1996 was rejected in the year 2002 for non-service on the owner and the driver of the vehicle and, consequently, as the liability of the Insurance Company is only to indemnify the owner of the vehicle, the claim application was rejected and in the present appeal, also the appellant has chosen to get the requirement of service of respondent No. 2 dispensed with, no effective order can be passed, holding the Insurance Company liable for making payment of compensation in absence of the owner of the vehicle. 11. Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v. Sunita Rathi: (1998) 1 SCC 365 laid down that the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of Insurance. 12. In view of the fact that in absence of the insured, no order can be passed holding him liable, the Insurance Company also cannot be held liable. 13. In view thereof, there is no substance in the appeal, the same is, therefore, dismissed. Appeals dismissed.