Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2160 (ALL)

National Insurance Company Ltd. v. Raj Kumari

2023-09-18

SARAL SRIVASTAVA

body2023
ORDER ON APPEAL Saral Srivastava, J. Heard learned counsel for the appellant and learned counsel for the respondents Insurance Company. 2. The present appeal has been filed by the appellant against the award dated 28.08.1998 passed by Motor Accident Claims Tribunal/1st Additional District Judge, Ballia passed in M.A.C.P. No.95 of 1990. 3. Challenging the award, learned counsel for the appellants has contended that the offending vehicle, i.e., Metador No.U.R.I.-8556 was a goods carrier vehicle, whereas the deceased was travelling as a gratuitous passenger on the said vehicle. Since, the offending vehicle was a goods carrier vehicle, therefore, the deceased was not permitted to travel as gratuitous passenger on the said vehicle. Thus, it is contended that the deceased was not covered under the insurance policy, therefore, the Tribunal has erred in law in fixing the liability upon the appellant to pay compensation. 4. Per contra, learned counsel for the respondents would contend that no plea with regard to the fact that the deceased was travelling as a gratuitous passenger has been taken by the appellant in the written statement nor the appellant got any such issue framed before the Tribunal. In such view of the fact, it is submitted that the contention advanced before this Court by the learned counsel for the appellant cannot be raised for the first time in appeal. 5. Be that as it may, the record reveals that the appellant Insurance Company has not set up any plea with regard to the coverage of the deceased under the insurance policy on the ground that the deceased was a gratuitous passenger and was not covered under the insurance policy as he was travelling on a goods carrier vehicle, nor the appellant Insurance Company got any issue framed on the said point. The appellant Insurance Company did not lead any evidence establishing that the deceased being a gratuitous passenger was not covered under the insurance policy. In such view of the fact, the plea raised herein by the appellant in respect to non-coverage of deceased under the insurance policy being a gratuitous passenger on a goods carrier vehicle cannot be raised for the first time in appeal. 6. Thus, for the reasons given above, the appeal lacks merit and is accordingly dismissed with no order as to costs. Order on Cross Objection No.70 of 2023. 7. Heard learned counsel for the appellant and learned counsel for the claimant/respondent. 6. Thus, for the reasons given above, the appeal lacks merit and is accordingly dismissed with no order as to costs. Order on Cross Objection No.70 of 2023. 7. Heard learned counsel for the appellant and learned counsel for the claimant/respondent. 8. The present cross appeal has been filed by the claimant/respondent No.1 & 2- cross objector for enhancement of the award. 9. The Stamp Reporter has reported the delay of 8801 days in filing the cross objection/cross appeal. 10. The affidavit filed in support of the delay condonation application reveals that the delay in filing the cross objection has not been explained properly.Paragraph nos.2 to 7 of the affidavit filed in support of the delay condonation application are reproduced here-in-below:- "2.That the aforesaid appeal was filed on behalf of National Insurance Company Ltd., challenging the judgement and award dated 28.08.1988 passed by 1st Additional District Judge/Motor Accident Claims Tribuna, Ballia in M.A.C.P. No.95 of 1990. 3.That in April 2023 the deponent met to counsel Anil Kumar Pandey in respect of pairvi of the case. 4. That Sri Anil Kumar Pandey discuss the matter with Mr. Arun Kumar Shukla, Advocate who advised to file cross objection as meagre amount of Rs.1,00,000/- has been awarded for death of 25 years old young man. 5. That thereafter cross objection along with delay condonation application was prepared and is being filed. 6. That the delay in filing the cross objection is neither deliberate nor intentional. 7. That under the circumstances it is expedient in the ends of justice that the delay in filing the cross objection may be condoned and cross objection may be treated within time for decision on merits." 11. As the claimants/appellants have failed to explain the inordinate delay of 8081 days properly and sufficiently in filing the cross objection." 12. Accordingly, this Court does not find any good ground to condone the delay in filing the cross objection. Accordingly, the delay condonation application is rejected. Consequently,, the cross-objection is also dismissed.