Heard the learned counsel for the appellant. Shri Parijaat Mishra Belaura learned counsel appearing for the respondents no.1 to 4 and Ms. Pooja Arora learned counsel for the respondent no.5 Insurance Company.
By means of the instant appeal preferred under Section 173 of the Motor Vehicle Act, 1988. The appellant assails the award dated 25.08.2010 passed by the MACT/Special Judge (E.C.Act), Lucknow in Claim Petition No.23 of 2006 wherein a sum of Rs.1,52,000/= alongwith 6% has been awarded in favour of the respondents no.1 to 4.
The instant appeal has been urged primarily on two grounds (i) no notice was received by the appellant and the award dated 25.08.2010 is ex parte. It is further urged that on account of the aforesaid fact the appellant could not contest the proceedings before the claims Tribunal appropriately which has resulted in the award. (ii) The other ground is that the award has been fastened upon the appellant on the ground that the vehicle involved did not possess the valid permit. It is also urged that in order to overcome the aforesaid hurdle the appellant moved an application under Order 41 Rule 27 CPC bringing on record the copy of the permit. This Court by means of order dated 24.01.2020 allowed the application and as such the said permit is now part of the record.
Time was granted to the learned counsel for the Insurance Company to verify the veracity of the said permit and as such once the permit is on record, consequently, no liability as such can be fastened on the appellant and the award is now to be indemnified by the Insurance Company.
Learned counsel for the claimant-respondents submits that in so far as the issue involved in the above appeal is concerned is primarily between the appellant and the Insurance Company. It is further submitted that in pursuance of the order passed by the Court on 24.01.2020 half of the amount under the award has been released in favour of the claimant respondents but the claimants are waiting to get the remaining amount.
Ms. Pooja Arora learned counsel appearing for the Insurance Company submits that the appeal had been preferred with latches. The appellant has deliberately misuse the process of law; inasmuch as despite service it failed to contest the proceedings before the Tribunal. The document which were available with him was not placed in time. Now once the award has been passed the instant appeal was preferred with delay. The delay has been condoned. Even thereafter at a much later stage an application under Order 41 Rule 27 CPC was filed which was allowed by the Court and though the Insurance Company has got the said document verified and the same appears to be in order but nevertheless the fact remains that the interest component on the award which has been awarded in favounr of the claimants is a liability which solely rests on the shoulders of the appellant as he himself is responsible in the entire delay. Had the said documents been filed at the appropriate stage by the appellant then the losses could have been mitigated.
In order of appreciate the controversy involved in the above appeal briefly the facts giving rise to the instant appeal are being noticed first.
The Claim Petition bearing No.23 of 2006 was preferred by the legal heirs of deceased Jyoti. It was stated that on 11.12.2005, the deceased alongwith her mother was coming towards her house and while she had reached the Police Station Kakori in Chaudhary Khera. the offending bus bearing number U P 32/Z-3610 which was being driven rashly and negligently, hit the deceased from behind as a result she sustained grievous injuries and she expired. The claim petition was contested by both the owner of the bus as well as Insurance Company. Though the factum of accident was disputed and it was further alleged that the bus driver was not at fault. However, it was also pleaded that the bus driver had a valid licence and the bus was insured with National Insurance Company. It was also pleaded that though the claimants were not entitled to any compensation but in any case if at all, any liability arises, the same is to be indemnified by the Insurance Company.
Upon pleadings of the parties, the Tribunal framed five issues considering the evidence both oral and documentary. The Tribunal concluded that the accident was caused on account of rash and negligent driving by the bus driver which led to the death of Jyoti. Issue nos.2, 3 and 5 were considered together and the Tribunal noticed that the bus was duly insured and the driver also possessed an effective valid driving licence. However, it recorded a finding that since the bus did not possess a valid permit, hence in absence thereof, it cannot be said that the vehicle was being driven in accordance with the policy condition. Hence, thereafter it proceeded to decide the quantum of compensation and awarded a sum of Rs.1,52,000/= alongwith 6% interest from the date of the claim application till the date of its actual payment be made by the owner of the bus. It is this award dated 25.08.2010 which has been assailed by the appellant in the instant appeal on the grounds as noted hereinabove before.
Considering the facts and the submissions made by the parties, the issue involved in the instant appeal is the effect of the permit which has been taken on record in pursuance of the order passed by the Court dated 24.01.2020.
Since the Insurance Company after verification finds that the permit is in order, accordingly there does not appear to be any doubt in arriving at the conclusion that the finding given by the Tribunal that though the vehicle in question was insured but in absence of the permit the liability is fastened on the owner is not quite correct.
This finding can now be modified to the extent that the amount awarded will be disbursed and be indemnified by the Insurance Company.
The other aspect of the matter that the delay has been caused by the appellant in procrastinating the litigation at every stage. This can only be compensated to the respondents Company by imposition of cost.
Consequently, in view of the facts and circumstances the appeal is allowed partly. The findings regarding negligence and quantum as determined by the Tribunal are upheld the findings in so far as the issue no.3 is concerned, regarding the bus not being plied in accordance with terms of the policy is now set aside and it is held that the bus had a valid permit and was plied in accordance with the policy condition.
Consequently, the award dated 25.08.2010 shall stand modified to the aforesaid extent and the liability to satisfy the award shall be of the Insurance Company.
The amount already deposited by the appellant before this Court shall be remitted to the Tribunal concerned to be released in favour of the claimants-respondents. The Insurance Company shall also deposit the remaining sum after calculating the upto date interest in terms of the award before the Tribunal within a period of four weeks from today.Any amount paid by the appellant under the award, it shall be entitled to receive it from the Insurance Company.
This appeal is partly allowed on a cost of Rs.25,000/- to be paid by the appellant to the respondent within two weeks from today. The sum of Rs.25,000/= deposited by the appellant before this Court in compliance of the order dated 24.01.2020 shall also be payable to the respondent no.5 and so it shall be released in favour of the respondent no.5.
In view of the above, the appeal is allowed partly. Let lower court record be remitted to the Tribunal concerned within a period of two weeks.
Order Date :- 30.7.2021 ank