Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 679 of 2006
Appellant :- Lal Mohan Singh
Respondent :- Rajendra Singh @ Bhupendra Singh Counsel for Appellant :- Prem Shankar Shukla,P.S. Sharma,Pawan Kumar Shukla,S.P.Lal,S.Pal
Counsel for Respondent :- R.K.Rathore,Vipin Chandra Dixit
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Heard Sri Prem Shankar Shukla, learned counsel for appellant, Sri Vipin Chandra Dixit, learned counsel for respondent and perused the material brought on record.
This appeal, preferred by the appellant challenges the judgment dated 25.09.2002 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Mainpuri (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 372 of 2000 and order dated 06.07.2005 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Mainpuri (hereinafter referred to as 'Tribunal') in Misc. Case No. 13 of 2003.
The accident is not in dispute, the policy was not invoked is not in dispute, the insurance company was not made a party is not in dispute.
Learned counsel for appellant submitted that it cannot be said that they were not aware the litigation as the Court has recorded the finding that gazette notification was published and case proceeded ex parte for an order dated 25.09.2002. The deceased Brijmohan thereafter filed his application which was unfortunately rejected. The factual data as it transpires is that pursuant to the said order, the claimants filed execution proceedings. Kamla Kant who had filed the subsequent petition making Oriental Insurance Co. Ltd as party for the death of her child. In that matter the claim petition came to be allowed and the insurance company was also made liable.
Learned counsel for appellant has further relied on judgement of High Courts in Mannu Ram and anothers Vs. Additional District Judge, Ballia reported in I (2000) ACC 383, Raj Kumari and others Vs. Motor Accident Claims Tribunal & Ors reported in III (2002) ACC 208 and Urmila Devi and 2 Ors. Vs. Sukhdev Singh and Another reported in I (2002) ACC 157.
While going through the record rather the paper book filed in this litigation, it is clear that in the petition filed before the court below, the insurance company was not made a party and, therefore, the tribunal should have accepted the show off appellants appeal requires to be allowed. Unfortunately, the recall was filed and in this case the amount of Rs.1,70,000/- which has been awarded, there is no breach of policy. The insurance company which is before this Court shall indemnify the entire amount to the appellant herein.
If paid by the appellant herein, he may be reimbursed by the insurance company. The liability of the insurance company is mulcted in the other matter. The fact that the judgment is a cryptic judgment, hence this Court instead of remanding the matter, allowing the review before the tribunal grants recovery rights to the owner of the vehicle, as he has to be indemnified as the vehicle was insured and has held above in another matter. The insurance company has been saddled with the liability. Despite the fact that this Court has time and again held that the decision in another matter would be binding on the tribunal, the tribunal rejected review petition of the present appellant. It is an admitted position of fact that he was not served with the summons. Nothing is mentioned as to how he was served.
Be that as it may, the insurance company also was not made a party under Section 168 of the Motor Vehicles Act, 1988 whereas in M.A.C.P. No. 38 of 2001 which is at Annexure-5 to this appeal decided on 20.09.2003, the insurance company has been held liable by giving elaborate reasons and which had attend finality, hence this appeal also will have to be succeed as the insurance company is made a party here and has been heard at length by an amendment incorporated on 27.04.2009 vide order dated 19.10.2007.
With these observation, the appeal is allowed.
The insurance company shall indemnify the appellant within 8 weeks from today.
The record and proceeding be sent back to the tribunal forthwith.
Order Date :- 31.07.2019 Shubhankar