Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 178 of 1987 Appellant :- N.I.C.
Respondent :- Smt. Rama Devi Counsel for Appellant :- Rajendra Kumar,Ashok Kumar Srivastava,Nagendra Kumar Srivastava Counsel for Respondent :- K.K. Arora with Case :- FIRST APPEAL FROM ORDER No. - 246 of 1987 Appellant :- M/S N.I.C.
Respondent :- Smt. Rama Devi Counsel for Appellant :- A. Kr. Srivastava,N.K. Srivastava Counsel for Respondent :- A.D.Prabhakar,K K Arora
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Both these appeals practically challenge the same award, the award challenge is the not allowing of the review application under Order 9 Rule 13 of the C.P.C. for setting aside the ex parte award and second is for challenging the award passed in favour of the claimants, namely, respondent Nos. 2 to 5 who had lost their sole breadwinner when they were minor and became widow. The Motor Accident Claim Case No. 65 of 1983 was decreed in favour of the claimants by the tribunal and the subsequent review application was also rejected by the tribunal which is subject matter of challenge in F.A.F.O. No. 178 of 1987.
Now that the main matter which was admittedly an ex parte decree is taken up for hearing. None appears for the owner and the respondent-claimants, though 32 years have elapsed since the filing of the appeal.
Office report shows that several times steps have been taken but none have remained present.
The grounds of appeal in F.A.F.O. No. 246 of 1987 is that factually after the matter was not settled at the Lok Adalat and when there was strike of Advocate the tribunal went ahead with the matter. The appellant did not appear before the court below. The counsel for the appellant has submitted that on 20.11.1886 was told that that there was strike. Despite that judgment was delivered. It is submitted that an ex parte decree of Rs.1,97,000/- could not have been passed as the limit of policy was only Rs.15,000/- which is clear from the cover note produced by the National Insurance Company Ltd. The submission that the quantum is on higher side in that there was negligence of the deceased cannot be countenanced in light of the fact that before the tribunal even in the written statement it was not contended that they had limited liability and the liability was only up to Rs.50,000/-.
While perusing the judgment, it is clear that the appellant herein nowhere pleaded even in the version for recalling the ex parte judgment, it was not mentioned that there was any kind of breach of policy condition. It was not even pleaded that they were not liable to pay the entire amount. In light of this, can it be said that the appellant herein were wrongly saddled with the liability after 32 years and more particularly, 36 years of accident having taken place, it could not be proper to this Court to remand the matter. The deceased was a cattle supplier for slaughter house and was alleged to be earning Rs.1,000/- per month he was 25 years of age as per the evidence. The deceased is granted Rs.2,88,000/- with deduction of 30% even if we consider his income to be Rs.1,000/- per month as he was 25 years of age the maximum multiplier even in the year of judgement could have been 18 which would bring the amount to be Rs.1,72,800/- and to which even if we add other amount the figure would come to what has been granted. The rate of interest is also 6%. Hence the quantum does not require any interference.
This takes this Court to the question of limited liability having not pleaded, the same is not proved before the tribunal even if written statement or the review application, the same cannot be permitted to be raised here. Rather the cover note shows that additional amount of 55 passenger is Rs.324 for driving, Rs.16/- is third party it was Rs.426/-. Therefore, it cannot be said that it was a limited liability policy. Though in one of the column it is typed that Rs.50,000/- would be maximum but that is subject to parties contracting to indemnify fully by accepting the higher premium or extra amount by way of premium which is in counter.
Both the appeals fail and are dismissed.
Record and proceeding be sent back to the tribunal. Rest of the amount be deposited within 12 weeks from today, while entertaining this appeal, this Court had granted stay and directed to deposit of only certain amount.
Order Date :- 31.7.2019 Shubhankar