Court No. - 40
Case :- FIRST APPEAL FROM ORDER No. - 2952 of 2016 Appellant :- M/S Pawana Auto Engineering Pvt. Ltd. Gopalpuri Respondent :- The National Insurance Co. Ltd. Aligarh And 5 Others Counsel for Appellant :- S.P.S. Chauhan,A.T. Pandey,Santosh Kumar Srivastava Counsel for Respondent :- Rajeev Ojha,Ravi Prakash Singh
Hon'ble Harsh Kumar,J.
The present First Appeal From Order has been filed against the impugned judgment and award dated 26.8.2014 passed by Motor Accident Claim Tribunal/Additional District Judge, Court No.9 Aligarh (hereinafter referred as 'Tribunal') in Motor Accident Claim Petition No.309 of 2013 whereby claim petition of claimants- respondent Nos. 2 to 5 was allowed awarding a compensation of Rs.6,27,000/- with the interest @ 6% per annum with direction that the amount of award will be deposited by owner of the vehicle Opposite Party No.2 with the Tribunal. Feeling aggrieved the owner of the vehicle moved a review application No.18 of 2014 which was dismissed vide impugned order dated 27.4.2016 and the present appeal has been filed also against the order dated 27.4.2016 rejecting his review application.
The brief facts of the case are that claimant-respondent Nos.2 to 5 filed claim petition No.309 of 2013 before Accident Claim Tribunal, Aligarh with the averments that 25 years old Pushpendra was going by his motor cycle and near Vivekanand school a maruti van No. U.P. 81AN- 6482 (hereinafter referred as 'offending vehicle') being driven by its driver rashly and negligently, dashed his motor cycle due to which he sustained multiple grievous injuries and died on way to hospital leaving behind him his widow claimant no.1, two minor sons claimant Nos.2 and 3 and widowed mother claimant No.4 respectively respondent Nos. 2 to 5. The Tribunal upon pleadings of parties framed five issues and on its findings, on issue nos.1 & 2 held that accident did take place due to sole rash and negligent driving of driver of offending vehicle. On issue no.3, it held that driver of the offending vehicle was holding a valid licence. On issue no.4, it held that in view of paper No.11A\6 the copy of insurance policy on record, the vehicle in question was not duly insured with Natioinal Insurance Company at the time of accident and on issue no.5, it found claimants-respondent Nos.2 to 5 entitled to a sum of Rs.6,27,000/- as compensation. In view of its findings on issue no.4 it exonerated insurance company from liability of payment of compensation and directed owner of offending vehicle to make payment of compensation amount by depositing the same with the Tribunal.
Feeling aggrieved owner of offending vehicle moved an application for review before Tribunal with averments that due to clerical mistake of reader paper No.11A/5 was marked on policy of earlier year and 11A/6 was marked on policy of subsequent year and at the time of disposal of claim petition only paper No.11A/6 policy of subsequent year could be taken into consideration by Tribunal on the basis of which it came to a finding that offending vehicle was not insured with National Insurance Company as paper No.11A/5 left/missed from the consideration of the Tribunal. The above contention of owner of offending vehicle was not accepted by Tribunal and hold it that there is no mistake apparent on the face of record of award and rejected the review application. Hence owner of offending vehicle preferred this appeal against two orders dated 26.8.2014 deciding on award and order dated 27.4.2016 rejecting review application.
Heard Sri S.P.S. Chauhan, learned counsel for the appellant and Sri Rajeev Ojha, learned counsel for National Insurance Company respondent No. 1. No one is present for claimant-
respondent Nos. 2 to 5 or respondent No.6 though all of them have put in appearance through counsel.
Learned counsel for the appellant submitted that the paper No.11A/5 is on record having been filed by defendant Nos.2 & 3, (appellant and respondent No.6) with their written statement and since paper No.11A/6 the copy of certificate-cum-insurance policy of subsequent year was also filed, due to clerical mistake on the part of reader of Tribunal paper No.11A/6 was marked on two papers (i) copy of certificate-cum-policy of subsequent year as well as registration certificate of vehicle and at the time of disposal only paper No.11A/6 could be taken into consideration by Tribunal and Paper No.11A/5 missed/left from consideration of Tribunal; that it is wrong to say that after decision of claim petition No.309 of 2013 vide award dated 26.8.2014 the appellant got inserted paper No.11A/5 in the records of claim petition in order to make a false ground for review; that offending vehicle was seized after accident in question and was released on application moved on behalf of appellant vide order dated 22.12.2012 passed by ACJM, Aligarh (copy provided) after taking into account that insurance of vehicle was effective till 12.1.2013; that offending vehicle in question was purchased by appellant in Jaunary, 2012 and immediately on the date of purchase 13.1.2012 it was got insured with National Insurance Company respondent No.1 for a period of one year upto 12.1.2013 and since at that time registration number of vehicle was not issued by transport authority, so it was insured with particulars of engine number and chassis number of offending vehicles, which were mentioned in certificate-cum-insurance policy paper No.11A/5; that since offending vehicle was duly insured with National Insurance Company at the time of accident in question it may not avoid its liability for payment of compensation; that learned Tribunal has acted wrongly in directing appellant for making deposit of awarded amount of compensation; that impugned judgment and award with regard to direction to appellant of depositing compensation is liable to be set aside and modified, by holding Opposite Party respondent No.1 National Insurance Company to be liable for making payment and directing accordingly.
Per contra, Sri Rajeev Ojha, learned counsel for Insurance Company supported impugned orders dated 26.8.2014 and 27.4.2016 and contended that it is proved from the evidence on record that Paper No.11A/5 the copy of certificate-cum-insurance policy for 13.01.2012 to 12.1.2013 was not on record of claim petition before Tribunal at the time of passing of impugned award dated 26.8.2014 and Tribunal has rightly rejected review application of owner of offending vehicle with the findings that above paper No.11A/5 appears to have been got inserted subsequently; that since above paper No.11A/5 was not on record and has not been filed in this appeal under provisions of Order XLI Rule 27 C.P.C., so this paper may not be considered; that there is no reason for setting aside or interfering with the impugned order of award or order rejecting review petition and appeal is liable to be dismissed.
Upon hearing partys' learned counsel and perusal of record as well as lower court records, I find that as per original record of claim petition in the index of claim petition at serial no.11, 7 papers have been mentioned. The list filing paper Nos. 11A/4 to 11A/7 could not be found on lower court record and from perusal of lower court record, it appears that above papers were filed by defendant Nos. 2 & 3 with and as part of their written statement paper No.11A/1 to 11A/3 and thereafter, there are paper Nos.11A/4, 11A/5, 11A/6 again 11A/6 and 11A/7 which are respectively (i) copy of driving licence, (ii) Copy of certificate-cum-insurance policy for the period from 13.1.12 to 12.1.2013, (iii) copy of Certificate-cum-policy of insurance from 13.1.2013 to 12.1.2014, (iv) certificate of registration of offending vehicle and (v) fitness certificate.
The only dispute is with regard to the paper No.11A/5 as to whether it was or was not on record at the time of passing of impugned award dated 26.8.2014. The genuineness of certificate- cum-insurance policy from 13.1.2012 to 12.1.2013, paper No.11A/5 is not disputed by respondent insurance company.
It is pertinent to mention that there is nothing on lower court record to show that above paper No.11A/5 has been inserted or included in the record of the claim petition subsequent to its disposal on 26.8.2014. The appellant has taken ground B in memo of present appeal with specific averments that there was policy cover note effective from 13.1.2012 to 12.1.2013 which was filed as paper No.11A/5 and could not get sight of tribunal or was ignored by claims Tribunal due to inadvertent mistake of clerk. It is pertinent to mention that it has not been contended on behalf of insurer respondent no.1 that above certificate-cum-policy is forged and above certificate cum policy with particulars mentioned in paper No.11A/5 was never issued by Company in favour of appellant in respect of offending vehicle in question. The only dispute is as to whether above policy paper No.11A/5was or was not on record. It is also pertinent to mention that bare perusal of paper No.11A/5 and 11A/6, the two certificates-cum policy of insurance for the periods from 13.1.2012 to 12.1.2013 and 13.1.2013 to 12.1.2014 respectively, it is very much clear that paper No.11A/5 is policy of initial year in which a perimum of Rs.7,765/- has been charged by National Insurance Company for insurance of offending vehicle and in paper No.11A/6 certificate-cum-policy for subsequent year a perimum of Rs. 6,317/- only has been charged after giving some rebate on account of 'no claim bonus' which also indicates that paper No.11A/6 is a renewal policy and in previous year too offending vehicle was duly insured. Paper No.11A/5 the certificate-cum-insurance policy states that insurance was done by particulars of engine number & chasis number of offending vehicle of which registration was not issued by the time of insurance on 13.1.2012. It is also pertinent to mention that as a rule whenever a vehicle is seized on account of accident the same may be released by Magistrate only after satisfying itself will validity of that all the papers of vehicle including insurance and copy of judicial order dated 22.12.2012 releasing offending vehicle, passed by Judicial Magistrate (copy provided by appellant and taken on record) also shows that it states that insurance certificate of vehicle has been produced which was valid upto 12.1.2013. undisputedly accident in question did take place on 6.12.2012 and above date of accident is covered within period of insurance from 13.1.2012 to 12.1.2013 under certificate-cum-insurance policy paper No.11A/5 on lower court record.
In view of the discussions made above I am of the considered view that the paper No.11A/5 was there on record of claim petition and due to wrong numbering by reader of Tribunal due to inadvertent clerical mistake, it could not come into notice of Tribunal at the time of passing of impugned award dated 26.8.2014. The offending vehicle was duly insured with National Insurance Company at the time of accident in question and findings of Tribunal on issue No.4 to the contrary are liable to be displaced and appeal is liable to be allowed. The impugned award dated 26.8.2014 is liable to be modified accordingly with the modification that liability for payment of compensation will be joint and several of opposite parties of claim petition and being insurer the respondent No.1 National Insurance Company will be liable to indemnify the owner of offending vehicle, by making payment of amount of compensation.
Accordingly, the appeal is allowed and impugned award dated 26.48.2016 stands modified to the extent that defendant opposite parties will be jointly and severally liable for payment of compensation and insurer respondent no.1 National Insurance Company shall make payment of entire amount of compensation with interest thereon to the claimants by depositing the same with Tribunal within two months from today and If any amount of compensation has already been paid or deposited with tribunal by owner of offending vehicle by making payment of such amount to appellant/owner of offending vehicle within same period.
Let lower court record be forthwith sent back to Court/Tribunal below alongwith a copy of this judgment for necessary action if any.
Order Date :- 29.5.2019 Ashutosh Pandey