Court No. - 27
Case :- FIRST APPEAL FROM ORDER No.438 of 2017 Appellant :- Suresh Chandra Sharma & Another Respondent :- Ravi Kumar & Another Counsel for Appellant :- Satya Deo Ojha Counsel for Respondent :- Avdhesh Chandra Nigam,Pawan Kumar Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. The claimant's counsel committed not only mistake but it was a blunder in impleading National Insurance Company despite the fact that respondent – Bharti Axa was a party. As far as company is concerned, the Company will have it's right under Section 147 read with sections 148 and 149. The provisions of Motor Vehicles Act though are in favour of the claimant if there is a deliberate mistake committed by the claimant, should the owner and the Insurance be suffered. Section 170 of the Motor Vehicles Act reads as follows:-
“170. Impleading insurer in certain cases.—Where in the course of any inquiry, the Claims Tribunal is satisfied that—
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.”
2. Section 168 is very clear. In this case, Insurer – Bharti Axa has filed his written statement. In this case, it cannot be said that the owner was slack. The record shows that even without getting No Objection from the appellant herein, National Insurance was impleaded though the cover note of Bharti Axa was filed. This is the bone contention of Sri Ojha. Section 166 reads as follows:-
“166. Application for compensation.—
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made—
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. 1[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] 2[***] 3[(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.]”
3. Section 170 obliges the Tribunal through recording detailed reason before the Insurance company is impleaded. In this case, it was not a case of Bharti Axa that the vehicle was not insured with them. The reply filed, which is annexed as Annexure No.4, paragraph no.3 reads as follows:-
“The contents of the Paragraph 17 of the claim petition are not admitted and denied. The particular of the insurance Policy of the alleged HR 63 8235 furnished by the petitioner in the claim petition has been sent by the answering respondent for the verification of the policy and no report has been received after the verification & investigation of the policy. So at this stage answering opposite party unable to admit contents of this paragraph.”
4. Bolero Jeep no.HR 63 8235 was not insured with it. Before giving an application by one Ravi Kumar, who was the applicant, no endorsement is found of the Advocate of the opponent.
5. I had taken as the matter was pending for some time and as the cover note was filed before this Court I had requested Sri Ojha to take instructions. The instructions given to him by Bharti Axa are that they were not a party before the Tribunal and that they had not contested the claim. Even today before this Court, it is not mentioned whether the document annexed at page 37 is a cover note issued by Bharti Axa General Insurance Company Limited or not.
6. The Apex Court way back in the year 1989 has held that the Insurance company cannot hold back the policy for a period of more than 8 months. After the impleadment order i.e. 31.7.2017, Bharti Axa did not appoint any counsel and, therefore, I had requested Sri Pawan Kumar Singh to seek instructions. The matter was thereafter again listed on 18.12.2017, 12.2.2018 and today i.e. 26.2.2018. I am pained that an Insurance company has not sent proper instructions to his counsel.
7. May that as it may be, going through the record prima facie it is clear that Bolero Jeep was not insured. Photostat copy was issued in favour of the appellant herein.
8. However, as suggested by Sri Pawan Kumar that they were deleted as a party respondents, they were not aware whether there were breach of any policy. In that view of the matter for that purpose, the matter stand remitted to the Tribunal, which would decide the dispute between the Insurance company and the owner and if it is found that there is breach of policy conditions, the Tribunal may pass requisite orders.
9. In that view of the matter, this appeal requires to be partly allowed and is partly allowed. The Insurance company shall deposit the amount if there are executions filed by the appellant herein within 12 weeks from today.
10. The amount of Rs.25,000/- deposited by the owner shall be remitted to the Tribunal and be kept in Fixed Deposit. If any other amount is ordered to be paid by way of execution, it shall be subject to the result of order which may be passed by the Tribunal.
Order Date :- 26.2.2018 Irshad