Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 3276 of 2003 Appellant :- United India Insurance Co Ltd. Respondent :- Smt. Zahida And Others Counsel for Appellant :- V.C. Dixit Counsel for Respondent :- Nigmendra Shukla,M.K. Kesarwani AND Case :- FIRST APPEAL FROM ORDER No. - 3291 of 2003 Appellant :- United India Insurance Co Ltd Respondent :- Yunus @ Kallu And Others Counsel for Appellant :- V.C. Dixit Counsel for Respondent :- Nigamendra Shukla,Om Prakash Pandey
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri V.C. Dixit, learned counsel for appellant and Sri Nigmendra Shukla, learned counsel for respondents in both the matters.
2. This First Appeal From Order No. 3159 of 2013 has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by Insurance Company, being aggrieved by judgment and award dated 30.9.2003 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No. 14, Meerut (hereinafter referred to as "Tribunal") in MACP No.416 of 2001( First Appeal From Order No. 3276 of 2003) and in MACP No. 417 of 2001 (First Appeal From Order No. 3291 of 2003).
3. Both these appeals arise out of same accident and, therefore, are taken up for final disposal together. The award is challenged on the ground of breach of policy conditions.
4. However, before the facts could be adverted to a preliminary objection is raised by Sri Nigamendra Shukla, learned Advocate appearing for the claimant respondent. Sri Nigamendra Shukla, learned counsel appearing on behalf of claimant-respondent submits that the insurance company has accepted the judgment of Tribunal in another matter arising out of the same accident being MACP No.225 of 2002 and, therefore, also they are estopped by the principles of estoppel and they can not raise now such objection that there is a breach of policy condition.
5. In view of the fact that the insurance company has not agitated the grant of compensation in an accident arising out of same accident. No facts are necessary and are not narrated.
6. The factual scenario is that the accident is not in dispute. The policy is not in dispute. What is disputed is that the owner has committed breach of policy condition and, therefore, they are not liable. This submission cannot be now permitted in a subsequent litigation arising out of the same accident.
7. As far as same accident is concerned, without delving into the factual matrix the Insurance Company have settled one matter can they now raise this issue, the answer would be no.
8. However Sri V.C. Dixit, Advocate submits that they have produced the policy as far as infraction of Section 147 of the Act is concerned and therefore they should be granted recovery rights atleast. However even before Tribunal, the Insurance Company has not been able to prove that the owner was aware about the fact that the vehicle had been used for plying persons for hire or reward and that the owner permitted them to travel in the vehicle. In that view of the matter also these appeals cannot succeed.
9. Appeals fail and are dismissed. The amount if yet not deposited, be deposited forthwith. Record and proceeding be sent back to the Tribunal.
10. This Court is thankful to both the counsels to see that this very old matter is disposed of.
Order Date :- 29.5.2019 Mukesh