Bajaj Allianz General Insurance Co. Ltd. vs Naresh Kumar And Another

Tashi Rabstan, J

The present appeal filed under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as 'the Act') by the appellant-Bajaj Alianz General Insurance Co. Ltd., seeking setting aside of judgment/award dated 28.11.2015 passed by the Presiding Officer, Motor Accident Claims Tribunal, Jammu (hereinafter referred to as 'the Tribunal') whereby the appellant was directed to pay an amount of Rs.27,68,748/- along with interest @7.5 % per annum from the date of filing of claim petition.

The facts giving rise to filing of present appeal are that on 18.10.2011 at about 11.45 p.m, accident took place on Jammu Pathankote National Highway at Ghagwal wherein the claimant respondent No.1 herein, got severely injured. At the relevant point of time, the claimant was working as Cleaner in the offending vehicle which was driven rashly and negligently by its driver and on account of disablement caused to the claimant, he filed a claim petition before the Tribunal.

Considering the evidence put-forth before the Tribunal and record of the file, the Tribunal came to the conclusion and passed an award of an amount of Rs.27,68,748/- along with pendentelite and future interest @7.5 % per annum throughout till realization except on the head of loss of future income and future income includes the future expenditure. The said amount of compensation was directed to be paid by the insurance company within a period of 30 days from the date of passing of award. It was also directed by the Tribunal that the insurance company can recover the award amount from owner of the vehicle later on.

The main ground of challenge thrown by the Insurance Company is that there is no privity of contract between the insurance company and owner of the vehicle who expired during the proceeding before the Tribunal. As such, when there is no existence of the insurance policy with regard to the offending vehicle, the question of paying the compensation to the claimant and recovering the same from the owner does not arise. It is also submitted that the claimant sought number of opportunities to bring on record the legal heirs of the deceased owner which is apparent from the interim order passed by the Tribunal but it was subsequently recalled on the submission of respondent No.1. The learned Tribunal observed that the claim petition is maintainable even the owner had died during the proceeding before it.

Learned counsel for the appellant vehemently argued that the insurance company is under no obligation to indemnify the owner in the absence of the insurance policy. In this regard, the learned counsel has produced number of judgments, some of them are Oriental Insurance Co. Ltd. Vs. Misra and others, 2005(3)JKJ 50, Oriental Insurance Co. Ltd. Vs. Rajni Devi, 2016(3) JKJ 353 by the coordinate Bench of this Court and National Insurance Co. Ltd. Vs. Ramjee Pandey and another, 2009 ACJ 2301 by the Division Bench of Kerala High Court.

Per contra, Mr. Vipan Gandotra, learned counsel appearing for the claimant submits that the death of the owner during the proceeding is not a bar and as such, the claim petition does not abate. In this regard, he has placed reliance on a judgment of Rajasthan High Court in Ranbir Singh Vs. National Insurance Co. and another decided on 18.05.2016.

I have given a thoughtful consideration to the arguments of the learned counsel appearing for the parties, the judgments produced by them and have also gone through the memo of the appeal along with whole record of the Tribunal.

As far as the question of the abatement of the claim proceedings is concerned, the position is very clear owing to the Section 155 of the Motor Vehicle Act which clearly states that the death of the person, in whose favour a certificate of insurance had been issued, after the happening of the accident which gave rise to filing of claim petition, is no bar to the proceedings and therefore, proceedings do not abate.

Admittedly, the cheque presented for the issuance of insurance policy was dishonoured as per memo dated 27.09.2011 pursuant to which the insurance policy was cancelled forthwith and an intimation to that extent was sent to RTO Jammu and the owner of the vehicle. Since, there was no existence of any insurance policy with regard to offending vehicle, the question of liability of the insurance company does not arise. The judgments produced by Mr. Baldev Singh, learned counsel for the appellant also support the stand taken by the insurance company.

It is not disputed that there are no legal heirs of the deceased owner on record before this Court as they are not party in this appeal and also before the learned Tribunal they were not brought on record. Since, the liability cannot be fastened on the insurance company in absence of any insurance policy and also it would not be appropriate and not in the interest of justice that the same liability should be shifted to the legal heirs of the deceased owner without giving them the opportunity of being heard. At this belated stage, the legal heirs cannot be brought on record when they were not made party before the Tribunal. Therefore, in the interest of justice and fair play, this Court is left with no other choice and compelled to remand the matter back to learned Tribunal.

Accordingly, without expressing any opinion on the merits of the case, the award dated 28.11.2015 passed by the Presiding Officer, Motor Accident Claims Tribunal, Jammu is set aside and the matter is remanded back to the Tribunal for re-deciding the claim petition after hearing all the effected parties including the legal heirs of the deceased owner of offending vehicle. The amount deposited by the insurance company before the Registry of this Court including the statutory amount, be remitted back to the insurance company after proper verification and identification. It is ordered that no fresh evidence shall be taken from the parties which have already given the evidence in support of their contentions. The claim petition was instituted before the Tribunal about ten years ago, therefore, it is expected from the learned Tribunal that the claim petition be decided expeditiously. The learned Tribunal is not obliged to be influenced by any of the observation made by this Court regarding the facts of the case.

Registry to send down the record attached with this appeal along with a copy of this order.