Dhuniram Kurre vs Ramkunwar, Manharan Khande, Ku Laxman and Ramkumar ICICI Lombard Motor Insurance Company Limited Bilaspur CG

Hon''ble Shri Justice Rangnath Chandrakar

(Appeal u/s 173 of the Motor Vehicle Act, 1988)

The appellant has preferred this appeal u/s 173 of the Motor Vehicle Act, 1988 (for short, "the Act 1988") challenging the impugned award dated 9-2-2009 passed by VIth Additional Motor Accident Claims Tribunal (for short, "the Tribunal"), Bilaspur in Claim Case No. 105 of 2008, whereby the appellant was held liable to pay compensation to the claimants exonerating the Insurance company - respondent No. 5 herein.

Brief facts of the case, in short, are that the respondents No. 1 to 3/claimants filed a claim petition u/s 166 of the Motor Vehicle Act claiming the compensation of Rs. 24,32,000/- against the appellant and respondents No. 4 and 5 on account of death of Shivkumar Khande, in a motor accident occurred due to rash and negligent driving of tractor-trolley driven by respondent No. 4 herein and owned by the appellant. The appellant and respondent No. 4 filed joint reply and submitted that the alleged Tractor-trolley was purchased from Anil Agency, Magarpara, Bilaspur on 14-1-2008 and a cover note for insurance of the vehicle was also issued on the same day by the Agency. The respondent No. 5 - Insurance Company filing the reply contended that the vehicle was not insured on 14- 1-2008 but insured from 15-1-2008 to 14-1-2009, thus, the insurance company is not liable to pay compensation to the claimants. On the basis of the pleading of the respective parties, learned Tribunal framed issues for adjudication of the matter and during pendency of the claim petition miscellaneous applications were filed by the parties. The insurance company filed an application under Order 11 Rule 12 of the CPC which was replied by the appellant but the application of the appellant filed under Order 1 Rule 10 of the CPC for impleading Anil Agency as necessary party in the case was rejected by the tribunal. The appellant also filed the copy of the cover note supplied by Anil Agency to him which was not considered by the tribunal. The Tribunal holding that the offending vehicle owned by the appellant was not insured with the respondent No. 5 on the date of incident i.e., 14-1-2008, fastened the liability upon the appellant and respondent No. 4 jointly and severely awarding Rs. 2,25,000/- to the claimants.

Mr. Gautam Khetrapal, learned counsel appearing for the appellant submitted that at the time of accident, the vehicle was insured with respondent No. 5/Insurance Company as the cover note was issued by the agency on 14-1-2008 on behalf of insurance company but it was not taken into consideration by the tribunal. The tribunal also erred in rejecting the application filed by the appellant for impleading the agency as necessary party. He further submitted that the tribunal ought to have taken the cover note into consideration and at the least summoned the agency as a witness to the cover note of the policy. Thus, the tribunal has erred in fastening the liability upon appellant exonerating the insurance company, therefore, the impugned award passed by the Tribunal be set aside.

Per contra, Shri R.K. Singh, learned counsel appearing for respondents No. 1 to 3 and Ms. Tanushree Das, learned counsel appearing for the respondent No. 5 supported the award and contended that at the time of accident the aforesaid vehicle was not insured, therefore; the tribunal has rightly passed the award in favor of the claimants.

I have heard learned counsel for the parties, perused the impugned award and record of the tribunal.

The finding of the tribunal regarding fastening the liability to pay the compensation is based on the insurance policy (Ex.NA/4). The tribunal in para 10 of the impugned award held that offending vehicle was insured with the Insurance company respondent No. 5 from 15-1-2008 to 14-1- 2009 and the incident occurred on 14-1-2008. Thus, the offending vehicle was not insured on the date of incident, the tribunal fastened the liability over the respondent.

On going through the record, it is found that despite the specific pleading of the appellant that the offending vehicle was insured with the respondent No. 5 on the date of incident learned Tribunal did not frame any issue in this regard. The order sheets of the Tribunal from 06-02- 2009 to 09-02-2009 go to show that the learned Tribunal was in a great hurry to decide the case as on 6-2-2009 not only the prayer of the appellant for impleading the agency as a necessary party was declined but penalty was also imposed and the case was fixed on 9-2-2009 for final arguments with the direction that if the fine amount is not paid, the appellant shall loose his right of final arguments. On 9-2-2009 the appellant prayed for time to prefer an appeal against the order dated 6-2-2009 which was rejected and the right of final arguments of the appellant was withdrawn and the case was closed for passing the award. Not only this, the tribunal passed the award on the same date. The alleged cover note which was not considered by the tribunal giving proper opportunity to the appellant for adducing evidence in this regard appears to be relevant documentary evidence as far as fastening the liability is concerned. The tribunal must have taken the document (cover note) on record and have given opportunity of adducing evidence to the parties, specifically in view of the facts that the offending vehicle met with an accident on the day of purchasing itself and also that the insurance policy relied upon by the parties (Ex. NA/4) bears the same cover note No. MG6990171.

For the foregoing reasons, I deem it proper in the interest of justice that the matter be remanded back to the Tribunal for passing award afresh by framing issue on the point that whether the vehicle was insured with the respondent No. 5 on the date of incident or not, giving proper opportunity to the parties for necessary amendments and adducing evidence, in accordance with law.

Accordingly, the appeal filed by the appellant/owner is allowed. The impugned award dated 9-2-2009 is set aside. The matter is remanded back to the tribunal for passing fresh award giving proper opportunity to the parties in the matter as aforementioned. The tribunal is directed to decide the matter finally within six months from the receipt of the tribunal''s records. Parties are directed to appear before the tribunal on 9-4-2012.

Additional Registrar (Judicial) is directed to send the Tribunal''s records within a week.

No order as to costs.