National Insurance Co. Ltd vs Alok Dhauria And Ors

Heard, learned counsel for the appellants, Mr. Amresh Kumar in all these nine Miscellaneous Appeals.

The National Insurance Company Limited has preferred these appeals against award passed in different claim applications, arising out of the same motor accident took place on 14.08.2017 in which 10 persons lost their lives. They were returning to their house from Rameshwaram temple after worship in Bolero Pick up van bearing Reg. No. JH-05BM-4556. When they reached near village- Bela Chowk, the driver of Tanker bearing Reg. No. NL-01G-7331 by driving the vehicle in very rash and negligent manner without precaution of public safety came from the opposite direction and dashed against the said Bolero Pick up van bearing Reg. No.JH-05BM-4556, resulting in death of ten persons travelling in Bolero vehicle. All the ten persons have preferred claim cases.

As per the report submitted by the District Judge-XIII-cum-MACT, East Singhbhum at Jamshedpur vide letter no.13/2020 dated 18.01.2020 ten Motor Claim Application Cases were instituted before the learned Tribunal vide:-

(1) MACC-206/2017 which was disposed of on 11.10.2018.

(2) MACC-207/2017 which was disposed of on 11.10.2018.

(3) MACC-208/2017 which was disposed of on 11.10.2018.

(4) MACC-209/2017 which was disposed of on 11.10.2018.

(5) MACC-210/2017 which was disposed of on 20.11.2018.

(6) MACC-211/2017 which was disposed of on 20.11.2018.

(7) MACC-212/2017 which was disposed of on 20.11.2018.

(8) MACC-213/2017 which was disposed of on 20.11.2018.

(9) MACC-214/2017 which was disposed of on 25.09.2018.

(10) MACC-215/2017 which was disposed of on 20.11.2018.

The present appeals as per submission of the learned counsel for the appellants Insurance Company, Mr. Amaresh Kumar are against corresponding nine such award but not against the award in connection with of MACC No.206/2017 which was disposed of on 11.10.2018.

Learned counsel for the appellant, Mr. Amresh Kumar has assailed the impugned award on two counts. First the owner of the offending Tanker bearing Reg. No. NL-01G-7331 namely, Rajendra Singh, son of Kison Singh, resident of M 125/B, Paharpur Road, P.O & P.S. Kolkata, District-Kolkata, West Bengal-700024 and the driver of the said vehicle, Rabindra Yadav, son of Sri Bishnu Dey Yadav, resident of Syndicate Budbud, P.O and P.S.-Burdwan, District- Burdwan, West Bengal-713403 have not put their appearance even though the learned Tribunal has sent summons by both way i.e. by Nazarat as well as registered post. They have not appeared before the learned Tribunal and the case was fixed for ex-parte proceeding against O.P. Nos. 2 and 3 vide order dated 17.03.2018.

Under the aforesaid circumstances, when the Tribunal has denied the contributory negligence of both the vehicles, while deciding issue no. 1 it was incumbent upon the owner of the offending Tanker bearing Reg. No. NL-01G-7331 to produce all the relevant documents of the vehicle including the permit as well as driving license of the driver in view of the judgment passed by the Hon'ble Apex Court in the case of Amrit Paul Singh Vs. Tata AIG General Insurance Company Limited reported in (2018) 7 SCC 558.

Learned counsel for the appellant has submitted that even though the vehicle was insured but if there is violation of Section 66 of the Motor Vehicle Act so as to contravene the provision under section 149(2) of Motor Vehicle Act, the liability shall be fastened upon the insurance company but with a rider clause to recover the same from the owner of the insured vehicle. Since the owner has not put his appearance along with driver, it is incumbent for this court of appeal to issue notice as Insurance Company has been saddled with liability in 10 Claim cases, which caused prejudice to the Insurance Company.

Learned counsel for the appellant has fairly submitted that right of recovery has not been adjudicated by the learned Tribunal, as such, to adjudicate the same, this Court may issue notice in the peculiar facts and circumstances of the present case.

Learned counsel for the appellant has submitted that there is a delay of few days in preferring the appeals, as such, notice may be issued to the owner and driver of the offending Tanker bearing Reg. No. NL-01G-7331.

Under the aforesaid circumstances, let notice be issued to owner of vehicle, Rajendra Singh, son of Kison Singh, resident of M 125/B, Paharpur Road, P.O & P.S. Kolkata, District-Kolkata, West Bengal-700024( owner of the offending Tanker bearing Reg. No. NL-01G-7331) and driver of offending Tanker Rabindra Yadav, son of Sri Bishnu Dey Yadav, resident of Syndicate Budbud, P.O and P.S.-Burdwan, District- Burdwan, West Bengal-713403 (driver of the offending Tanker bearing Reg. No. NL-01G-7331) under both process i.e. under registered cover with A/D as well as under ordinary process in main memo of appeal as well as in interlocutory application, for which requisites etc must be filed by 31st January, 2020.

The Commissioner of Police, Kolkata as well as the Superintendent of Police, Burdwan is also directed to inform the owner and driver respectively to appear before this Court.

Put up this case after receipt of service report.

In the meantime, the Insurance Company shall deposit the entire awarded amount along with interest before the learned Tribunal within a period of 90 days from today as the accident is of year, 2017 and the claimants have been deprived from the fruits of socio beneficial legislation. If the aforesaid amount is deposited, the same shall be disbursed in favour of claimants after due notice and verification by the learned Tribunal as no relief has been sought against to the claimants.