National Insurance Co. Ltd. vs Santosh Kumar and Others

A.K. Gohil, J.—The appellant/Insurance Company of the offending truck has filed this appeal against the award dated 23rd July, 1999. There was head-on collision on 5.2.1995, between truck No. MKN-176 and tractor No. MP 13/K-4407. The respondent No. 1 is the owner of the tractor. The Tribunal has awarded a compensation of Rs. 24,000/-, against the Insurance Company of the truck for the damages to the tractor as well as for the loss suffered on account of tractor lying die for a period of 2-3 months.

Mr. Swami, learned Counsel for the appellant submitted that the owner of the tractor has already taken compensation for the repairs of the tractor from the Insurance Company of the tractor and in this case also such an objection was taken, but on this objection neither any issue was framed nor any inquiry was held, nor the Insurance Company of the tractor was made party, otherwise this Would have come on record that in such circumstances when the tractor owner has already taken compensation, then he is not entitled to claim any compensation from the Insurance Company of the truck, who is alleged to be the offending vehicle.

Having heard the learned Counsel for the parties and perusal of the record it is clear that the Insurance Company has taken aforesaid objection before the tribunal and the Tribunal has also framed Issue No. 3 about the liability and recovery from the Insurance Company of the truck, but has not framed any issue whether the said Insurance Company of the tractor is a necessary party or not and has not directed to make the said Insurance Company of the tractor as a party. When the owner of the tractor has already taken compensation from its Insurance Company, the said Insurance Company is also necessary party to consider whether the same was taken towards full and final settlement or not.

Considering the objections and looking to the pleadings and issues framed by the Trial Court, this appeal is allowed, the impugned order is set aside and the case is remanded to the Tribunal. The Tribunal shall make the said Insurance Company as party in the petition and, after giving notice and opportunity shall decide Issue No. 3.

At this stage submission of Mr. Rajesh Lal, learned Counsel for the respondent/claimant is that he has already withdrawn the said 50% amount deposited by the appellant. I have perused the order dated 19.10.2000. In the said order there is no direction for any payment to respondent No. 1. However, I am surprised how he has taken the amount. He is directed to deposit the said amount before the Tribunal within a period of one month. The Tribunal shall decide the case within six months from the date of appearance of the parties before it. Parties to this appeal shall appear before the Tribunal on 24.2.2003.