HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Lucknow Bench Lucknow ----------- A.F.R. Court No. - 27 Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 858 of 2008 Petitioner :- Oriental Insurance Co. Ltd. Through Its Senior Divisional Respondent :- Vinod Kumar Gupta And 7 Ors. Petitioner Counsel :- Anil Srivastava Hon'ble Devi Prasad Singh,J.
Hon'ble Devendra Kumar Arora,J.
[Delivered by Hon'ble Mr. Justice Devi Prasad Singh]
1.Heard Sri Anil Srivastava learned counsel for the appellant, Sri Vinod Gupta, learned counsel for the opposite party No.1 to 4 and Sri Prabhakar Tiwari, learned counsel for the opposite party No.5. None appeared for opposite party No.6 and 7. Perused the record.
2.Present appeal under Section 173 of Motor Vehicles Act, 1988 has been preferred against the impugned award dated 8.5.2008, passed by the Additional Sessions Judge, F.T.C.-8/Motor Accident Claims Tribunal, Lucknow in Claim Petition No.188 of 2000.
3.The accident occurred on 11.1.2000. When the claimant along with his wife and other family members were travelling in a tempo with registration No. U.P.-32- T-5803 to Chandrika Devi Temple, next to Bansal Brick Kiln, near Nandana Power House, a Bus (undertaking by U.P.S.R.T.C.), with registration No.U.P.-32-Z-1611, coming from reverse direction, hit the tempo at about 1:30 p.m., and ran away. In the said accident, the claimant's younger son Himanshu Gupta, aged about 13 years, a student of class-8, suffered serious injuries. The family members rushed to nearby hospital and from there, to the Medical College, and admitted in Emergency Ward. On 12.1.2000 at 1:30 p.m., Himanshu Gupta succumbed to injuries. F.I.R. was lodged and claimants approached the Tribunal. The Tribunal framed different issues with regard to accident necessary for adjudication and held that Insurance Company shall be liable to pay compensation of Rs.2,41,500/-. Feeling aggrieved with the impugned award, the appellant approached this Court under appellate jurisdiction.
4.While assailing the impugned award, the appellant's counsel raised two fold arguments. Firstly, learned counsel for the appellant relied upon the judgment reported in [2009 (27) LCD 476]: National Insurance Company Ltd. Vs. Smt. Jairani and others, wherein, the division Bench held that in such case, where it is fault of the bus driver of U.P.S.R.T.C., then it shall be U.P.S.R.T.C., which shall be responsible to pay compensation and not the Insurance Company even if the Bus is duly insured. The second submission of the learned counsel for the appellant is that the application moved under Section 170 of Motor Vehicles Act, 1988 was kept pending by the Tribunal hence, the matter be remitted to the Tribunal to hear afresh.
5.We have considered the arguments advanced by the parties.
6.The first limb of argument of the learned counsel for the appellant relying upon the case of Smt. Jairani (supra), that U.P.S.R.T.C., shall be liable to pay compensation is concerned, Sri Prabhakar Tiwari, learned counsel for the respondent relied upon the case reported in [2010 (28) LCD 1559]: United India Insurance Co. Ltd., Lucknow Vs. U.P.S.R.T.C., Lucknow and others.
7.In the case of Jairani (supra), undoubtedly, the Division Bench held that in case the offending Bus is an undertaking with U.P.S.R.T.C., then in such a situation, the U.P.S.R.T.C., shall be liable to pay compensation in terms of award. However, Sri Prabhakar Tiwari submits that the judgment of the Division Bench of this Court in the case of United India Insurance Co. Ltd., Vs. U.P.S.R.T.C. (supra), has been overruled and set aside by Hon'ble Supreme Court in Civil Appeal No.5901 of 2011: Uttar Pradesh State Road Transport Corporation. Vs. Kulsum and others (arising out of S.L.P. (C) No.1969 of 2008), by judgment and order dated 25.7.2011. The operative portion of the judgment is reproduced as under:
"43. Perusal thereof would show that there has not been any violation of the aforesaid terms and conditions of the policy. Respondent-Insurance Company has also failed to point out violation of any Act, Rules or conditions of the Insurance. Insurance Company has no legal justification to deny the payment of compensation to the claimants.
44. In the light of the foregoing discussions, the Appeal filed by Insurance Company fails, wherein it has been directed that the amount would first be paid by the Company, with right to it to recover the same from owner of the vehicle. This we hold so, as the liability of the Insurance Company is exclusive and absolute.
45.Thus, looking to the matter from every angle, we are of the considered opinion that Insurance Company cannot escape its liability of payment of compensation to Third Parties or claimants. Admittedly, owner of the vehicle has not violated any of the terms and conditions of the policy or provisions of the Act. The owner had taken the insurance so as to meet such type of liability which may arise on account of use of the vehicle.
46.Apart from the above, learned counsel for Insurance Company could not point out any legal embargo which may give right to it to deny the payment of compensation. Thus, legally or otherwise liability has to be fastened on the Insurance Company only.
47.In the light of the aforesaid discussion, the Appeals of the Corporation are allowed. The impugned judgment and order passed by High Court qua the Corporation are hereby set aside and quashed and we hold that the Insurance Company would be liable to pay the amount of compensation to the claimants.
48.Appeals filed by the Corporation thus stand allowed and the Appeal filed by the Insurance Company stands dismissed with costs. Counsel's fee quantified at Rs.10,000/- in each Appeal."
8.Now, coming to second limb of argument with regard to grant of permission under Section 170 of Motor Vehicles Act. A perusal of the impugned award shows that though application filed by the appellant was pending but appellant was permitted to file written statement. Pleading on record in terms of written statements, seems to have been considered by the Tribunal. There appears to be no justification to remand the matter for trial afresh. In the case, relied upon by the learned counsel reported in [2009 (27) LCD 476]: National Insurance Company Ltd. Vs. Smt. Jairani and others, the Tribunal does not seem to have permitted to file written statement, not plea with regard to written statement raised by it was considered. Though, in the present case, since argument of learned counsel for the appellant has been duly considered, it is not necessary to refer the matter to Tribunal to decide the controversy afresh because of technical fault. No other ground has been raised nor argument has been advanced by the appellant's counsel while assailing the impugned award.
9.Accordingly, the appeal lacks merit and fails. The appeal is dismissed. The impugned award is affirmed. Let remaining amount if any, be deposited before the Tribunal. The amount deposited in this Court, shall be remitted to Tribunal immediately by the Registry and the Tribunal shall release the amount in terms of award expeditiously say, within six weeks from the date of deposit of amount by the appellant.
[Justice Devendra Kumar Arora] [Justice Devi Prasad Singh]
Order Date :- 8.8.2011
Rajneesh AR-PS)