Allahabad High Court
Aasif Manjoor And Another vs Ram Parsad And Others on 24 August, 2017
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 44
Case :- FIRST APPEAL FROM ORDER No. - 3149 of 2009
Appellant :- Aasif Manjoor And Another
Respondent :- Ram Parsad And Others
Counsel for Appellant :- S.A. Lari,Vashishtha Tiwari
Counsel for Respondent :- Arun Kumar Mishra,Ashok K.Jaiswal,Kundan Mishra
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. By way of this appeal, the appellant, who is insured, has challenged the award whereby the entire liability has been fastened on the insured and the Insurance company has been exonerated.
2. It is submitted by the learned Counsel for the appellant that the Tribunal has mislead itself and exonerated the Insurance company on the ground that each and every person in the vehicle was not separately insured. I have not adverted to the facts as the appeal has to be decided on bare question of law and bereft of any facts, which are not necessary in the present case.
3. The record, which is appended to this memo of appeal also has the copy of the policy. It is an admitted position of the facts that it emerges from the policy that it was a private car package policy. The learned Tribunal has mislead the policy and has mistakenly come to the conclusion that the policy in question was an act only policy whereas the policy is a package policy. This finding of facts is erroneous and requires to be quashed. The finding of fact that driver did not have proper driving licence is self contradictory as in paragraph 11 the learned Judge shows that from 10.8.2003 till 9.8.2006 the licence holder driver had valid driving licence. No evidence was led by the insurance company, despite this the Tribunal held in favour of opponent no. 2 i.e. Insurance Company which is erroneous finding.
4. Learned Counsel for the appellant strenuously urged that the Apex Court recently in Oriental Insurance Company Ltd. Vs. Surendra Nath Loomba and others, 2012 Law Suit (SC) 756, and in National Insurance Company Ltd. Vs. Balakrishnan and another, 2012 Law Suit (SC) 757, has held that passengers may and may not have been the separately insured nor separate premium for each head is paid would not dis-entitle the insured to be reimbursed by Insurance Company.
5. Learned Counsel for the Insurance company namely United India Insurance Company has submitted that there is clear breach of policy and the Tribunal has rightly exonerated them and the recovery rights have been given to them, therefore, the appeal has to be dismissed. One more aspect in favour of the appellant namely that out of the very said accident, several claim petitions came to be filed but they were at different places. Unfortunately, the present appellant was faced with the Tribunal at Gorakhpur, who decided a case on 6.8.2009 and the other claim petition was filed at Deoria where while allowing the claim petitions, the Insurance company was made liable. This judgment is of 31.5.2007. This judgment was though shown to the Tribunal, the Tribunal has brushed aside the same which could not have been done. It was pointed out that the said decision would operate as res judicata and more so it is not disputed by the learned Counsel for the Insurance company that the Insurance company has not challenged the order in M.A.C.P. No.244 of 2005 given by Motor Accident Claim Tribunal on 31.5.2007.
6. In the light of this, the appeal requires to be allowed. The interim order directing the appellant to deposit 50% of the amount is set aside. They would be entitled to recover entire amount ordered to be paid by them from the Insurance Company.
7. Sri Mishra appearing for the owner states that the amount, which is lying in the fixed deposit, be returned to the appellant. The Insurance Company shall deposit the entire decretal amount with interest till date before the Tribunal within 12 weeks from today and Tribunal shall disburse the rest of the amount to the claimants without security.
8. Appeal stands allowed partly. The judgment and decree dated 6.8.2009 as it saddles liability on owner is quashed. Instead the decree be satisfied by Insurance Company.
Order Date :- 24.8.2017
Irshad
