Allahabad High Court
New India Assurance Co. Ltd. ... vs Smt. Veena Sinha And Others on 28 February, 2019
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 26
Case :- FIRST APPEAL FROM ORDER No.352 of 1997
Appellant :- New India Assurance Co. Ltd. Bareilly
Respondent :- Smt. Veena Sinha And Others
Counsel for Appellant :- Kartikeya Saran
Counsel for Respondent :- M.K.Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Prateek Samadhiya holding brief of Sri Kartikey Saran.
2. By means of this appeal, the appellant has challenged the judgment and interim award dated 13.3.1997 passed by Motor Accident Claims Tribunal, Bareilly, in Motor Accident Claim Case No.52 of 1992 (Smt. Veena Sinha Vs. Sri Rafeeq Ahmad).
3. Facts of this case are not mentioned.
4. There are two points raised: firstly, that the policy was not in vogue and despite that defence has been taken, the Tribunal has fastened liability on Insurance company; and, secondly, the Tribunal has awarded the amount with 12% rate of interest, which is also bad.
5. Learned Advocate for Insurance company has relied on the judgment of National Insurance Company Limited Vs. Sobina Iakai (Smt.) and others, (2007) 7 SCC 786, and J. Kalaivani and others Vs. K. Sivashankar and another, (2007) 7 SCC 792.
6. These judgments will apply when the matter is finally argued and not at the stage of No Fault Liability and even if it is proved, they will have recovery rights.
7. On going through the impugned award, it appears that the issue regarding non-existing insurance policy can only be established after fullfledged trial which requires adducing evidence and examining the witnesses thereof. Moreover, as stated by the learned counsel for the Insurance Company, criminal complaint filed by the Insurance Company are pending for investigation. Therefore, at this stage, this Court is not inclined to decide the aforesaid issue of policy, not being in vogue, raised by the learned counsel.
8. In this view of the aforesaid facts and taking into consideration the peculiar facts and circumstances of the case, it appears to be appropriate to direct the learned Tribunal to consider the aforesaid contention raised by the learned advocate for the Insurance Company at the time of consideration of main claim petition and the learned Tribunal shall not treat it to be constructive res judicata while considering the main claim petition.
9. However, this Court is inclined to direct the appellant Insurance Company to deposit the awarded amount, if yet not deposited, before the learned Tribunal and on being deposit as such, the said awarded amount shall be invested in cumulative FDRs till final disposal of claim petitions. Needless to state that the amount granted while considering application under Section 140 of the M.V. Act shall be subject to final outcome of the main claim petition. It is further clarified that if any claim petition is withdrawn or dismissed in any manner qua present appellant, in that event, the amount deposited by the appellant Insurance Company shall be refunded along with interest accrued. It is also made clear that this Court has not rendered any decision on merits and the learned Tribunal, without being influenced in any manner, shall decide the claim petitions independently.
10. It is not made known whether it is continuing policy or it was a new policy. However, if the moneys are deposited and if the final order holds that the insurance company is not liable, it can be granted recovery rights.
11. It is not known whether the claim case no.52 of 1994 still pending or has been decided. If it is still pending, all these issues can be considered at the time of final disposal.
12. With the aforesaid directions, the appeal is partly allowed.
Order Date :- 28.2.2019
Irshad
