Allahabad High Court
National Insurance Comp. Ltd. ... vs Smt. Kusum Pandey And 4 Ors on 27 May, 2024
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:40349
Court No. - 21
Case :- FIRST APPEAL FROM ORDER No. - 364 of 2008
Appellant :- National Insurance Comp. Ltd. Lko.Through Its Administrative
Respondent :- Smt. Kusum Pandey And 4 Ors
Counsel for Appellant :- O.P.Srivastava
Counsel for Respondent :- Kalika Prasad Pandey,Arvind Kumar Mishra,Jai Prakash Mishra,Madan Mohan,Mata Prasad Yadav,Rama Pati Shukla,Vinay Mishra
Hon'ble Jaspreet Singh,J.
1. Heard Shri O. P. Srivastava, learned counsel for the appellant and Shri K. P. Pandey, learned counsel who has put in appearance on behalf of the respondents no.1 and 2/claimants.
2. The record indicates that during pendency of the instant appeal, the appellant has moved C.M.Application No.84837 of 2015 seeking to delete the respondent no.5 from the array of the parties as he had died on 16.04.2000 i.e. prior to the date of even filing the appeal.
3. Another application bearing No.134066 of 2019 has been filed to bring on record the heirs of deceased respondent no.3, who is said to have died on 28.04.2016. The said application has been moved on 08.11.2019. However, it is noticed that there is no accompanying application seeking condonation of delay and setting aside abatement.
4. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 assailing the award dated 24.12.2007 passed by MACT/ADJ, Court No.3, Sultanpur in Claim Petition No.150 of 1994 whereby the Tribunal has awarded a sum of Rs.1,79,500/- alongwith 6% interest from the date of the application till the date of its actual payment.
5. Learned counsel for the respondents, on the other hand, has pointed out that in respect of the accident in question which occurred on 18.05.1994, two persons namely Mohd. Salim and Hari Shanker Pandey expired. Two separate claim petitions were filed.
6. It has further been pointed out that the heirs of Mohd. Salim had preferred a Claim Petition No.142 of 1994 which came to be allowed by means of award dated 07.09.2002.
7. It has also been pointed out that the present appellant company had preferred an appeal before a Division Bench of this Court bearing number FAFO No.663 of 2002 and the said appeal came to be dismissed by means of order dated 11.01.2011.
8. It has also been pointed out that the instant claim petition bearing FAFO No.150 of 1994 filed by the heirs of the deceased Hari Shanker Pandey has been allowed by the claims Tribunal by means of order dated 24.12.2007 and while dealing with the issue no.1, the Tribunal returned a finding that the accident occurred on account of rash and negligent driving of the vehicle bearing number URS 605.
9. It is thus urged that once the findings in respect of the same accident regarding rash and negligent driving and the involvement of the driver has been upheld by the Division Bench of this Court in FAFO No.663 of 2002 vide judgment dated 11.01.2011. The instant appeal also must receive the same fate as two contradictory findings cannot prevail. A copy of the judgment of the Division Bench dated 11.01.2011 has been placed before the Court for perusal and the same is taken on record.
10. The learned counsel for the appellant has raised a solitary question that the accident did not occur on account of rash and negligent driving of Ram Anjore respondent no.4 but on account of rash and negligent driving of the respondent no.5.
11. The learned counsel for the appellant could not dispute the fact that in the accident, two persons had died and in so far as the finding that the accident was caused on account of rash and negligent driving of the respondent no.4 herein was also the subject matter in the FAFO No.663 of 2002 which has been decided on 11.01.2011 and this finding has become final.
12. Taking note of the aforesaid as well as noticing the fact that in respect of the same accident, the Tribunal had recorded a finding that the accident occurred on account of rash and negligent driving by Ram Anjore which has been affirmed by the Division Bench of this Court in FAFO No.663 of 2002 vide judgment dated 11.01.2011 and the appellant who had filed both the appeals and having failed in FAFO No.663 of 2002 and had not assailed that order any further, consequently the said finding is binding on this Court.
13. Even otherwise the appellant has not brought on record the heirs of deceased respondent no.5 and even the application for substitution relating to the heirs of the respondent no.3 is also not accompanied by an application seeking condonation of delay and setting aside abatement but nevertheless in the ends of substantive justice, this Court does not deem appropriate to delve into the technical question which otherwise would render the appeal of the appellant as abated. Accordingly, the two applications filed by the appellants are allowed. He shall carry out the necessary amendments during the course of the day.
14. Nevertheless, in light of the decision of the Division Bench passed in FAFO No.663 of 2002 dated 11.01.2011, the said finding has already obtained finality and is binding on this Court. The only ground raise by the appellant in light of the decision of the Division Bench In FAFO No.633 of 2002 decided on 11.01.2011 holds the fields the field and is binding.
15. Consequently, there is no merit in the appeal which is accordingly dismissed. Award dated 24.12.2007 passed in Claim Petition No.150 of 1995 by the Additional District Judge, Court No.3/MACT, Sultanpur is affirmed. Costs are made easy. The record of the Tribunal shall be returned forthwith.
16. Any amount deposited and lying before this Court shall be remitted to the Tribunal to be released in favour of the claimant-respondents and any shortfall in the amount shall also be paid within a period of six week from today to the claimants by the appellant in light of the decision of the Division Bench in FAFO No.663 of 2002 decided on 11.01.2011 holds the field and is binding.
Order Date :- 27.5.2024
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