Allahabad High Court
H.D.F.C. Ergo General Insurance ... vs Smt. Ram Kunvari And Others on 28 April, 2025
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:24164
Court No. - 5
Case :- FIRST APPEAL FROM ORDER No. - 152 of 2024
Appellant :- H.D.F.C. Ergo General Insurance Company Ltd., Lucknow Thru. Officer Auth. Signatory
Respondent :- Smt. Ram Kunvari And Others
Counsel for Appellant :- Dinesh Kumar
Hon'ble Abdul Moin,J.
1. Heard Sri Dinesh Kumar, learned counsel for the appellant.
2. The appeal has been admitted by this Court vide order dated 29.05.2024 and the point for consideration has already been set forth in the said order. For the sake of convenience, the order dated 29.05.2024 is reproduced below:-
"Supplementary affidavit filed by learned counsel for the appellant in compliance of the previous order passed by this court is taken on record.
Shri Dinesh Kumar, learned counsel for the appellant submits that the Motor Accident Claims Tribunal determining the 50-50% contributory negligence of both the vehicles has awarded the whole claim against the appellant-Insurance Company without granting right of recovery from the respondents no.5 and 6.
Matter requires consideration.
However in view of the ground taken in this appeal is only for right of recovery from the respondents no.5 and 6, therefore there is no need to issue notice to respondents no.1 to 4 and the judgment and award is required to be satisfied by the appellant.
Admit.
Issue notice to the respondents no.5 and 6.
Summon the Lower Court Record.
Steps to be taken within a week.
List with service report.
The appellant shall deposit the total decretal amount alongwith interest till the date of deposit with the concerned Tribunal after adjusting the statutory deposit made before this court within a period of four weeks from today, which shall be released in favour of the claimant/respondents in terms of the impugned judgment and award dated 17.02.2024, passed in M.A.C.P. No.05/70/2018; Smt. Ram Kunvari and another Versus H.D.F.C. ERGO General Insurance Company Limited and others by the District Judge/Motor Accident Claim Tribunal, Bahraich, forthwith.
The lower Court record shall be sent to this court after release of the amount. "
3. From perusal of the aforesaid it is thus apparent that the appellant only wants right of recovery from respondents no.5 and 6 and is not aggrieved by the award.
4. Despite notice having issued to respondents no.5 and 6 and the same having been served as per office report dated 16.07.2024 and sufficient time having been granted to them for filing objections, no objections have been filed till date.
5. Today also, nobody responds on behalf of respondents no.5 and 6 and thus the Court proceeds to hear and decide the appeal.
6. As already indicated above, the appeal is only confined to the right of recovery from respondents no.5 and 6.
7. The argument of learned counsel for the appellant is that in an accident which took place on 5.6.2017 the son of the claimant, Raghvendra Singh, who was travelling in a bus, died which accident took place between the bus and the truck.
8. It is contended that learned Tribunal had framed various issues of which issue no.5 was as to whether there was any negligence of the drivers of the vehicles which were involved in the accident. The learned Tribunal while deciding the said issue in one part has indicated that the bus came on the wrong side and the truck driver collided with the bus and in another part of the order it has been indicated that the drivers of the vehicles are 50% each responsible for the said accident but the learned Tribunal has failed to provide that the insurance company would have a right to recovery.
9. In this regard, it is also argued that the learned Tribunal has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Khenyei vs. New India Assurance Co. Ltd. and others - 2015 (2) TAC 677 (SC) where in paragraph 18 (iii) Hon'ble Supreme Court has held that fordetermination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff yet although the Tribunal has cited the aforesaid judgment but has failed to give the right of recovery to the insurance company.
10. Having heard learned counsel for the appellant and having perused the record, it emerges that an accident took place on 05.06.2017 in which the son of the claimant died. The accident was on account of a truck having collided with a bus in which the son of the claimant was travelling. On account of the said accident the son of the claimant died.
11. Learned Tribunal had framed issue no.5 which was as to whether there was any negligence of the drivers of the vehicles which were involved in the accident. However, while deciding the said issue in one part of the order learned Tribunal has indicated that the accident occurred as the bus came on the wrong side which resulted in the truck colliding in the bus and in other part of the order it has indicated that both the vehicles are 50% responsible for the accident yet while finally deciding the matter learned Tribunal has failed to indicate as to whether the Insurance Company would have a right of making recovery from the Drivers of the vehicles responsible for the accident keeping in view the judgment of Hon'ble Supreme Court in the case of Khenyei (supra).
12. Learned counsel for the appellant states that the entire payment has already been made to the claimants.
13. Keeping in view the aforesaid discussion, the appeal is partly allowed. The finding of the learned Tribunal pertaining to issue no.5 is set-aside. The learned Tribunal is directed to examine the said issue afresh and pass a suitable order in accordance with law after hearing all the parties concerned keeping in view the discussion made above.
14. However, the award itself is not interfered with.
15. Let an order in this regard be passed by the learned Tribunal within a period of three months from the date a certified copy of this judgment is brought on record of the learned Tribunal.
16. Let the records be returned as per procedure.
17. The statutory deposit of Rs.25,000/- be remitted to the learned Tribunal as per rules.
Order Date :- 28.4.2025
A. Katiyar
