Bajaj Allianz Gen. Ins. Co. Ltd vs Zainab Khatoon And Others
2021 Latest Caselaw 1506 j&K

                                                                      Sr. No.18

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                               MA No.215/2016
                                               IA No.01/2016

Bajaj Allianz Gen. Ins. Co. Ltd.                                  .....Appellant(s)

                       Through: Mr. Sunny Mahajan, Advocate.


                  Vs

Zainab Khatoon and others.                                     ..... Respondent(s)

                       Through: Mr. Raghu Mehta, Advocate.

Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                    ORDER

The appellant, Insurance Company, has filed the present appeal

against the interim award dated 08.06.2016 passed by the Motor Accidents

Claim Tribunal (Addl. District Judge) Rajouri on the ground that the Tribunal

while passing the impugned award has not taken into consideration the

objections filed by the appellant in the claim petition, filed by the respondent

Nos.1 to 3 herein, claimants in the claim petition. It is submitted that the FIR

specifically mentioned Aftab S/o Mohd. Shabir as driver of the vehicle which

met with an accident whereas in the claim petition filed the driver of the vehicle

is shown to be Ghulam Mohi-Ud-din, respondent No.4 in the present appeal.

The impleading of Ghulam Mohi-U-din as driver of the vehicle is not in

consonance with the document relied upon by the claimants and, therefore, a

serious doubt is created as to the actual driver of the vehicle and there appears to

be a fraud played by the claimants by falsely incorporating respondent No.4 as

driver of the insured vehicle at the time of alleged accident.

Mr. Sunny Mahajan, learned counsel for the appellant has indeed

argued as per the averments contained in the appeal.

Mr. Raghu Mehta learned counsel appearing on behalf of the

respondent Nos.1 to 3/claimants has argued that the accident in question and the

ownership of the vehicle are not in dispute. The vehicle was insured with the

appellant-company is also not in dispute. In view of the above, it cannot be said

that the Tribunal has not awarded interim compensation in accordance with law.

The purpose of awarding interim compensation is to provide immediate relief to

the claimants and nothing more and the tribunal has passed the interim award

keeping in view this aspect is what is pleaded by the learned counsel.

The appeal is maintainable against the interim award passed under

Section 140 of the Act is no more res integra in view of the judgment of the

Hon'ble Apex Court reported in 2007 ACJ 1934 titled Yallwwa and others Vs.

National Insurance Co. Ltd. And another. It is also not in dispute that the

Insurer can raise the defence as available to it in terms of sub section (2) of

Section 149 of the Act.

The interim award passed by the tribunal does not admittedly refer to

the objections filed by the appellant-company to the claim petition. The Tribunal

ought to have considered the objections filed by the Insurance- company and the

same were having weight or not were required to be gone into by the tribunal

before deciding the claim of the claimants under Section 140 of the Act. The

insurer cannot be saddled with the liability unless the Tribunal takes into

consideration the objections filed by the insurer and rejects the same on merits.

The learned Tribunal having failed to consider the objections raised

by the appellant while passing the impugned interim award, the argument of the

counsel for the claimants that the interim award does not call for any

interference by this Court cannot be accepted. The appeal is required to be

allowed and is, accordingly, allowed. The impugned interim award passed by

the Tribunal is set aside. The Tribunal shall decide the claim under Section 140

MV Act after according consideration to the objections taken by the appellants

herein in the claim petition. It is made clear that the order of this Court cannot

be construed as any opinion with regard to merits of the claim petition. The

Tribunal is at liberty to pass appropriate orders after hearing both the sides

afresh.

Learned counsel for the parties shall appear before the Tribunal on

14.12.2021.

The amount, if any, deposited by the appellant in the present appeal

shall stand released in favour of the appellant.

( Puneet Gupta ) Judge Jammu 22.11.2021 Narinder

NARINDER KUMAR SHARMA 2021.11.22 15:48 I attest to the accuracy and integrity of this document