The New India Assurance Co. Ltd vs Nikhil Saini
2021 Latest Caselaw 13072 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 518/2021 The New India Assurance Co. Ltd., T.p. Claims Hub, Divisional Office-1St, Abhay Chambers, Jalori Gate, Jodhpur Through Its Authorized Representative.

----Appellant Versus

1. Nikhil Saini S/o Late Hansdev, House No.45, 5Th Gali, Shakti Nagar, Paota C Road, Jodhpur.

2. Narayan Singh S/o Ram Singh, C/o Bharat Singh, Indira Colony, Sashiyon Ka Mohalla, Airforce Gate No.1, Behind Sati Mata Temple, Jodhpur. (Driver)

----Respondents S.B. Civil Misc. Appeal No. 522/2021

The New India Assurance Co. Ltd., Tp Hub, Abhay Chambers, Jalori Gate, Jodhpur.

----Appellant Versus

1. Sanjay Parihar S/o Late Sh. Kailash Chandra Parihar, C/o Marwar Traders, 118, Hanwant-A, Bjs, Paota, C-Road, Jodhpur.

2. Nutan Prakash Parihar S/o Late Sh. Kailash Chandra Parihar, 45, Juni Kalal Sairi, Ratlam Mp.

3. Narayan Singh S/o Ram Singh, C/o Bharat Singh, Indira Colony, Sashiyon Ka Mohalla, Airforce Gate No. 1, Behind Sati Mata Temple, Jodhpur (Driver).

                                                                ----Respondents


For Appellant(s)         :     Mr. Jagdish Vyas.
For Respondent(s)        :


            HON'BLE MR. JUSTICE ARUN BHANSALI
                                Judgment
25/08/2021

These appeals are directed against the common judgment

and awards dated 30.1.2021 passed by the Motor Accident Claims

Tribunal-I, Jodhpur, ('the Tribunal'), whereby, the Tribunal has

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awarded compensation to the tune of Rs.4,65,976/- to claimant -

Nikhil Saini in Claim Application No.554/2011 and Rs.4,08,620/-

to the claimant - Sanjay Parihar & Anr. in Claim Application

No.618/2011 alongwith interest @ 6% per annum. However,

another claim petition filed by Nikhil Saini being Claim Application

No.555/2011 has been rejected.

The applications for compensation were filed seeking

compensation for death of Smt. Babita and Mr. Hansdev by

claimant - Nikhil Saini and for death of Smt. Santosh by claimant

Sanjay Parihar & Anr., who were all travelling in Car No.RJ-15-CA-

0610, which was being driven by its driver - Narayan Singh.

The applications were contested by the Insurance Company

on various grounds including the ground that as owner of the

vehicle has not been impleaded as party, the Insurance Company

cannot be saddled with the liability.

The Tribunal inter alia while deciding the applications for

compensation, came to the conclusion that in view of the

provisions of Section 155 of the Motor Vehicles Act, 1988 ('the

Act'), it was not necessary to implead the legal representatives of

the deceased owner (insured vehicle) as party and awarded

compensation for death of Smt. Babita and Smt. Santosh to the

claimants. The claim petition filed seeking compensation for death

of Hansdev - owner of the vehicle, was rejected.

Learned counsel for the appellant - Insurance Company

made submissions that the Tribunal was not justified in passing

the award for compensation despite the fact that owner of the

vehicle was not impleaded. Submissions were made that the

appellant could only be held liable for payment of compensation,

only if the owner of the vehicle is found liable, as the contract of

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Insurance Company is to indemnify the owner, in case any

compensation is required to be paid by him and, therefore, the

Tribunal was not justified in accepting the applications in absence

of owner of the vehicle and, therefore, the awards impugned

deserve to be set aside.

I have considered the submissions made by learned counsel

for the appellant and have perused the judgments passed by the

Tribunal.

The present is a case of peculiar nature, wherein, two

applications for compensation were filed by Nikhil Saini seeking

compensation for death of his father and mother and father was

owner of the vehicle, who died in the accident. Another application

was filed by Sanjay Parihar and Nootan Prakash Parihar, children

of Smt. Santosh seeking compensation.

The submissions made by learned counsel for the appellant

in substance appears to be justified, however, in the

circumstances of the present case, wherein, the claimant - Nikhil

Saini is the son of the owner of the vehicle and his mother has

also died and apparently there is no other legal representative of

deceased owner of the vehicle, who could be impleaded as party

respondent in the claim applications filed by him as the applicant

could not have impleaded himself again as respondent as legal

representative of owner of the vehicle. As such the plea raised in

this regard in the case of Nikhil Saini has no substance.

So far as the case of Sanjay Parihar & Anr. is concerned, in

that said case, Nikhil Saini could have been impleaded as party

being the legal representative of owner of the vehicle, however, as

all the claim petitions were tried together, in any case, said Nikhil

Saini was before the court in the same trial.

(4 of 5) [CMA-518/2021]

The Tribunal on objections being raised, could have exercised

powers under Order I Rule 10(2) CPC to implead Nikhil Saini as

party respondent to the application filed by Sanjay Parihar & Anr.

The powers can be exercised by the appellate court also. As the

impleadment apparently has no implication other than completing

the array of parties and, therefore, exercising powers under Order

I Rule 10(2) CPC, the son of deceased owner - Nikhil Saini is taken

as party respondent in claim application No.618/2011. The above

direction takes care of the objection raised by the appellant -

Insurance company.

So far as the decision by the Tribunal based on provisions of

Section 155 of the Act is concerned, the said provision reads as

under:-

"155. Effect of death on certain causes of action - Notwithstanding anything contained in Section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer."

A perusal of the said provision would indicate that the

provision has no application to the present circumstance. The

provision deals with the circumstance where the owner of the

vehicle dies after the cause of action for claiming compensation

has arisen against the owner. The provision only indicates that the

cause of action would survive against his estate and against the

Insurer. Even under the said provision, the estate holder after

death of the insured has to be impleaded as party for claiming

compensation against him and the Insurer and in those

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circumstances, the determination as such made by the Tribunal,

cannot be sustained.

No other point on merits has been raised/argued.

In view of the above discussion, while holding that the

determination made by the Tribunal regarding requirement of

presence of the owner of the vehicle, cannot be sustained in the

circumstances of the case, no interference is required in the

awards impugned. The appeals are, therefore, dismissed.

(ARUN BHANSALI),J 25-26-Sumit/-

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