The New India Assurance Company ... vs Iqbal
2022 Latest Caselaw 5860 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 320/2022

The New India Assurance Company Limited, T.P. Claims Hub, Branch Office Nagaur T.p. Claims Hub, Divisional Office Ist, Abhay Chambers, Jalori Gate, Jodhpur

----Appellant Versus

1. Iqbal S/o Amir Deen @ Aam Deen, Village Bhik Ji Ki Dhani, Chaipura, Palina, Tehsil Phalodi, District Jodhpur

2. Sikander S/o Amir Deen @ Aam Deen, Village Bhik Ji Ki Dhani, Chaipura, Palina, Tehsil Phalodi, District Jodhpur (Minor).

3. Sabina Khatu D/o Ameer Din @ Aam Deen, Village Bhik Ji Ki Dhani, Chaipura, Palina, Tehsil Phalodi, District Jodhpur

4. Safiyat Khatu D/o Ameer Din @ Aam Deen, Village Bhik Ji Ki Dhani, Chaipura, Palina, Tehsil Phalodi, District Jodhpur

5. Salma D/o Amir Deen @ Aam Deen, Village Bhik Ji Ki Dhani, Chaipura, Palina, Tehsil Phalodi, District Jodhpur (Minor).

----Claimants

6. Samas Deen S/o Ahmad Ali Muslim, Village Moriya, Ps Lohawat, District Jodhpur. (Driver)

7. Satar Khan S/o Amir Deen Muslim, Village Moriya Munjasar, Ps Lohawat, District Jodhpur. (Owner)

For Appellant(s) : Mr. Deepak Vyas for Mr. J. C. Vyas.

For Respondent(s)        :     None present.



           HON'BLE MS. JUSTICE REKHA BORANA

                                    Order

21/04/2022

Counsel for the appellant has submitted that in the present

matter the insurance policy in question was an 'Act only policy'

and therefore in terms of the ratio as laid down in National

(2 of 3) [CMA-320/2022]

Insurance Company Limited Vs. Balkrishnan & Anr: (2013)

1 SCC 731, the insurance company cannot be held liable. It has

further been submitted that even the order of pay and recover

cannot be passed against the insurance company in terms of the

ratio as laid down in Swaran Singh's Case. Counsel for the

appellant also relied upon the judgment passed in S.B. Civil Misc.

Appeal No.696/2003; The Oriental Insurance Company

Limited, Jodhpur Vs. Smt. Sharda Devi & Ors.

Counsel appearing on behalf of claimants submitted that in

view of the ratio as laid down in Indira Devi & Ors. Vs. Naresh

& Anr; 2011 Lawsuit (Raj) 1, Civil Misc. Appeal

No.1942/2008, the expression third party would include

everyone, be it a person traveling in another vehicle, or one

walking on the road or a passenger in the vehicle itself which is

the subject-matter of the insurance policy and therefore, the

insurance company would be liable for paying compensation to the

present claimants who are a third party.

It is relevant to note that the ratio laid down in

Balakrishnan (supra), New India Assurance Co. Ltd. Vs.

Asha Rani & Ors Appeal (Civil) No.5385/2001 decided on

17.08.2001 and Oriental insurance Co. Ltd., Vs. Meena

Variyal reported in (2007) 5 SCC 428 has not been taken into

consideration in the case of Indira Devi (supra).

The matter requires consideration.

Admit.

Issue Notice.

Issue notice to the respondents, returnable on 25.05.2022.

Heard on stay application.

(3 of 3) [CMA-320/2022]

In the facts and circumstances of the case, the award dated

23.10.2021 shall remain stayed qua the insurer. It is made clear

that the respondents-claimants would be at liberty to execute the

said award against the owner of the vehicle.

(REKHA BORANA),J 19-Sachin/-

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