FAO/467/2011 on 31 December 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO No. : 467 of 2011 Decided on: 31.12.2019. ICICI Lombard General Insurance Company Limited .…Appellant. Versus Shri Ajay Datyal and others …Respondents.

Coram

The Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No For the appellant : Mr. Jagdish Thakur, Advocate. For the respondents : Mr. P.S. Goverdhan, Advocate for respondent No. 1/claimant. : Respondents No. 2 and 3 are ex parte.

Ajay Mohan Goel, Judge (Oral)

By way of this appeal, the appellant has assailed the award passed by learned Motor Accident Claims Tribunal, Solan, in Claim Petition No. 47-S/2 of 2007, titled as Shri Ajay Datyal vs. M/s Sigma Earth Movers and Construction and others, dated 30.08.2011, which stood decided by the learned Tribunal in the following terms:- “In view of my findings on the issues above, the petition is allowed and an award of
2,84,200/-

  

     

including interim compensation, if any, is passed in favour of the petitioner and against the respondents as their joint and several liability with interest at the rate of 7.5% per annum from the date of petition till the date of realization. Since the offending vehicle has been proved to be insured with respondent No. 3, therefore, the compensation amount is liable to be indemnified by respondent No. 3, the insurer. However, there is no order as to costs. Memo of costs be prepared and the file be consigned to records.”

2. Learned Counsel for the appellant has primarily argued that while passing the impugned order, learned Tribunal has erred in not appreciating that the offending vehicle, which met with the accident, was not duly insured with the Insurance-Company, and the inference, which has been drawn by the learned Tribunal qua Ext. P-C, is contrary to the contents contained therein when compared to other documents, i.e. Ext. P-A and Ext. P-B. His further contention is that learned Tribunal has erred in not taking into consideration the fact that there was evidence to clearly suggest that the offending vehicle was insured subsequently, i.e. after the date of accident, which was clearly borne out

 from Ext. RW1/C. He has thus argued that the award passed by learned Tribunal is either required to be set aside or to be modified to the extent that the appellant be granted liberty to recover the award amount from the owner of the vehicle.

3. Learned Counsel for respondent No. 1/claimant submits that as far as the contention of learned Counsel for the appellant that the award passed by learned Tribunal be set aside in totality is concerned, the same is not sustainable in the eyes of law as the claimant is entitled to compensation as stand determined by the learned Tribunal. He however submits that in case this Court gives liberty to the appellant to recover the award amount from the owner of the vehicle, then for that, claimant has no objection.

4. Having heard learned Counsel for the appellant as well as respondent No. 1 and having perused the award passed by the learned Tribunal as also the documents on record, in my considered view, there is merit in the contention of the appellant that the findings which have been given by the learned Tribunal qua the insurance of the offending vehicle are contrary to the evidence on record. It is not in dispute that the accident took place on 08.05.2007. Ext.

 RW1/C, which is the insurance policy pertaining to the offending vehicle was issued on 31.5.2007 and was effective from 26.5.2007 to 25.05.2008 midnight. Similarly, cover note Ext. P-C does not contains either the Engine number or Chassis number of the vehicle, which was purportedly insured therein, whereas Ext. P-A and Ext. P-B (Tax Invoice) depicts the Engine number and Chassis number of the vehicle in issue. Tax invoice Ext. P-B is dated 04.05.2007, meaning thereby that at the time when Cover Note Ext. P-C was issued on 04.05.2007, it could not have been the contention of the owner of the vehicle, who got issued Cover Note Ext. P-C, that he was not aware of the engine number and chassis number of the vehicle in issue.

5. In view of above, there is merit in the contention of learned Counsel for the appellant that inference which has been drawn by the learned Tribunal vis-a-vis insurance of the offending vehicle, i.e. Ext. P-C is wrong. Accordingly, this appeal is partly allowed by modifying the award passed by the learned Tribunal to the effect that the appellant-Insurance Company shall be at liberty to recover the compensation/ award amount, as has been awarded by the learned Tribunal,

 from the owner of the vehicle. This however will be subject to first payment of the award amount by the Insurance Company to the claimant/respondent No. 1 and only thereafter, Insurance Company can proceed to recover the same from the owner of the vehicle.

6. The appeal stands disposed of in above terms, so also pending miscellaneous application(s), if any. CMP No. 1809 of 2019

7. This application has been moved by the applicant/ claimant for the release of the compensation amount of
2,84,200/- alongwith up-to-date interest accrued thereon, which is lying deposited in the Registry of this Court.

8. Learned Counsel for the non-applicant/appellant has no objection in case this application is allowed and the award amount as prayed for is released in favour of the applicant. Accordingly, this application is allowed and the award amount with up-to-date interest, lying deposited in the Registry of this Court, is ordered to be released in favour of the applicant. The amount be directly remitted into the bank account of the applicant, details of which, are given in last

 para of the application. The application stands disposed of accordingly. (Ajay Mohan Goel)

Judge December 31, 2019 (narender)