CWP/1309/2011 on 29 December 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.1309 of 2011

Date of Decision : December 29, 2016

National Insurance Company

….Petitioner. versus

Asha & others

…Respondents.

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Judge. For the Petitioner : Mr. Ashwani K. Sharma, Senior

Advocate, with Mr. Jiwan Kumar,

Advocate.

For the Respondents : Mr. Karan Singh, Advocate, for respondents No.1 to 3.

Mr. Deepak Kaushal, Advocate, for respondent No.5

Sanjay Karol, Judge

Parties jointly pray that the matter be disposed of, in terms of a decision rendered by a Coordinate Bench of this Court on 9.9.2016, in CWP No.1944 of 2010, titled as United India Insurance Co. Ltd. v. Akshay Kumar and others, which reads as under:

“By way of present petition, the petitioner has challenged the award dated 28.10.2009 passed by the Court of learned Motor Accidents

…2… Claims Tribunal-II, Solan in MAC Petition No. 15-S/2 of 2008, inter alia on the quantum. Petitioner herein was respondent No. 3 before the learned Motor Accidents Claims Tribunal-II in Claim Petition filed by present respondents No. 1 and 3.

2. Mr. Chauhan, learned counsel appearing for respondents No. 1 and 3 has submitted that in view of the law laid down by the Hon’ble Supreme Court in United India Insurance Company Ltd. Versus Shila Dutta and others, (2011) 10 SCC 509, which has been followed by this Court in Oriental Insurance Company Ltd. Vs. Sh. Vikas Bhopal & others, C.W.P. No. 1749 of 2007, decided on 28th March, 2016, the present petition is not maintainable.

3. The contention of the learned counsel for respondents No. 1 and 3 is that the present petitioner being the contesting respondent before the learned Motor Accidents Claims Tribunal, has in law the right to challenge the award passed by the Motor Accidents Claims Tribunal on the grounds available to it, but the remedy is by way of filing an appeal under the Motor Vehicles Act and not by way of filing writ petition.

4. According to Mr. Sharma, learned Senior Counsel for the petitioner, the legal position as it existed when the writ petition was preferred by the petitioner, did not permit the insurer to assail the quantum by way of filing an independent appeal under the provisions of the Motor Vehicles Act and therefore writ petition was maintainable

…3… at the time when the same was filed. He further prayed that in order to do substantive justice to the parties, the petitioner may be permitted to withdraw the present petition with liberty to avail legal remedy available to him as per law.

5. I have heard the learned counsel for the parties and also gone through the judgments relied upon by them.

6. The fact is that the present writ petition was filed in the year 2010. Faced with this situation, Mr. Sharma, learned Senior Counsel for the petitioner submits that he may be permitted to withdraw the present writ petition with liberty to pursue legal remedy available to the petitioner in law.

7. In my considered view, there is substance in the submission being made by Mr. Sharma and accordingly, the present petition is permitted to be withdrawn by the petitioner with liberty to challenge the award passed by the learned Motor Accidents Claims Tribunal-II, Solan dated 28.10.2009, in accordance with law. It is made clear that the petitioner shall be at liberty to move an appropriate application for the purpose of computing limitation praying therein that the period spent by the petitioner pursuing this petition be condoned for the purpose of limitation.

With the said observations, the present petition is dismissed as withdrawn with liberty granted to the petitioner, as prayed for. No order as to costs.”

…4… Ordered accordingly.

Pending application(s), if any, also stand disposed of.

( Sanjay Karol ), December 29, 2016(sd)

Judge.