FAO/467/2011 of ICICI LOMBARD GIC Vs AJAY DATYAL on 31 December 2019

Conclusion

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO No. : 467 of 2011

Decided on: 31.12.2019.

ICICI Lombard General Insurance CompanyLimited

.…Appellant.

Versus

The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

Ajay Mohan Goel, Judge (Oral)

By way of this appeal, the appellant has assailedthe award passed by learned Motor Accident Claims Tribunal,Solan, in Claim Petition No. 47-S/2 of 2007, titled as ShriAjay Datyal vs. M/s Sigma Earth Movers and Constructionand others, dated 30.08.2011, which stood decided by thelearned 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 infavour of the petitioner and against the respondentsas their joint and several liability with interest at therate of 7.5% per annum from the date of petition tillthe date of realization. Since the offending vehicle hasbeen proved to be insured with respondent No. 3,therefore, the compensation amount is liable to beindemnified by respondent No. 3, the insurer.However, there is no order as to costs. Memo of costsbe prepared and the file be consigned to records.”

2. Learned Counsel for the appellant has primarilyargued that while passing the impugned order, learnedTribunal has erred in not appreciating that the offendingvehicle, which met with the accident, was not duly insuredwith the Insurance-Company, and the inference, which hasbeen drawn by the learned Tribunal qua Ext. P-C, is contraryto the contents contained therein when compared to otherdocuments, i.e. Ext. P-A and Ext. P-B. His further contentionis that learned Tribunal has erred in not taking intoconsideration the fact that there was evidence to clearlysuggest 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 passedby learned Tribunal is either required to be set aside or to bemodified to the extent that the appellant be granted liberty torecover the award amount from the owner of the vehicle.

3. Learned Counsel for respondent No. 1/claimantsubmits that as far as the contention of learned Counsel forthe appellant that the award passed by learned Tribunal beset aside in totality is concerned, the same is not sustainablein the eyes of law as the claimant is entitled to compensationas stand determined by the learned Tribunal. He howeversubmits that in case this Court gives liberty to the appellantto 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 aswell as respondent No. 1 and having perused the awardpassed by the learned Tribunal as also the documents onrecord, in my considered view, there is merit in the contentionof the appellant that the findings which have been given bythe learned Tribunal qua the insurance of the offendingvehicle are contrary to the evidence on record. It is not indispute that the accident took place on 08.05.2007. Ext.

RW1/C, which is the insurance policy pertaining to theoffending vehicle was issued on 31.5.2007 and was effectivefrom 26.5.2007 to 25.05.2008 midnight. Similarly, cover noteExt. P-C does not contains either the Engine number orChassis number of the vehicle, which was purportedlyinsured therein, whereas Ext. P-A and Ext. P-B (Tax Invoice)depicts the Engine number and Chassis number of thevehicle in issue. Tax invoice Ext. P-B is dated 04.05.2007,meaning thereby that at the time when Cover Note Ext. P-Cwas issued on 04.05.2007, it could not have been thecontention of the owner of the vehicle, who got issued CoverNote Ext. P-C, that he was not aware of the engine numberand chassis number of the vehicle in issue. 5.In view of above, there is merit in the contention oflearned Counsel for the appellant that inference which hasbeen drawn by the learned Tribunal vis-a-vis insurance of theoffending vehicle, i.e. Ext. P-C is wrong. Accordingly, thisappeal is partly allowed by modifying the award passed by thelearned Tribunal to the effect that the appellant-InsuranceCompany 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 tofirst payment of the award amount by the InsuranceCompany to the claimant/respondent No. 1 and onlythereafter, Insurance Company can proceed to recover thesame from the owner of the vehicle.

6. The appeal stands disposed of in above terms, soalso 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/appellanthas no objection in case this application is allowed and theaward amount as prayed for is released in favour of theapplicant. Accordingly, this application is allowed and theaward amount with up-to-date interest, lying deposited in theRegistry of this Court, is ordered to be released in favour ofthe applicant. The amount be directly remitted into the bankaccount of the applicant, details of which, are given in last para of the application. The application stands disposed ofaccordingly.

December 31, 2019

(narender)

(Ajay Mohan Goel)

Judge