UNITED INDIA INSURANCE CO LTD Vs. SURESHKUMAR GANDHI

JUDGEMENT

(1.) THIS appeal by the insurer challenging the judgment and award passed by M.A.C.T., Bellary dated 24.03.2005 in M.V.C. No.857/1996. Accident is of the year 1996. Judgment and award passed by the Tribunal is of the year 2005. Appeal has been filed on 02.08.2005. Even after lapse of nine years, appellant has not taken steps to get service of notice on 3rd respondent completed and records would indicate that appeal had been dismissed on 24.03.2010 which order came to be recalled on 20.06.2013. When matter was listed before the Court on 05.08.2013, learned counsel submitted that needful has been done. Placing the submission made by learned counsel, Registry was directed to verify and issue notice to R3. On verification, it was noticed by the Registry for want of furnishing of copies of appeal papers and I.A. for delay, notice had not been issued. In other words, submission made by learned counsel was incorrect. Hence, matter again came to be listed before Court on 01.10.2013. Notice has been issued thereafterwards to R3. Unserved postal cover available in 'B' file would indicate that notice is not served for want of addressee name being in different and at earlier point of time, it has been returned with a postal shara, no such person in the address. Hence, keeping this appeal pending further would not serve any purpose, since appellant is not diligent. Hence, instead of dismissing the appeal for default and not giving scope for the appellant to seek for recall of said order at a later stage, merits of the appeal is examined.

(2.) INSURER contends in the present appeal that liability of the insurer if at all, if any is to be restricted to a sum of Rs.6,000/ - only, since the claim is made in respect of the damage caused to third party vehicle and there being no additional premium collected towards third party claim, insurer is not liable to indemnify. Written statement filed before the Tribunal made available by Shri S.S.Koliwad, learned counsel appearing for insurer having been perused by me would clearly indicate that no such plea was raised before the Tribunal. When such plea is not raised before the Tribunal, it would go without saying that claimants would not have had opportunity to meet such a plea. For the first time, before the Appellate Court, such a plea has been raised. Division Bench of this Court in the case of Ramakrishna Reddy vs. The Manager, Purchase, HMT Limited, Bangalore and Another reported in ILR 2002 KAR 1905, while examining as to whether insurer should be permitted to raise a plea which was not raised before the Tribunal has answered the same in negative. It has been held as under:

(3.) KEEPING the principles laid down by the Division Bench in mind, when the facts on hand are examined, it is to be noted at the cost of repetition that plea now raised in the present appeal has not been raised before the Tribunal by insurer and as such, appellant insurer cannot take a different stand or raise a plea which has not been raised or pleaded before the Tribunal.