UNITED INDIA INSURANCE COMPANY LIMITED Vs. KACHARI BAI

JUDGEMENT

(1.) These two appeals arise out of a common award and thus, they are being heard and decided together by this common judgment.

(2.) Briefly stated facts of the case are that the on 8/10/1997 a trolley bearing registration No. MP-23/B/5493 owned by Respondent No.5-Ankalu Chourey was being used for filling and removal of soil to level the playing field. The case of the claimants was that the Principal and Teachers of the school had requested the owner to lend the trolley which was being used of the purpose of removal of soil from one place to other. In fact, the claimants had first filed a civil suit in which owner and insurance company were made a party and also the Principal and Teachers of the school alleging that they were negligent. In the civil suit, the insurance company took a stand that the civil Court had no jurisdiction to decide the matter and the remedy available to the claimants was to file a claim petition under the Motor Vehicles Act, 1988 (hereinafter called as 'the Act').

(3.) On the objection raised by the insurance company, the civil suit was rejected and returned to the claimants. Thereafter, the claimants filed a claim petition under Sec. 166 of the Act. In the claim petition, the insurance company again took objection on the ground of jurisdiction and in fact in this appeal also this is the main contention against the award passed by the Claims Tribunal. I am of the considered opinion that the insurance company which is a public undertaking cannot be allowed to blow hot and cold in the matter. When the parents of the deceased child filed a civil suit then the insurance company raised an objection that remedy lay before the Motor Accident Claims Tribunal. After dismissal of the civil suit, again objection of jurisdiction was raised in the petition filed under the Act. It is highly unethical on the part of the insurance company, to raise such objection. Without going to the merits of the plea raised by the insurance company, I hold that the insurance company is barred in view of previous conduct to raise such a plea. The facts as proved on record are that the children were moving loose soil ("muram") from one place to other. It is also not in dispute that the Trolley was not attached with a Tractor at that stage. The stand of the insurance company is that since the trolley was not attached with any tractor it would not be a motor vehicle. This question may be answered in some other proceeding but in this case, looking to the conduct of insurance company, I do not permit it to raise this objection and uphold the jurisdiction of the Claims Tribunal.