FUTURE GENERALI INDIA INSURANCE COMPANY LTD Vs. SAFEEYA

JUDGEMENT

(1.) This common judgment shall decide the above noted appeals, which have been preferred under Sec. 173 of the Motor Vehicles Act, 1988[M.V. Act], by the contesting parties raising certain issues arising out of a common judgment-cum-award dtd. 21/7/2018, passed by the learned Presiding Officer, Motor Accident Claims Tribunal[Tribunal], Patiala House Court, New Delhi, in MACP. No. 137/20163 and MACP. No. 135/20164, whereby the claim petition preferred by the respondent No. 1/claimant/injured under Ss. 166 and 140 of the M.V. Act was allowed and the liability to pay compensation was fastened upon the Insurance Company, which is being assailed by the appellant/Insurance Company in MAC.APPs. 1033/2018 and 1041/2018. On the other hand, the claimants/injured persons, namely Mr. Safeeya and Mst. Ishrat have instituted the aforesaid appeals bearing MAC.APPs. 304/2019 and 306/2019, thereby assailing the common judgment-cum-award dtd. 21/7/2018 so as to seek enhanced compensation for the injuries and permanent disability suffered in the motor accident on 5/12/2015.

(2.) The 5th appeal being MAC.APP. 379/2023 is filed by the injured/claimant assailing the impugned judgment-cum-award dtd. 21/11/2022 passed by the learned Presiding Officer, Motor Accident Claims Tribunal, Patiala House Court, New Delhi, whereby his claim petition under Ss. 166 and 140 of the M.V. Act, in respect of permanent disability to the extent of 85% suffered by him arising out of the injuries sustained in the same accident i.e. 5/12/2015 has been allowed, awarding total compensation in the sum of Rs.88,33,363.00 with interest @ 9% from the date of filing of the petition till realization. However, it was held that the policy of insurance in question was a fabricated document, and thus the same Insurance Company has been exonerated of its financial liability to pay compensation to the claimant and instead the liability to pay compensation has been fastened upon respondents No. 2 and 3 i.e. driver/Manoj Kumar and registered owner/Devender respectively, who have not cared to contest the matter at any stage. Incidentally, the appellant/insurance company in MAC.APPs. 1033/2018 and 1041/2018 also seek recovery rights against respondents No. 2 and 3 i.e. driver and registered owner respectively. The amount of compensation which has been awarded by the Tribunal, has already been paid to the two claimants in the aforesaid matters.

(3.) Learned counsel for the claimants has urged that during the course of proceedings in MACP. No. 137/2016 involving injured/claimant Mr Safeeya and MACP. No. 135/2016 involving injured/claimant Mst Ishrat, the insurer never put up a case that the insurance cover issued in respect of the offending vehicle was a forged and fabricated document and even during the course of these appeals, no applications have been moved under Order XLI Rule 27 of the Code of Civil Procedure, 19085 so as to additionally prove such evidence on record. It is urged that the insurer is making an attempt to wriggle out of its liability to pay compensation and its denial is on the basis of evidence led by it in MACP. No. 136/20166 involving claimant/injured Aas Mohd. It has been pointed out that the claimant/injured Aas Mohd., who was just 24 years of age at the time of the accident, suffered 85% disability, which is in the nature of permanent physical impairment in relation to right lower limb for the injuries sustained in the accident, substantiated by Disability Certificate (Ex. CW-1/1) and yet no amount of compensation has been received by him till date. It is urged that gross injustice has been caused by the misconduct and dilly-dallied strategy adopted by the Insurance Company, inasmuch as it took several adjournments to lead its evidence in MACP. No. 136/2016 and the misery of the appellant has only been aggravated due to the driver and registered owner of the offending vehicle remaining untraceable.