SAMARJEET SINGH Vs. KHURSHEED KHAN

JUDGEMENT

(1.) Heard Sri Vidya Kant Shukla, learned counsel for the appellant and Sri Vijay Prakash Mishra, learned counsel for Insurance Company. None appears for the owner and driver of the vehicle involved in the accident.

(2.) His appeal, at the behest of the claimant, challenges the judgment and award dated 28.5.2019 passed by Motor Accident Claims Tribunal, Kanpur Nagar (hereinafter referred to as 'Tribunal') in MACP No.271 of 2013 re-deciding the matter and reducing the compensation from Rs.3,79,220/-toRs1,19606/with interest at 7 %from date of judgment. The tribunal re decided the entire matter on an application by the owner of the vehicle involved in the accident and against whom the earlier Tribunal had passed judgment and decree holding him solely liable to compensate the claimant exonerating the insurance company. By the subsequent award the tribunal fastened the liability on owner and insurance company but reduced the compensation payable to the claimant injured non tortfessor.

(3.) According to Sri Vidya Kant Shukla, learned Advocate for the appellant, the application was filed under Order 9 Rule 13 of C.P. Code 1908 (herein after referred as The Code) by the owner of the vehicle as the award was passed against the owner alone as it was held that the owner had failed to prove that the driver who was driving the offending vehicle and who was held to be negligent had a valid driving license. The insurance company was exonerated in the decision rendered on 29 4 2017 which was not challenged. The only reason for requesting, setting aside of the award was that maybe review was not maintainable and therefore an application under Order 9 Rule 13of the Code was filed. The application was made only bringing to the notice that the driver had a proper driving licence and there was no prayer to set aside the entire award so that insurance company can be held liable to satisfy the award as all other facts were proved before the Tribunal and no fresh evidence even after the application under Order 9 Rule 13 was placed before the Tribunal except the x-rox copy of the driving licence of the driver of the offending truck. The owner had not challenged the quantum or compensation awarded to the claimant by the award dated 29.4.2017 which was sought to be reviewed. The owner nor the insurance company requested for rehearing or deciding all the issues afresh. The learned counsel for the appellant has heavily relied on five judgment namely, in Raj Kumar Vs. Ajay Kumar and another , 2010 LawSuit(SC) 1081, Hari Babu Versus Amrit Lal and others , 2019 2 TAC 718 (All.), Mahoora Bano Versus National Insurance Company and others,2020 1 TAC 688 (S.C.), Civil Appeal Nos. 1079-4081 of 2019 (National Insurance Company Limited Vs. Mannat Johal and others decided by Supreme Court on 23.4.2019 and also of Allahabad High Court in First Appeal From Order No.3183 of 2009 ( Arun Bajpai Vs. Mushir Ahmad and others, decided on 13.12.2017.