NEW INDIA ASSURANCE CO LTD Vs. MAMTA DEVI

JUDGEMENT

(1.) THIS appeal is made for the limited purpose and it was heard at the stage of admission in the presence of the learned counsel appearing for the insurance company of the Dumper, i.e., I.C.I.C.I. Lombard General Insurance Company Limited. The grievance of such insurance company before this Court in an earlier appeal, which has been disposed on 7.5.2008 only on technical ground that the insurance company of the other vehicle, i.e., Maruti Van can be treated to be third party, when the deceased died sitting in the Maruti Van, therefore, the aforesaid insurance company was made party with the composite liability but not on the basis of contributory negligence. As a result, whereof we disposed of the appeal at the stage of admission and directed such insurance company of the Dumper to make a rectification application in the Tribunal upon notice to the insurance company of the Maruti Van, i.e., Lombard General Insurance Company Limited, the appellant herein, but we find from the judgment and order dated 13.2.2009 that the Tribunal has proceeded only on the issue that the order was not set aside by the Court of appeal, but the Court of appeal was directed to consider the cause upon notice to the appellant/ insurance company. The fallacy of the decision is that calling upon the appellant/ insurance company is not directed to be made as a formality for the purpose of appropriate adjudication and apportionment of the liability, which was the cause before the appellate court. Therefore, unless the Tribunal goes to the root of the contributory negligence, cannot decide the issue whether the appellant/insurance company is partially liable or the respondents/insurance company is fully liable in respect of payment of compensation. Having so, we are of the view that the appeal can be treated to be disposed of at the stage of admission with the direction upon the Tribunal to consider the point of liability in the manner that when either of the insurance companies is liable to pay and the appellant insurance company has not been made party to the original proceedings what grounds satisfied the Tribunal that the respondents/insurance company is not liable in composite manner but in partial manner. Since the claimants are suffer enormously, we are of the view that cause will be considered by the Tribunal as early as possible preferably within a period of two months from the date of communication.

(2.) NO order is passed as to costs.