UNITED INDIA INSURANCE CO LTD Vs. MANJU

JUDGEMENT

(1.) HEARD learned counsel for the parties. Respondent Nos. 1 and 2 filed Motor Accident Claim Petition (M.A.C.P.) No. 198 of 2003 against petitioner, the insurance company and Ripusudan Pandey-respondent No. 3 the vehicle owner. Father of the claimants had died in an accident with the vehicle belonging to respondent No. 3. Claim petition was decided on 20.8.2004 by Motor Accident Claim Tribunal/Additional District Judge/Special Judge (Anti Corruption), Bareilly. Claim was allowed for Rs. 1,82,000. In the judgment copy of which is Annexure-7 to the writ petition it is mentioned that respondent No. 3 vehicle owner filed written statement, pleading that suddenly a child had come in front of the Jeep, the driver intended to apply the brake however, his foot pressed the accelerator instead of brake which resulted in the death of father of claimants. It was also pleaded in the written statement that the offending Jeep was insured with the petitioner-insurance company. Cover note number and the date on which it was issued were also mentioned in the written statement. It was also stated that driver of the offending Jeep was holding valid driving licence. Number of the driving licence was also mentioned and name of the driver was also mentioned as Ram Bahadur. It is also mentioned in the judgment that on behalf of the claimants themselves photocopy of the insurance cover note was filed and photocopy of the driving licence of Ram Bahadur driver of the offending Jeep was also filed. It is also mentioned that defendants did not file any oral or documentary evidence regarding accident and negligence of the driver in the accident. Under Issue No. 3 the Tribunal held that on the basis of insurance cover note etc. filed by the claimants it was approved that the Jeep was insured with the petitioner. Under Issue No. 2 the question as to whether at the time of accident Jeep driver was having valid driving licence or not was discussed. The petitioner-insurance company had vehemently argued that the driver was not having valid licence. The plea was accepted and it was held that it could not be proved that the driver was having valid driving licence. Ultimately it was directed that the awarded amount shall be paid at the first instance by the petitioner-insurance company and thereafter it would be at liberty to recover the same from respondent No. 3 the vehicle owner.

(2.) IT has been stated that the said amount has been deposited by the insurance company.

(3.) AFTER judgment dated 20.8.2004, respondent No. 3 filed a restoration application on 18.9.2004 copy of which is Annexure-8 to the writ petition. In the said application it was stated that respondent No. 3 had handed over the case to his advocate Shri Roop Ram Rana for filing proper defence. Thereafter it was mentioned that applicant was not provided opportunity to defend his case on merit and the case was decided ex parte. It was further stated that applicant never engaged Shri H. S. Anand, advocate and his counsel was Shri Roop Ram Rana and that applicant wanted to contest the case on merit. Restoration application was signed by an advocate also. His name is not given but his signatures tally with the signatures of the advocate who signed second written statement-Annexure-3 to the writ petition. Restoration application was registered as Misc. Case No. 9 of 2004 and was allowed on 26.10.2004 by M.A.C.T., Bareilly. The said order has been challenged through this writ petition.