NEW INDIA ASSURANCE COMPANY LTD Vs. ANOKHEY LAL

JUDGEMENT

(1.) BY this petition, the petitioner has sought relief of writ of certiorari for quashing the order dated 07. 02. 2009 (Annexure-7) of the writ petition) passed by the Motor Accident Claims Tribunal, Aligarh (hereinafter referred to as 'the Claims Tribunal) in MACP No. 76 of 2007 Anokhe Lal and others Vs. Anwar Khan and others, whereby application of the petitioner under Section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') for contesting the claim petition on merits has been rejected by the claims tribunal.

(2.) THE brief facts of the case are that an accident took place on 29. 6. 2006. It is alleged that in the said accident Omwati Devi was hit by Tata 407 Truck No. U. P. 81/d-2522 owned by respondent no. 7, as a result of which she died. The claimants/respondents no. 1 to 6 filed a claim petition on 12. 2. 2007 under Sections 140 and 166 of the Act being MACP No. 76 of 2007 before the Claims Tribunal claiming compensation of Rs. 6,37,000/- for the death of deceased Omwati Devi aged about 45 years. The claimant-respondent no. 1 is husband and the claimants-respondents no. 2 to 6 are sons of deceased Omwati Devi. The claim petition was contested by owner of offending motor vehicle by filing his written statement on 11. 1. 2008 before the Claims Tribunal, which is on record as Annexure-2 of the writ petition. The driver of the truck was also made a party in the claim petition but he did not contest the claim petition nor did he file his written statement. The aforesaid claim petition was also contested by the petitioner/insurer/insurance Company by filing its written statement on 28. 5. 2008. A true copy of written statement filed by the Insurance Company/petitioner on 28. 05. 2008 is on record as Annexure-3 of the writ petition.

(3.) ON 19. 12. 2008 issues were framed by the Claims Tribunal in the said claim petition. Thereafter the claimants examined Dharmendra Singh S/o Anokhey Lal as PW-1 and Manveer S/o Surajpal as PW-2 in order to prove the averments made in the claim petition. These witnesses were not cross examined by the owner of the truck. But the petitioner Insurance Company cross examined them. It is stated that the owner of the truck was not contesting the claim petition properly as he had neither examined himself as a witness nor he had produced the driver of the truck as a witness before the Tribunal. The owner had merely filed his written statement and has not cross examined the witnesses PW-1 and PW-2 produced by the claimants. The owner has failed to lead any evidence from his side and as such there was no contest by the owner of the truck. Since the owner of the truck was not contesting the claim petition effectively, therefore, the petitioner/insurance Company moved an application under Section 170 of the Act seeking permission of the Tribunal to contest the case on all the grounds which are available to the insurer as well as to the owner/insured of the offending motor vehicle. A true copy of the application under Section 170 of the Act is on record as Annexure-6 of the writ petition. The Claims Tribunal vide order dated 07. 02. 2009 has illegally rejected the said application of the petitioner merely on the ground that the owner of the offending motor vehicle has filed written statement and as such contesting the claim petition without considering both the facts and law, hence this petition.