LAWS(ORI)-1993-2-5

NEW INDIA ASSURANCE CO LTD Vs. MADAN SAHU

Decided On February 01, 1993
NEW INDIA ASSURANCE CO LTD Appellant
V/S
MADAN SAHU Respondents

JUDGEMENT

(1.) BOTH these appeals arise out of an accident claim made before the Motor Accidents Claims Tribunal, Cuttack. On 8.10.1981, a girl aged 8 years died in motor accident alleged to have been caused by the negligent driving of a truck bearing registration No. OSC 4873. The parents of the girl claimed a compensation of Rs. 28,000/ - before the Accidents Claims Tribunal in Misc. Case No. 37 of 1982. The Accidents Claims Tribunal (hereinafter referred to as 'the Tribunal') allowed a compensation of Rs. 10,000/ - against the owner of the vehicle and the vehicle having been insured with the New India Assurance Co. Ltd. (hereinafter referred to as 'the assurance company'), it was directed that the assurance company is to pay the compensation to the claimants.

(2.) AGAINST the aforesaid award of the Tribunal the claimants have preferred M.A. No. 389 of 1991 challenging the quantum of compensation awarded and praying for enhancement thereof. The assurance company has also challenged the award on the ground that the liability cannot be transmitted to it as the vehicle was not covered by any insurance policy. Both the appeals were analogously taken up for hearing and final disposal.

(3.) NONE of these aforesaid contentions is acceptable in law for the reasons hereinafter stated. In the claim case the assurance company was not originally impleaded. The owner of the offending truck, who alone was impleaded in the original application, filed his written statement disclosing that the vehicle was insured with the assurance company and also gave the policy number. The claimants thereafter filed an application to implead the assurance company as a party. That application being allowed, notice was issued against the assurance company, who was described as O.P. No. 2 in the Misc. Case. Opposite party No. 2 entered appearance in court on 31.10.1983 and after repeated adjournments the written statement was ultimately filed on 22.7.1985. In the written statement it was stated that except disclosing the name of the assurance company, no further details have been disclosed for which reason it is unable to trace out the validity or otherwise of the policy. It generally denied its liability to pay the compensation to the claimants. Once the case was dismissed for non -appearance of the applicant and the claimants preferred M.A. No. 72 of 1987 in this court praying for being given an opportunity of adducing evidence in support of their claim. The same having been allowed, the case was remanded back to the Claims Tribunal for fresh disposal in accordance with law. Both the opposite parties were again noticed and the case was proceeded afresh from the stage of hearing. The case was taken up for hearing on 7.1.1991 and 3 witnesses on behalf of the petitioners were examined and cross -examined. The counsel for the petitioners filed an application under Order 11, Rule 12, Civil Procedure Code, praying for discovery of the insurance policy and the case was adjourned to 4.2.1991 directing opposite party No. 2 to make the discovery. Opposite party No. 2 did not produce the insurance policy and, therefore, the court adjourned the matter to 22.2.1991 for evidence to be recorded on behalf of the opposite party No. 2. Since no evidence was tendered on behalf of opposite party No. 2, the hearing of the case was closed and it was then adjourned for hearing of arguments. Thus, there cannot be any scope for entertaining a grievance that due opportunity was not given to opposite party No. 2 to contest the proceeding in the trial court.