NATIONAL INSURANCE CO LTD Vs. PRASANNA KUMAR MITRA

JUDGEMENT

(1.) IN the appear under the Letters Patent the judgment in Miscellaneous Appeal No. 164 of 1986 is assailed. The National Insurance Co. Ltd., (hereinafter referred to as the 'insurer') calls in question legality of the judgment of learned Single Judge on the ground that the entire liability has been erroneously fastened on it. The said appeal and Misc. Appeal No. 151 of 1986 are interlinked. Appellat in both is the insurer. Both have their matrix in Misc. Case No. 4 of 1982 filed by the legal representatives of one Narendra Kumar Khatei (hereinafter referred to as the deceased).

(2.) THE background facts relevant for determination of the question whether the judgment of the learned Single Judge is correct are as follows : On 11 -10 -1981 at about 5 p. m. one Narendra Kumar Khatei lost his life on account of an accident in which a truck bearing registration No. OSP 671 was involved. Prasanna Kumar Mitra is the owner of the vehicle and the vehicle was insured with the insurer. For the sake of convenience the owner is described as insured hereinafter. The widow of Narendra and his daughter and, parents lodged a claim Under Section 110A of the, Motor Vehicles Act, ,1939 (in short, the 'old Act') claiming compensation of Rs. 1,50,000/ -. The Tribunal held that the total compensation payable was Rs. 1 lakh. However, it quantified the insurer's liability at Rs. 50,000/ -, and held that the insured was to pay the balance. The insured questioned the conclusion and contended in M. A. No. 164 of 1986, that the policy having not been produced the entire liability should have been, fastened on the insurer. By the impugned judgment the plea was found favour with the learned Single Judge, who relying on a decision of the Apex Court is National Insurance Co. Ltd., New Delhi v. Jugal Kishore and Ors. : AIR 1988 SC 719, held that the insurer was to pay the entire compensation as the original police had not been produced. It is relevant to mention that the award was assailed by both the insured and the insurer. The former's appeal was numbered as Misc. Appeal No. 164 of 1986. whereas the latter's appeal was numbered as Misc. Appeal No. 151 of 1986. By order dated 14 -3 -1991, the learned Single Judge before whom Misc. Appeal No. 164 of 1986 was placed directed 1hat the said appeal was to be placed the next day for hearing along with Misc. Appeal No. 151 of 1986. It is not clear whether Misc. Appeal No. 151 of 1986 was heard along with M. A. No. 164 of 1986 the next day, but the order -sheet shows that further hearing in Misc. Appeal No. 164 of 1986 was completed and the appeal was disposed of that day. The judgment in Misc. Appeal No. 164 of 1986 is the subject -matter of challenge in the Letters Patent appeal. The parties do not dispute that Misc. Appeal No. 151 of 1986 was not disposed of that day. Since both the Misc. Appeals assailed the same, to avoid unnecessary complications both the appeals should have been heard and disposed of together, to avoid unnecessary complications. Be that as it may, at the request of the parties we have taken up both the Letters Patent Appeal and Misc. Appeal No. 151 of 1986 for disposal together. In the Letters Patent Appeal, the insurer has filed an application for accepting certain documents as additional evidence. We have considered the prayer. We do not consider it necessary to deal with those documents as additional evidence because of the view we propose to take. We, however, make it clear that the documents could be taken as additional evidence in view of their relevancy for a proper adjudication of the dispute

(3.) A preliminary objection was raised by the learned counsel for the insured about the maintainability of the appeal. According to him Section 110D of the old Act entitled the aggrieved person to lodge only one appeal in the High Court and therefore, when that power is once exercised, power of the High Court to hear and decide the appeal is exhausted and the Letters Patent do not create any right of appeal. It is further urged that the purpose of right of appeal envisaged Under Section 110D cannot be enlarged to enable another appeal being filed In the same forum viz. the High Court. Strong reliance is placed on two decisions of the Madhya Pradesh High Court reported in Vijayaraje Scindia (Rajmata) and Ors. v. Maharaj Nadhavrao Scindia and Ors. :1988 JLJ 86: and Uttam Singh and Ors. v. National Insurance Co. Ltd., and Ors. : AIR 1988 MP 199. The point needs careful consideration. Under the Orissa High Court Order, 1948, Letters Patent of Patna High Court was made applicable to this Court. Clause TO of the Letters Patent of the Patna High Court which applies to our High Court reads as follows :