NEW INDIA ASSURANCE CO LTD Vs. ANIL

JUDGEMENT

(1.) The appeal is by the Insurance Company challenging the quantum, negligence and the involvement of the vehicle. The Insurance Company had moved an application for defences under all grounds under Section 170 when the driver and owner had originally remained ex parte. It is seen from the contentions raised by parties that it was posted for filing of counter by the claimants to 02.05.2000 when it appears that there was an application filed by the owner and driver to set aside the ex parte order. The order was set aside and the Tribunal also dismissed Cross Objection No.57-CII of 2006 in/and the application, holding that already the Insurance Company had subjected the claimants to intense cross-examination and since the owner and driver were also represented through counsel and they were contesting the case, no permission under Section 170 was necessary. It so happened that the owner and the driver had again remained ex parte. The Insurance Company contends in appeal that the refusal of permission under Section 170 was erroneous. There was a clear case of collusion. The deceased was the brother of the owner of the tractor alleged to have been involved in the accident. They made pretense of entering appearance and as soon as the application moved by the Insurance Company was dismissed, they had again remained ex parte. The closeness of relationship of the claimants to the owner and the conduct of the owner in failing to contest the case were sufficient enough for the Tribunal to have exercised its discretion to allow the Insurance Company to contest the case on all grounds. I find that the order refusing the permission by the Tribunal on 16.05.2000 is erroneous. Since the dismissal of the application is itself among the grounds of appeal, I hold that the insurer was entitled to contest the case on merits as regards quantum and negligence also. This also, in my view, is merely academic. If the contest also is on the basis that the vehicle itself was not involved in the accident, such a defence by the Insurance Company goes into the root of the matter taking it as a jurisdictional issue. It should be possible for an Insurance Company to take such a defence even if it falls outside the realm of Section 149(2) of the Motor Vehicles Act. The contentions such as, that there was no insurance, that there was no accident and that Cross Objection No.57-CII of 2006 in/and the accident did not take place in a public place, are all matters that go into the root of jurisdiction of the Tribunal itself and they shall always be permitted to be taken by any party, who is interested in contesting the claim. An Insurance Company against whom the petition is filed operates on public money and it is bound to protect its own interest as laid down by the Hon'ble Supreme Court in United India Insurance C ompany Versus B ushan Sachdeva, 2002 2 SCC 265, and the Company is entitled to contest the truth of the allegations relating to the involvement of the vehicle.

(2.) There are disturbing facts that emerge from the narration of the case by the claimants. In this case, the deceased was one Ram Kanwar and his brother, Satbir Singh, was the owner of the tractor. PW-1 Bhawani Shankar, who claims to be an eye-witness, states that he, along with two other persons namely, Rohtas and Ghanshyam (PW2), were in the tractor driven by Dharampal. Ram Kanwar deceased was stated to have travelled in the same tractor also from Behrod to Shahjahanpur and alighted at Foladpur for some work and asked the driver to pick him up on his return. The tractor was returning at about 6.30 PM and the deceased Ram Kanwar was standing on the road. While he signalled the tractor to stop, the tractor ran over the deceased by rash and negligent driving of the tractor. It is stated that he was run over under the wheel of the tractor. The deceased was said to have been taken immediately to hospital at Kotputli where he was found bleeding excessively. Dr. O.S.Mehra (PW6), who was at the hospital, has recorded this fact in the OPD slip (Ex.P2) and said to have referred Cross Objection No.57-CII of 2006 in/and the deceased for further treatment at the GH at Gurgaon. It is not known whether the deceased died at the hospital at Gurgaon or he had died at GH, Kotputli itself. Admittedly, no post-mortem had been conducted.

(3.) The accident had taken place on 12.01.1995 and a complaint was given by the widow only on 15.02.1995. The cause for the delay is said to be the fact that her husband had died and she could not immediately give a complaint to the police.