NEW INDIA ASSURANCE COMPANY LIMITED Vs. BACHAN KAUR

JUDGEMENT

(1.) BOTH the appeals are connected arising out of same accident. The appeal in FAO No. 512 of 2000 is at the instance of the insurance company challenging the liability and the appeal in FAO No. 251 of 2000 is at the instance of the claimants for enhancement of compensation.

(2.) THE appeal by the insurance company is on issue of liability to state that in the petition filed though the insured had been cited as respondent 1 -A, the petition was dismissed against respondent No. 1 -A on the failure of the claimants to take publication as substituted service when the owner was not served. The insurance company was, however, served and the Tribunal proceeded to examine the case and assessed the compensation making the insurance company liable.

(3.) THE above issue would require to be still seen in the context of defence taken by the insurer that the owner had not been served and when the petition was dismissed against the owner, the insurer alone could not be made liable. The principle that the liability of the insurance company could arise only if the owner is liable is rested on the principle of indemnity that the owner's liability shall be ensured before the insurance company could be made liable. The liability is not in any way secondary for under Indian law the liability of an insurer is joint and several. If there was a situation that could exonerate the owner, such as, when the vehicle was not involved or the claimant himself was guilty of negligence or there were any other circumstances for exoneration of the owner, the insurer alone to be selectively made liable would not be possible. But in a case where the insurance particulars are admitted and the involvement of the vehicle is also an admitted fact, then with or without owner, it must be seen that the claimants were entitled to the compensation and the claim cannot be allowed to be defeated against the insurer by the only reason that the Tribunal allowed the case to be dismissed against the owner for an act of indiscretion of a party who could not have known the consequence of non -impleadment. The lapse does not go into the root of the problem namely of tracking the liability of the owner in a case where involvement of his vehicle was admitted and the policy had indeed been issued by the insurance company for insurance. I will not allow this technical objection to prevail to deny to the claimant the entitlement that has been assessed against the insurer.