NAGESHWAR PRASAD MEHTA Vs. RAJESH KUMAR JAIN

JUDGEMENT

(1.) This appeal is directed against order dated 13.7.2001 recorded by the 1st Additional District Judge, Madhepura-cum-Motor Accidents Claims Tribunal in M.V. Case No. 2 of 1989.

(2.) It will appear that on 18.7.2003 the last date of hearing on admission learned counsel for the respondent No. 2, Oriental Insurance Co. Ltd. (to be referred to as 'the insurer') had appeared but not the respondent No. 1, namely, Rajesh Kumar Jain and Deepak Kumar Jain, the substituted heirs of the owner of the vehicle. Prior to that also, on 15.7.2003 the respondent No. 1 was not present. Therefore, on 18.7.2003 the learned counsel for the appellant and for the insurer were heard and the case was again adjourned for hearing the respondent No. 1, if present on the next date or for recording the order. On 21.7.2003 also, none appeared on behalf of the respondent No. 1. The parties present were finally heard and with their consent, since this appeal mainly related to the interpretation of order of this court dated 26.6.2000 recorded in M.A. No. 586 of 1998 (Annexure 2), this appeal is being disposed of at this stage.

(3.) Motor Vehicles Claims Case No. 2 of 1989 was preferred by the claimant Nageshwar Prasad Mehta, the appellant here whose son had died while travelling in a bus owned by the father of the respondent No. 1 and insured by the insurer. The learned Tribunal fixed the compensation at Rs. 52,400 out of which the insurer had already paid Rs. 15,000 under Section 92-A of the Motor Vehicles Act, 1939. The learned Tribunal directed the insurer to pay the rest of the amount (Rs. 37,400) to the claimant with interest at the rate of 12 per cent per annum from the date of application, within one month of the order which was recorded on 4.9.1998, failing which the insurer was to pay penal interest at the rate of 18 per cent. Against that order the insurer filed Misc. Case No. 586 of 1998 claiming that its liability was limited to Rs. 15,000 only and also challenged the grant of interest. This matter was heard by this court on 26.6.2000 by which time the owner of the offending vehicle, respondent Mahabir Prasad Jain, as he had died, was substituted by the present respondent No. 1 by order dated 27.10.1999. Before recording the order dated 26.6.2000 aforesaid, apart from the appellant, the respondent No. 1 and substituted heirs of the respondent No. 2 were also heard through their counsel. From perusal of that order it will appear that only point that was raised and argued by the parties was whether or not the liability of the insurer was limited to Rs. 15,000. Hearing the parties this court recorded following order: