NEW INDIA ASSURANCE COMPANY LTD Vs. SUCHITA DEVI

JUDGEMENT

(1.) Appellant/Insurer/Op No.2, the New India Assurance Company Ltd through the Deputy Manager has raised propriety of the judgment dated 22.06.2011 and award dated 19.09.2011 passed by 3rd Additional District Judge-cum- Additional Motor Vehicle Accident Claims Tribunal, Naugachia, Bhagalpur in Claim Case No. 174/2006 whereby and whereunder insurer has been directed to pay the amount appertaining to Rs. 4 Lacs as compensation wherefrom Rs. 50,000/- paid in lieu of Section 140 of the Motor Vehicle Act (for brevity "the Act") was to be deducted along with interest @ of 6% per annum.

(2.) On account of death of Ramotar Sharma, a carpenter aged about 28 years on 14.08.2004 in a motor vehicle accident caused by a bus bearing Registration No.JH-4A 9394 at Durgapur More, PS. Puraini, Distt-Madhepura and for which, Puraini PS Case No. 21/2004 was registered, and further, having vehicle insured under the appellant/OP. No.2, the claimant, wife of deceased, namely, Suchita Devi filed claim case asking for compensation disclosing the monthly income of deceased appertaining to Rs. 4000/- per month.

(3.) Insured as well as insurer were only made parties. From the lower court record, it is evident that on account of nonappearance of owner, vide order dated 16.10.2008, the case was fixed for ex parte hearing against the owner. It is also evident that vide order dated 06.02.2009, the prayer made on behalf of appellant in terms of Section 170 of the Act, has been allowed. After going through the judgment impugned in consonance with the relevant order-sheets, it is evident that after appearance of appellant on 08.03.2007, as the appellant failed to file WS within reasonable time, on account thereof, vide order dated 02.12.2008, appellant was debarred from filing WS. That means to say, once the appellant/OP has been debarred from filing WS and further no prayer has been made on behalf of appellant/OP to recall that order, in the aforesaid facts and circumstances of the case, the pleading whatever made subsequently thereof, had gone out of consideration and that happens to be the reason behind that in spite of having the objection raised on behalf of appellant by way of WS so filed on 08.12.2008 is not taken note of. The aforesaid extraordinary situation having arisen on account of having been debarred raised ticklish question for consideration, i.e. (a) statutory right in terms of Section 149(2) of the Act could be allowed to be availed by the appellant, (b) when prayer made on behalf of appellant, though subsequently, has been allowed in terms of Section 170 of the Act, then in that event, the status of the parties as well as scope of the appeal.