Hafiz Mohammad Umar vs Kalloo - 1987 Supreme(MP) 702

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Advocate Appeared:
For the Appellant : R.S. Garg
For the Respondent: B.I. Mehta, Samdani

Headnote:Motor Vehicles Act, 1939 – S.92 – A – amount of interim compensation – to be paid by insurer – in case vehicle concerned not found insured with insurer – such amount to be reimbursed by owner of vehicle.
        Short Note
       The appellant – owner of the truck admitted in the written statement that the said truck was insured with respondent No.3.
       2. The learned Member of the Tribunal by the impugned order directed the appellant as the owner of the said truck to pay or deposit Rs. 7500/ – with the Tribunal for being paid to the claimant.
       3. Held: In this appeal the grievance of the learned counsel for the appellant has been that as the said truck was insured with respondent No. 3, the learned Member of the Tribunal ought to have held the Insurance Company also jointly and severally liable along with the appellant to pay the aforesaid amount of Rs. 7500/ – and in support of his submission the learned counsel for the appellant placed reliance on the decisions reported in AIR 1985 Punjab 96 (Oriental Fire & General Insurance Co. Ltd. v. Smt. Beasa Devi); AIR 1986 Punjab 116 (Oriental Ins. Co. Lid. Chandigarh v. Sitla Prashad), AIR 1987 Raj 77 and AIR 1987 Raj. 116.
       4. The learned counsel for the claimant submitted that according to him the said truck was insured on the day of the accident with respondent No. 3. He, therefore, supported the submission made by the learned counsel for the appellant.
       5. Shri Samdhani learned counsel for respondent No.3 Insurance Company submitted that on the day when the application under S.92 – A of the Motor Vehicles Act was filed, admittedly the Insurance Company was not made a party. He, therefore, submitted that in absence of any written statement filed by the Insurance Company and in absence of any admission at this wage to the effect that the said truck was insured with them by the appellant, even under S.92 – A of the said Act the Insurance Company cannot be held liable to pay or deposit the sum of Rs. 7500/ – by way of interim compensation. He further submitted that the Insurance Company has yet to take defences available to them under the Motor Vehicles Act and, therefore, in absence of any such material on record on behalf of the Insurance Company, the Insurance Company cannot be ordered to pay or deposit Rs. 7500/ – for payment to the claimant.
       6. However, the learned counsel for the appellant submitted that he has already filed a photostat copy of the covernote of the Insurance of the said truck which prima facie shows that said truck was insured with the Insurance Company, namely the respondent No.3. He further submitted that before passing the impugned order the Insurance Company did net avail of opportunity to file reply to the said application and, therefore there is nothing on record to assume that the said truck was not insured at the time when the accident took place. He further submitted that in case it is found ultimately on merits that the Insurance Company cannot be held liable for any amount of compensation, the appellant is prepared to give an undertaking that he would reimburse the amount of Rs. 7500/ – to the Insurance Company.
       7. Thus, after hearing the learned counsel and after going through the case law cited, I am of opinion that as submitted by the learned counsel for the Insurance Company, within one month from to – day he shall verify and ascertain whether the said truck was insured with the Insurance Company by the appellant on the relevant day off the accident and shall, accordingly, deposit Rs. 7500/ – with the Tribunal within that period of one month from to – day.
       8. The amount on being so deposited shall be paid to the claimant No. 1 Kalu. On the aforesaid amount of Rs. 7500/ – being deposited by the Insurance Company, the appellant shall also give an undertaking before the Tribunal that in case the Insurance Co. is held not liable on merits for any amount of compensation in this case, the appellant shall reimburse the Insurance Company to the extent of Rs.7500/ – . The Impugned order is consequently modified to that extent and it is ordered that even for the amount of Rs. 7500/ – the owner as well as the Insurance Co. are jointly and severally held liable as indicated above. AIR 1986 Pun. 116, AIR 1987 Raj. 77 and AIR 1987 Raj. 116 relied on. Appeal allowed.