National Insurance Co.Ltd v. Rahtoo and Others

Court No. - 2

¶1Case :- FIRST APPEAL FROM ORDER No. - 1171 of 1999 Appellant :- National Insurance Co.Ltd. Respondent :- Rahtoo And Others Counsel for Appellant :- A.K. Srivastava With

¶2Case :- FIRST APPEAL FROM ORDER No. - 565 of 1999 Appellant :- National Insurace Co. Ltd. Respondent :- Ram Pal And Another Counsel for Appellant :- A.K. Srivastava,Komal Mehrotra Counsel for Respondent :- V.K. Goel With

¶3Case :- FIRST APPEAL FROM ORDER No. - 566 of 1999 Appellant :- National Insurace Co. Ltd. Respondent :- Virendra Singh And Another Counsel for Appellant :- A.K. Srivastava Counsel for Respondent :- V.K. Goel With

¶4Case :- FIRST APPEAL FROM ORDER No. - 604 of 1999 Appellant :- National Insurance Co.Ltd. Respondent :- Satpal And Another Counsel for Appellant :- A.K.Srivastava Counsel for Respondent :- V.K. Goel

¶5Case :- FIRST APPEAL FROM ORDER No. - 1258 of 1999 Appellant :- National Insurance Co.Ltd. Respondent :- Kamruddin And Another Counsel for Appellant :- A.K. Srivastava,Kuldip Shanker Amist Hon'ble Saral Srivastava,J.

¶1Heard learned counsel for the appellants.

¶2Since, these five appeals arise out of same accident and involve common issues, therefore, these appeals are being decided together with this common judgement.

¶3The aforesaid five appeals have been preferred by the appellant-insurance company against the awards dated

20.08.1999, 16.03.1999, 05.03.1999, 08.04.1999 &

20.08.1999 passed by the Motor Accident Claims Tribunal, Meerut (hereinafter referred to as 'Tribunal') in MAC Nos.476 of 1993, 475 of 1993, 499 of 1993 & 408 of 1993 & 477 of 1993 respectively.

¶4For the sake of convenience, the facts are being delineated from F.A.F.O. No.1171 of 1999.

¶5Challenging the award, learned counsel for the appellant has contended that the offending vehicle was a goods carrying vehicle and the deceased was a gratuitous passenger, therefore, the deceased was not covered under insurance policy and hence, the tribunal has erred in law in fixing the liability upon the insurance company to pay the compensation.

¶6Be that as it may, the tribunal has framed the following issues:- "अभभिवचनोሪ कके आधधार पर भनम्न वधाद भबिन्दद बिनधायके गयके।

¶1क्यधा यधाचची कको चकोटट भदनधााሪक 21.7.93 कको समय करचीबि रधात कके 10 बिजके गधाम मलकपपुर कके पधास बिहद थधानधा बिड़ቭत जजलधा मकेरठ मट टटक साሪ० एच०आर०पची०-8598 कको उसकके चधालक दधारधा उसके तकेजची मट लधापरवधाहची सके चलधायके जधानके कके कधारण हहई और दपुररटनधा मट यधाचची कको चकोटट आई। और उक टटक कधा मधाजलक भवपकची साሪ० 1 हहै और उक टटक भवपकची साሪ० 2 कके यहधााሪ बिचीभमत थधा।?

¶2क्यधा यधाचची ककोई ्ቚभतकर पधानके कधा अजधकधारची नहीሻ हहै। जहैसधा भक भवपकची साሪ० एक कके जवधाबि दधावके ककी धधारधा 31 मट कहधा हहै?

¶3क्यधा भवपकची साሪ० 2 ककी ककोई ्ቚभतकर अदधा करनके ककी जजम्मकेदधारची नहीሻ हहै जहैसधा भक जवधाबि दधावके कके पहैरधा 36 व 36 मट कहधा गयधा हहै?

¶4क्यधा यधाचची भकसची ्ቚभतकर कके पधानके कधा अजधकधारची हहै, यभद हधााሪ तको भकतनधा व भकससके?

¶7In deciding the issues No.2 and 3, the tribunal has recorded the following issues:-- "वधाद भबिन्दपु साሪ० 2 व 3 इन दकोनोሪ वधाद भबिन्दपुओाሪ पर उभियपकोሪ ककी ओर सके ककोई आगह नहीሻ भकयधा गयधा। अततः वधाद भबिन्दपु तदधानपुसधार यधाचची कके पक मट भनणरत भकयके जधातके हह।"

¶8Since, the issues No.2 and 3 were not pressed by the insurance company before the tribunal, therefore, the contention advanced before this this Court cannot be raised in appeal till the finding returned by the tribunal on issues No.2 and 3 extracted above, is assailed on the ground that the issues No.2 and 3 were pressed and the tribunal did not consider the argument advanced by the counsel of the company. There is no certificate filed on record issued by the counsel of the insurance company certifying that he had pressed the issues No.2 and 3 but the tribunal did not record any finding, nor any averment in this regard has been made by the company in the affidavit. In such view of the fact, the finding of the tribunal on issues No.2 and 3 are binding upon the insurance company and cannot be assailed by it on any ground.

¶9The judgement in other claim petitions arising out of same accident reveals that the insurance company has raised plea of breach of insurance policy on the ground that the deceased was travelling on a goods carrying vehicle and no premium covering risk of passengers on the goods carrying vehicle had been paid, therefore, the deceased was not covered under the insurance policy.

¶10This Court may note that the appellant insurance company cannot take inconsistent inasmuch as in one case, the insurance company did not press the point of breach of insurance policy and in other cases, it pressed the issue of breach of insurance policy. This conduct of the insurance company is not appreciated.

¶11Even otherwise, the finding returned by the tribunal on issue of breach of insurance policy is based upon appreciation of facts and evidence on record. It is pertinent to note that the insurance company in order to avoid the liability on the ground of breach of insurance policy has to establish that the owner had committed breach of insurance policy deliberately, besides proving that there was breach of insurance policy. In the instant case, the insurance company did not set up any plea that the breach of insurance policy committed by the owner was deliberate. For this reason also, the insurance company cannot escape from its liability to pay compensation.

¶12For the reasons given above, all the appeal lack merit and are dismissed. Order Date :- 3.11.2023 SS High Court of Judicature at Allahabad