Himachal Pradesh High Court
The New India Assurance Company Ltd vs Pardeep Kumar & Ors on 26 November, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 906 of 2009 Date of decision: 26.11.2019 The New India Assurance company Ltd. ...Petitioner .
Versus
Pardeep Kumar & Ors. ...Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 For the Petitioner : Mr. B.M. Chauhan, Senior Advocate with Mr. Amit Himalvi, Advocate.
For the Respondent No.1 :
r Mr. Rajinder Sharma, Advocate.
For the respondent No.2 : Mr. Nand Lal Chauhan, Advocate.
For the respondent No.3 : None.
Vivek Singh Thakur J. (Oral).
This petition has been preferred by petitionerInsurance Company against award dated 20.9.2008 passed by Motor Accident Claims Tribunal, FAST Track Court, Solan, District Solan, H.P., in MAC Petition No. 48FTC/2 of 2007, titled as Pradeep Kumar v. Gian Chand & Ors., assailing the quantum of compensation awarded by the MACT.
2. Respondent No.3 was served for 27.10.2011 and thereafter actual date intimation was also issued to him for 22 nd April, 2013, but till date there is no representation on his behalf, hence he is proceeded against exparte.
1Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 29/11/2019 20:23:33 :::HCHP 2 CWP No.906 of 2009.
3. Learned counsel representing respondent No.1 has submitted that present petition is squarely covered by the judgment dated 28.3.2016, passed by a Coordinate Bench of this Court in CWP No. .
5023 of 2009, titled as Oriental Insurance Company Ltd. vs. Sh. Pappu & others, and other connected petitions.
4. In response thereto, learned arguing Counsel for the petitioner, referring a judgment of a Division Bench of this Court passed in CWP No.541 of 2005, titled as New India Insurance Company vs. Prem Chand & Ors., Latest HLJ 2007 (HP) 1046, wherein contrary view has been taken, has submitted this pronouncement of the Division Bench has not been considered by the learned Single Judge in CWP No.5023 of 2009 and thus judgment passed by learned Single Judge is per incuriam and deserves to be ignored and present petition is to be decided on the basis of ratio of law laid down by the Division Bench.
5. Learned counsel for respondent No.1 submits that judgment passed by learned Single Judge is based upon the pronouncement of the Apex Court in case titled United India Insurance Company Limited versus Shila Datta and others, (2011) 10 SCC 509 and, therefore, the judgment passed by the Division Bench will not have any impact on the judgment of learned Single Judge referred supra.
::: Downloaded on - 29/11/2019 20:23:33 :::HCHP 3 CWP No.906 of 2009.6. Learned counsel for petitioner submits that in the pronouncement of the Hon'ble Apex Court in Shila Datta's case supra while right of Insurance Company, subject to certain conditions, to .
contest the claim petition before the MACT has been explained and it is held that in that situation Insurance Company will have right to contest the claim petition on all grounds and consequently will also have right to file an appeal on those grounds, whereas at the time of filing present petition, the Insurance Company was not allowed to raise defence and consequently for not raising all those grounds in appeal for assailing impugned award for want of right at that time and, therefore, in such a situation, the petitionerInsurance Company was constrained to file present Writ Petition for want of availability of appropriate efficacious remedy.
7. Record of the MACT reveals that the accident had taken place on 31st August, 2005. The claimant in present case had preferred claim petition under Section 166 of Motor Vehicles Act (M.V.Act for short) on 3.11.2007, which was allowed by the MACT on 20.9.2008. The award passed by the MACT was assailed by the present petitioner i.e. Insurance Company by filing this Writ Petition on 18.3.2009 on the ground that the award passed by the MACT, is perverse being contrary to the evidence, with respect to the quantum of compensation, awarded in ::: Downloaded on - 29/11/2019 20:23:33 :::HCHP 4 CWP No.906 of 2009. favour of the claimants and thus petition was preferred, for the reasons that at that time, as per settled law prevailing at that time, Insurance company was not considered to have right to assail the award passed by .
the MACT on quantum of compensation. However, lateron the Apex Court, in its pronouncement in Shila Datta's case referred supra has clarified the right of Insurance Company and on the basis of which Coordinate Bench of this Court, in CWP No.5023 of 2009 referred supra, has disposed of the Writ Petition filed by the Insurance Company with liberty reserved to Insurance Company to challenge the award in appeal under Section 173 of M.V.Act.
8. It is true that jurisdiction of this Court under Article 226 is not circumvented by any provisions of law and in appropriate case, for circumstances therein, power of this Court is not inhibited by alternative remedy of appeal or any other remedy, but by adopting Doctrine of restraint, the High Courts, in normal circumstances, avoid to entertain petitions in such cases.
9. In present case petitioner is insisting to decide the issue on merit in the petition whereas respondent No.1/claimant is insisting to direct the petitioner to file appeal.
10. Without going into merit of controversy and submission of learned counsel, this Writ Petition is also disposed of with liberty ::: Downloaded on - 29/11/2019 20:23:33 :::HCHP 5 CWP No.906 of 2009. reserved to the petitioner Insurance Company to assail the award in an appeal under Section 173 of the M.V. Act, if advised so, with further observations that such appeal, if so filed, for the purpose of limitation .
period, the period spent in pursuing this Writ Petition before this Court, including time taken for certified copies of judgment and award, shall be excluded and further that petitionerInsurance Company shall also be at liberty to seek adjustment/transfer of the amount, if any deposited during the course of proceedings in this Writ Petition against the amount, if any, required to be deposited by the Insurance Company in appeal.
11. During the pendency of this petition, Dr. Lokender Sharma, who has been examined as witness before the MACT was also summoned by this Court on 4th August, 2009 and on that day he was examined by the Court on oath, by subjecting him to questions put by the Division Bench, and his response to the queries put by the Court was recorded in the form of evidence. The parties shall be at liberty to refer the said examination/statement in the appeal, in accordance with law.
12. Petition stands disposed of, in the aforesaid terms, so also the pending application(s), if any.
(Vivek Singh Thakur), 26 November, 2019 th Judge.
(vinod) ::: Downloaded on - 29/11/2019 20:23:33 :::HCHP