Acharya Shri Nanesh Samta Vikas Trust @APPELLANT@Hash I.C.I.C.I. Lombard General Insurance Company Limited

Heard learned counsel for the parties. Perused the material available on record.

 These two writ petitions preferred by the petitioner Acharya Shri Nanesh Samta Vikas Trust involve common question of facts and law and are

thus being decided together by this single order.

Facts in brief are that a bus No.RJ-09-PA-0968, which was engaged in transportation of children of Acharya Nanesh English Medium Primary

School, Data collided with a motorcycle on 23.08.2008 resulting into death of the two persons namely Madhavlal and Smt. Sohni Bai riding thereon.

An FIR No.390/2008 was lodged in relation to the said accident and during investigation thereof, the insurance certificate of the offending bus was

collected as per which, the bus was insured in the name of Acharya Shri Nanesh Samta Vikas Trust i.e. the petitioner herein. Two claim

applications No.269/2009 and 270/2009 came to be filed before the Motor Accident Claims Tribunal impleading the ICICI Lombard Insurance

Company and the petitioner Trust herein as party respondents. Despite service of notice in both the claim applications, appearance was not put in on

behalf of the petitioner Trust and accordingly, the claim applications were decided without contest of the petitioner herein. The bus was found being

plied without a valid permit and accordingly, while accepting the insurance claims, the award dated 09.10.2013 were passed in favour of the claimants

directing the Insurance Company to pay the compensation to the claimants and recover the amount from the insured i.e. the petitioner herein. The

respondent Insurance Company, paid the compensation to the claimants and then, filed two separate execution applications in the Tribunal for

recovering the amount of the award from the petitioner. Notice of execution applications filed by the Insurance Company were issued to the petitioner

who received the same. Appearance was put in on behalf of the petitioner in the execution proceedings almost after one and half years of receiving

the summons but no reply was filed whereupon, the learned Tribunal accepted the execution applications and issued the warrant of recovery under

Rule 174 of the Motor Vehicles Act vide orders (Annexure-4) dated 08.01.2015. Being aggrieved of this warrant of recovery, the petitioner Trust

moved separate applications under Order 47 Rule (1) read with Section 151 CPC in both the matters for recalling the warrants of recovery. These

applications were rejected by the learned Tribunal vide order dated 27.02.2015. Both these orders i.e. (Annexure-4) dated 08.01.2015 and (Annexure-

7) dated 27.02.2015 are assailed in these writ petitions.

After rejection of the application under Order 47 Rule (1) read with Section 151 CPC, the petitioner moved separate applications before the learned

Tribunal for recalling of the exparte awards dated 09.10.2013 and the same were rejected by the learned Tribunal vide a common order (Annexure-

13) dated 02.09.2015Â observing that the petitioner Trust was very much aware of the ex-parte proceedings and did not approach the Tribunal for

setting aside of the ex-parte award within the specified period of limitation. It may be noted here that these orders have not been assailed by the

petitioner till date. Manifestly thus, the award has become final against the present petitioner.

The respondents, with the reply have placed on record, copy of the registration certification and the attending documents which clearly indicate that

the application for registration of the bus in question was presented in the name of Acharya Shri Samta Vikas Trust and not Acharya Shri Nanesh

Shikshan Sansthan. Furthermore, the insurance cover note was also issued in the name of Acharya Shri Nanesh Samta Vikas Trust. Though

ofcourse, the petitioner Trust has tried to portray in the pleadings that the bus in question was purchased by the Education Trust and that requisite

rectification was got done in the registration documents to this effect. However, the date on which, such rectification was effected has not been

specified/ clarified in the writ petitions.

Upon a specific query being made by this Court, Shri Rakesh Arora, learned counsel representing the petitioner Trust, candidly conceded that the

principal trustees of both the Trusts are same. Manifestly thus, the admitted facts available on record can be safely culminated into following

undisputed findings:

(i) that the bus No.RJ-09-PA-0968 was initially registered in thename of Acharya Shri Nanesh Samta Vikas Trust and not in the name of Shri

Acharya Nanesh Shikshan Sansthan. The insurance cover was also applied for and issued in the name of Acharya Shri Nanesh Samta Vikas Trust.

The date on which, the alleged rectification was got done regarding the so-called error in issuance of the registration certificate (Regarding the name

of the owner Trust) has not been clarified by the petitioner.

(ii) that the applications filed by the petitioner for setting aside ofthe ex-parte awards dated 09.10.2013 stand rejected by the Tribunal by separate

orders dated 02.09.2015. Thus, the awards dated 09.10.2013 have attained finality because the same were never challenged.

(iii) that upon receiving summons of the execution proceedings,the petitioner engaged a counsel to represent it but failed to contest the proceedings

and thus, the execution proceedings have attained finality.

Manifestly thus, the right of the respondent Insurance Company to seek execution of the award by enforcing the liability on the petitioner (the insured)

cannot be questioned through these collateral proceedings because, such liability has been concluded by the orders dated 08.01.2015 passed in the

execution proceedings which the petitioner failed to contest despite service of notice.

In view of the discussion made herein above, I find no reason to entertain the challenge laid by the petitioner to the impugned orders (Annexure-4)

dated 08.01.2015 whereby, the recovery warrants were issued against the petitioner and so also the order (Annexure-7) dated 27.02.2015 whereby,

the applications preferred by the petitioner Trust under Order 47 Rule (1) read with Section 151 CPC were dismissed.

Hence, both these writ petitions are devoid of merit and are dismissed as such. Stay applications are also dismissed. No order as to costs.

A copy of this order be placed in each file.