Amarjeet Singh vs New India Assurance Company Ltd. And Others

Puneet Gupta, J

In the claim petition filed by the respondent No.3 herein the award came to be passed by the learned Motor Accidents Claims Tribunal, Jammu vide dated 28.10.2004. The Tribunal awarded amount of Rs.61,935/- with interest @ 9% and the respondent No.1-Insurance Company was directed to pay the award amount and was also held entitled to recover the same from the petitioner herein on the ground that the petitioner was not possessing the valid and effective driving license. It may be mentioned herein that the petitioner was the owner and driver of the offending vehicle at the time of accident. The appeal for enhancement of compensation was filed by the claimant. This court vide order dated 20.11.2008 modified the award of the Tribunal and awarded amount of Rs.85,935/- along with interest as granted by the Tribunal. The court also directed the Insurance Company to deposit the amount in the court within the period of four weeks. It appears from the judgment passed by this court that the petitioner herein had appeared before the court and the court after hearing the arguments of the parties passed the judgment. The execution petition was filed by the Insurance Company for recovery of the amount which was paid to the claimant in the claim petition. The petitioner herein had also filed an application for setting aside the award which was dismissed by the Tribunal vide order dated 16.03.2011.

The learned counsel for the petitioner herein has submitted that the liability of the petitioner to pay the award amount to the Insurance Company as per the award does not remain anymore on account of the judgment passed by this court. This Court while enhancing the award amount directed the Insurance Company to deposit the amount within the specified period and there was no direction for the Insurance Company to recover the award amount from the petitioner herein. The precise submission is that the award of the Tribunal having merged into the judgment passed by this court, therefore, the liability of the petitioner to satisfy the award stands wiped out.

The learned counsel for the Insurance Company has argued that the submission of the petitioner is without any basis. The appeal was filed by the claimant only for enhancement of the award and the court while enhancing the compensation had no occasion to deal with the aspect of the liability of the owner to reimburse the awarded amount to the Insurance Company after the same is paid by the Company to the claimant. The doctrine of merger will not apply in the case in hand. The petition is only filed with a purpose to defeat the liability which has been fastened upon the petitioner qua the compensation amount. It is also submitted that the present petition is not maintainable. The respondent-Insurance Company has also filed the objections to the petition in hand.

The main issue which requires determination is the effect of the judgment qua the petitioner herein passed by this court in the appeal filed by the claimant for enhancement of compensation. The directions passed by this court whereby the Insurance Company has been directed to deposit the enhanced award in the court if makes the petitioner not liable to pay the amount to the Insurance Company after the same is paid by the Company to the claimant. The court is not in agreement with the contention of the learned counsel for the petitioner herein that the doctrine of merger will absolve the petitioner to pay the awarded amount to the Insurance Company once the same is paid by the Company to the claimant in view of the judgment of this court. There is no denying of the fact that the appeal was filed against the award by the claimant only with a purpose to claim enhancement in the compensation amount and nothing more. This court while enhancing the compensation directed the Insurance Company to deposit the amount within the period as specified in the order. The petitioner herein cannot take any leverage of the directions passed by this court in the appeal filed against the award. There was no occasion for this court to deal with the aspect of pay and recover as directed by the Tribunal and the appeal was only confined to the issue as to whether the award amount is required to be enhanced in the appeal nor the appellate court dealt with this issue while passing the judgment. The reliance placed by the learned counsel for the petitioner on the judgment reported in AIR 1987 SC 1304 (Kewal Ram v. Smt. Ram Lubhai) is misplaced and is not applicable in the facts and circumstances of the present case. The observation of the Hon’ble Apex Court is in the light of the facts of that case. As stated above, this Court had not entered into the aspect of the liability of the respondents to pay the compensation as held by the Tribunal and was only concerned with the issue as if any compensation amount can be enhanced in favour of the appellant-claimant. The petitioner herein being the party to the appeal proceedings could have raised the issue of his being not liable to pay the compensation but has not taken any such plea in the proceedings which is clearly discernable from the judgment passed by this court in appeal. The Tribunal has taken into consideration all aspects of the matter while passing the impugned order. The Tribunal has also dealt with the issue of ex-parte award passed against the petitioner herein by the Tribunal and the consequences of the same in the light of the judgment passed by this Court while deciding the application of the petitioner herein for setting aside the award passed against him. The petition in hand is only a ploy to defeat the liability fastened upon the petitioner by the Tribunal. The Court does not find any fault in the order impugned, passed by the Tribunal. The present petition does not call for any interference from this Court qua the order impugned.

In view of the discussion made above, the present petition is without any merit and is, accordingly, dismissed.