Bajaj Allianze General Insurance Co. Ltd vs Letticia Hansda And Ors

I. A. No.303 of 2018

I. A. No.303 of 2018 has been filed for condonation of delay of 371 days. The reason has been assigned in paragraph-3 to 6 of the Interlocutory

Application.

Since no serious opposition has been made by learned counsel for the respondents against the Interlocutory Application, for condonation of delay as

same is allowed by condoning delay.

Heard, learned counsel for the appellant, Mr. S. J. Roy, Advocate.

Bajaj Allianze General Insurance Company Limited is appellant before this Court.

This Miscellaneous Appeal has preferred by the appellant against the award dated 04.10.2016 in Motor Accident Claim Case No.59 of 2009 passed

by learned District & Additional Sessions Judge-I-cum-M.A.C.T. No.1, Dumka whereby the claimants namely 1. Letticia Hansda, 2. Bina Besra, 3.

Merry Gold Besra, 4. Sandip Besra, 5. Anup Besra, 6. Anuj Besra, 7. Nil Kamal Besra and 8. Goldi Pulak Besra have been awarded compensation to

the tune of Rs.12,77,340/- (as Rs.50,000/- has already been paid under Section 140 of the Motor Vehicle Act) along with interest @ 9% from the date

of filing of the application till realization of awarded amount.

Learned counsel for the appellant, Bajaj Allianze General Insurance Company Limited has submitted that earlier notice has been issued to the parties.

It has been submitted by the process server, that respondent no.9 owner of the Sumo Victa bearing Registration No. BR-1AP-5240 insured by the

Oriental Insurance Company Ltd. died during pendency of the appeal and to substitute the same I. A. No.4726 of 2019 has been preferred, as such,

this Court may issue notice. This Court has made query from learned counsel for the appellant that what is the merit of the appeal, as such, the Court

is inclined the here on merit before issuance of notice as the same may delay the claimants of fruits of the award.

Learned counsel for the appellant, Bajaj Allianze General Insurance Company Limited has assailed the impugned award on the ground that Tribunal

has wrongly fastened Bajaj Allianze General Insurance Co. Ltd. insurer of the TATA Safari vehicle bearing Chassis No.13614. The said vehicle was

hit by Sumo Victa vehicle bearing Registration No. BR-1AP-5240, as such, the appellant, Bajaj Allianze General Insurance Co. Ltd. may be absolved

from liability and the entire liability may be shifted upon the Oriental Insurance Company Ltd. or owner of Sumo Victa BR-1AP-5240.

Learned counsel for the appellant has further submitted that the Oriental Insurance Company Ltd. has already satisfied the 50% of the award imposed

upon them, as such, other 50% which has been wrongly fastened upon Bajaj Allianze General Insurance Co. Ltd. may also be shifted upon the

Oriental Insurance Company Ltd. as the said vehicle has hit the vehicle insured by the Bajaj Allianze General Insurance Co. Ltd. that is Tata Safari

vehicle bearing Chassis No.13614.

Learned counsel for the Oriental Insurance Company Ltd., Mr. Prashant Vidhyarthi has submitted that issue has already been decided under issue

no.4(a) and the finding has been recorded in paragraph-12 of the impugned award, which does not require any interference by this Court as the

Tribunal has rightly considered all the facts on the basis of the documentary evidence as well as oral evidence and also written note of argument of

the respondents. That both O.P. no.3, the Oriental Insurance Company Ltd. and O.P. no.5, Bajaj Allianze General Insurance Co. Ltd. are liable to pay

compensation amount to the claimants in the ratio of 50% each because both vehicle were involved in the accident. The deceased was travelling at

the material time of accident in the vehicle insured vide Policy No. OG-089-2416-1801-00002068 valid for the period from 19.10.2007 to 18.10.2008

and another offending vehicle TATA Sumo Victa BR-1AP-5240 was insured vide Policy No.8972 valid for the period from 30.12.2006 to 29.12.2007.

Claimants witnesses have fully supported the claim of the claimants and the opposite parties have not given any rebuttal to the contention of the

claimants, as such, there is no materials on record to suggest that the finding recorded by the learned Tribunal is perverse and bad in law rather no

material was produced by the appellant, Bajaj Allianze General Insurance Company Limited Insurance Company to assail the impugned award by

shifting the liability from Bajaj Allianze General Insurance Co. Ltd. to the Oriental Insurance Company Ltd., as such, the finding recorded by learned

Tribunal giving liability to both the Insurance Company to the tune of 50% each requires no interference by this Court.

Learned counsel for the claimants, Mr. Sudhir Sahay assisted by Mr. Mitul Kumar has submitted that claimants have not been paid the fruits of the

claim amount and now if the notice is issued to the substituted heirs of the deceased of the owner of BR-1AP-5240 Sumo Victa the same will delay

the proceeding and debar the claimants from fruits of the award, as such, when this Court is satisfied that no interference is required, the substitution

petition may not be allowed at this stage and the appeal may be disposed of on merit.

Heard, learned counsel for the appellant, Mr. S. J. Roy, learned counsel for the Oriental Insurance Company Ltd., Mr. Prashant Vidhyarthi and

learned counsel for the claimants, Mr. Sudhir Sahay. The issue involved in this case is with regard to the contributory negligence. The issue has been

decided at paragraph-12 of the impugned order. While deciding issue no.4(a). the learned Tribunal has rightly decided the issue no.4(a) by holding both

the Insurance Company before whom both the vehicle i.e. TATA Safari and TATA Sumo Victa BR-1AP-5240 were duly insured on the date of

alleged accident. Since there is no evidence brought on record to shift the liability from the TATA Safari vehicle to TATA Sumo Victa, this Court is

not inclined to interfere with the same.

Accordingly, the appeal is hereby dismissed. As such the I. A. No.4726 of 2019 is closed.