IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.444 of 2002 UMESH CHANDRA SINGH, S/O Sri Sukhdeo Singh, resident of village Karsaut, P.S. & P.S. Daraunda At present residing at Makdum Sarai Prem Jhil, North Siwan, District Siwan. ………….Opposite Party. Versus 1. SMT.SHAMIMA KHATOON, wife of Late Badrul Hassan, 2. Md. Manohar @ Afzal Son of Late Badrul Hassan, 3. Rubi, D/O Late Badrul Hassan, All are resident of Village Chehora Khurd, P.O. Bakshwa Via Mahuwa, P.S. Goraul, District- Vaishali. ………Respondents/ Claimants. 4. Acharya Mishra Son of Brij Raj Mishra, resident of village Chattarpatti, P.S. Kuchaikot, District- Gopalganj. (Driver of the vehicle)………..Opposite Party. 5. The National Insurance Company, Reg. Office-3, Middletion Street, Calcutta 700071, through the Branch Office, Babunia Road, Siwan. (Insurer of the Vehicle)……Opposite Party. ----------- For the Respondents: - Mr. Rajendra Kishore Prasad, Advocate. Mr. Manojeshwar Prasad Singh, Advicate. Mr. Rohit Kishore Prasad, Advocate. For the Appellant:- Mr. Anil Kumar Singh, Advocate. Mr. Surinder Kumar, Advocate. For the Respondent No.5:- National Insurance Co. Ltd. Mr. Shailendra Kumar, Advocate. 17 18.11.2010 Heard counsel for the parties. This miscellaneous appeal is directed against ex-parte Judgment and award, dated 12.1.1994 and 25.1.1994 respectively passed by the Ist Additional District Judge, Siwan, in claim Case No. 66 of 1982, by which an ex-parte Judgment and award has been passed against the appellant/owner and has been directed to pay Rs. 90,320/- as compensation amount with 6% per annum interest from the date of filing of the claim case. From perusal of the record, it appears that the deceased Badarul Hassan while going on Jeep bearing registration 2 no. BHI 4226 met with an accident by the bus bearing no. BHE 999 got injured and succumb to injury that the claimant filed a claim before the Claim Tribunal for the death of said Badarul Hassan. The Claims Tribunal compensation granted to the tune of Rs.90, 320/- as compensation amount with 6% interest per annum to be paid by the owner. The owner is the appellant. The learned counsel for the appellant submits that the and only grievance of the owner is that the bus was insured with National Insurance Company Limited with third party. The owner appeared in the case and filed petition that the bus was insured with the Insurance Company who is unable to pay. In spite of that tribunal exonerated the Insurance Company and ordered the compensation to be paid by the owner. Hence owner has challenge the order only to the extent that since the vehicle was insured, it is the insurer liability to pay the third party liability and has annexed the copy of the Insurance Policy which is annexed annexure 1 to the memo of appeal. However the Insurance Company appeared but has not challenged the annexure 1. However insurer has asserted that he has got the memo of appeal, but have not challenged that the said vehicle, the bus was not insured. However learned counsel for the insurance company has asserted that the accident took place in the year 1992 and hence according to the Motor Vehicle Act 1939 his liability is limited up to Rs. 50,000/- as no enhance amount is paid to extra liability and has placed his reliance upon decision reported in 3 2002(2)SCC-278 and assert that his liability is limited to the extent of Rs. 50,000/- and any liability beyond Rs. 50,000/- shall with the owner and further that the insurance company has been exonerated by the tribunal and the said order exonerating the Insurance company has not been challenged by the owner. It has further been contended that the appeal also filed after expiry of the limitation in filing appeal. However the owner has filed the miscellaneous appeal with limitation petition for condoning the delay in filing the appeal against the impugned order on the ground that impugned order was challenged under Order IX Rule 13 and was pursuing the matter on the wrong advice of the Advocate by filing petition under Order IX Rule 13 which was numbered as Misc. Case No. 8 of 1994, however the case was dismissed by order dated 30.7.2002 and thereafter the certified copy of the order was taken and then appeal filed and hence was pursuing the matter on wrong advice of advocate. However no counter affidavit has been filed on behalf of the respondents to the averments made in the limitation petition for condoning the delay for filing the appeal. Hence having regard to the facts and circumstance since the appellant was pursuing this remedy and hence has made out a case for the condoning the delay in filing the appeal, hence the dealy in filing the appeal is hereby condoned. The further point raised by the learned counsel for the Insurance Company that since the order exonerating him has not challenged, however the order exonerating as the Insurance 4 Company may be challenged in appeal. However coming to the question of substantial Justice that owner has filed this appeal and has asserted that the vehicle was insured with National Insurance Company and has annexed, the policy of vehicle which has not been challenged as the vehicle was insured on the relevant date as the accident took place in March, 1982 and the said vehicle was ensured from 31st December, 1981 to 30th December, 1982 and hence the policy covered for the period when accident took place and it was comprehensive policy which included the coverage of 3rd party risk and there is no denial. However, since the policy annexed as annexure 1 in memo of appeal having not been controverted by the Insurance Company. Hence, the vehicle was ensured comprehensively covering the risk of the owner with regard to the accident to the 3rd party and hence insurance company is liable to pay. However the Motor Vehicles Act 1939 limits the insurer liability to the extent of Rs. 50,000/- by way of compensation and even the decision referred upon by the learned counsel for the Insurance Company, reported in AIR 2002 SC-278 also it has been held that liability of the insurer in respect of 3rd party insurance is to the extend of Rs. 50,000/-. However the compensation granted by tribunal is to the extent of Rs. 90, 320/- has not been challenged. Hence having regard to the fact it is hereby ordered that compensation assessed as Rs. 90,320/- decided by Tribunal out of which Rs. 50,000/- is ordered to be paid by the National 5 Insurance Company with interest at the rate of 6% per annum from the date of petition to the date of realization of the amount and rest amount shall be paid by the owner with interest t the rate of 6% per annum. Parties are directed to pay the amount with two months failing which the claims shall be entitled to. Accordingly case is disposed of. Bhardwaj ( Gopal Prasad, J.)