HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No.136 of 2008 Date: 01-07-2011 Between: The National Insurance co. Ltd ….. Appellant and Syed Noor and others ….. Respondents HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No.136 of 2008 JUDGMENT: This appeal is filed against the order dated 30-12-2005 passed in O.P.No.304 of 2000 on the file of the Motor Accident Claims Tribunal, Nizamabad. The appellant herein is the second respondent in the said O.P. For the sake of convenience, the parties will be referred to as they are arrayed before the Tribunal. 2. The brief facts of the case are that on 09-09-1998 at about 4-30 PM, while the deceased Syed Farooq was proceeding to Bodhan by driving the jeep along with passengers and when the jeep reached canal bridge near Jankampet village on Nizamabad to Bodhan road, a lorry bearing No.APJ 6336, driven by its driver in a rash and negligent manner, dashed against the jeep due to which the deceased Syed Farooq and other passengers in the jeep sustained serious injuries. They were shifted to the hospital at Nizamabad immediately and while undergoing treatment, Syed Farooq died in the hospital. Therefore, the petitioners filed the O.P. claiming compensation of Rs.2,00,000/- under various heads. 3. On behalf of the petitioners, PWs.1 and 2 were examined and Exs.A-1 to A-15 were marked. On behalf of the respondents, none were examined, however Exs.B-1 and B-2 were marked. The Tribunal, after considering the evidence adduced by both sides, allowed the petition in part granting compensation of Rs.1,00,000/- with interest @ 7.5% per annum. Aggrieved by the same, the Insurance Company preferred the present appeal. 4. The learned counsel appearing for the appellant-insurance company mainly urged that the Tribunal failed to see that in view of the orders passed in M.A.C.P.No.74 of 2000 on the file of the Motor Accident Claims Tribunal at Parbhani, the present O.P. is not maintainable for the same cause of action. 5. Now the points for consideration are whether the present O.P. is maintainable and whether the order of the Tribunal, dated 30- 12-2005 is sustainable? 6. The petitioners in the present O.P. are the parents and brothers, and the third respondent is the wife of the deceased Syed Farooq. The petitioners filed the petition claiming compensation of Rs.2,00,000/- for the death of the deceased in a motor accident on 09- 09-1998. The Tribunal, while assessing the evidence of PWs.1 and 2, awarded the compensation of Rs.3,10,000/- out of which an amount of Rs.2,10,000/- was deducted as the same was said to have been received by respondent No.3, wife of the deceased by filing M.A.C.P.No.74 of 2000 before the Lok Nyayalaya in which these petitioners are not parties. 7. It is the main contention of the learned counsel for the appellant-insurance company that earlier the wife of the deceased i.e., the third respondent, filed M.A.C.P.No.74 of 2000 on the file of the Motor Accident Claims Tribunal, Parbhani and the Insurance Company entered into compromise on 24-06-2010 before the Lok Nyayalaya for an amount of Rs.2,10,000/-, in which the present petitioners are not parties, and the award was passed by the Lok Nyayalaya, and therefore, the present O.P. is not maintainable. 8. It is the admitted fact that respondent No.3 is the wife of the deceased Farooq. It is the evidence of PW-1, the father of the deceased, that soon after the death of his son Farooq, the third respondent (wife of the deceased) married another person by name Iqbal and begot the fourth respondent and she never lived with them, and therefore, she is not entitled for any compensation. The third respondent did not dispute the same and no rebuttal evidence was adduced on behalf of the respondents. 9. As seen from the impugned order, the offending vehicle was insured with the National Insurance Company, Nizamabad branch, whom the petitioners have made as second respondent in the present O.P. Respondent Nos.3 and 4, who filed M.A.C.P.No.74 of 2000 before the Motor Accident Claims Tribunal, Parbhani, made the National Insurance Company, Aurangabad branch, as party to the proceedings. It is quite strange to note that the National Insurance Company, Aurangabad branch, without verifying the policy of the offending vehicle, entered into compromise before the Lok Nyayalaya, and has given consent for the award. It is to be noted that before entering into the compromise, the Insurance Company has to ascertain the policy particulars from the issuing branch. As per the Court summons, the National Insurance Company of Nizamabad Branch received those summons on 26-06-2010. It clearly shows that after issuance of the summons to the Nizamabad Branch of National Insurance Company, the Aurangabad branch of National Insurance Company entered into compromise with Respondent Nos.3 and 4 and therefore, the fault lies with the Aurangabad branch of National Insurance Company for entering into compromise with Respondent Nos.3 and 4. For the fault of the Insurance Company, the parties herein should not be penalised. The Tribunal placed reliance on the decision reported in UII CO. LTD v. SHARADA ADYANATHAYA AND OTHERS [1]. 10. I have gone through the aforesaid decision and the principles laid down thereunder. Accordingly, there is no bar for the petitioners for filing the present O.P. claiming compensation on the death of the deceased Farooq. The petitioners have bona fidely added the wife of the deceased as Respondent No.3 while claiming compensation. The Tribunal has rightly appreciated the evidence and correctly assessed the compensation payable to the petitioners and accordingly, awarded Rs.3,10,000/- under all the heads and deducted Rs.2,10,000/- which was agreed to be paid by the National Insurance Company, Aurangabad branch before the Lok Nyayalaya and directed the balance amount of Rs.1,00,000/- to be payable to the petitioner Nos.1 and 2. Therefore, I see no ambiguity or illegality in the order of the Tribunal and the same is sustainable. 11. In the result, the Civil Miscellaneous Appeal is dismissed. No costs. _______________ K.S. APPA RAO, J Date: 01-07-2011 YCR [1] 1998 ACJ 252