Dilip Gupta, J. - (1.) MOTOR Accident Claim Petition No. 121 of 2007 was filed by the Petitioner with four others with the allegation that compensation be paid as Majeed had died in an accident on 2nd May, 2007. The award was made by the Motor Accidents Claim Tribunal on 23rd September, 2008 by which the claimants were held entitled to Rs. 1,39,500/ - with interest. The Insurance Company was directed to deposit the said amount within one month but it was also directed that the Insurance Company shall be entitled to recover the amount from the owner of the vehicle but the claimants can withdraw the amount only when the Insurance Company recovers the amount from the owner of the vehicle.
(2.) THIS petition has been filed for quashing this portion of the award dated 23rd September, 2008 which directs that the Petitioner can withdraw the amount only when the owner of the vehicle makes the payment of the amount to the Insurance Company. It is the contention of the learned Counsel for the Petitioner that such a condition will work to the great prejudice to the Petitioner inasmuch as it is not certain when the owner of the vehicle will make payment of the amount to the Insurance Company. It is, therefore, his submission that the Petitioner should be permitted to withdraw the amount in terms of the decision of the Supreme Court in Oriental Insurance Co. Ltd. v. Nanjappan : AIR 2004 SC 1630 which was subsequently followed by the Supreme Court in National Insurance Co. Ltd. v. Kusum Rai and Ors. : (2006) 4 SCC 250.
(3.) ON 22nd May, 2009 while entertaining the petition, the Court issued notices to Respondent Nos. 2 and 3 namely the National Insurance Company and the owner of the vehicle respectively. Steps were taken by the Petitioner for service of notice upon Respondent Nos. 2 and 3 by registered post. The office reported that neither the undelivered cover nor the acknowledgments were returned back after service. On 10th March, 2011, the Court directed the Petitioner to serve the National Insurance Company personally and file an affidavit of service by the next date of listing. An affidavit of service has been filed which states that the notices were served on the National Insurance Company on 4th April, 2011. However, no counsel has appeared for Respondent Nos. 2 and 3. The Court has, therefore, proceeded to hear the matter.;