Km. Rinkoo vs Satnam Singh And Another
2017 Latest Caselaw 7818 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 30.11.2017
 
Delivered on 8.12.2017
 

 
Case :- FIRST APPEAL FROM ORDER No.113 of 2002
 

 
Appellant :- Km. Rinkoo
 
Respondent :- Satnam Singh And Another
 
Counsel for Appellant :- Nagendra Kumar Singh
 
Counsel for Respondent :- N K Srivastava
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. Heard Sri Nagendra Kumar Singh for the appellant and Sri N.K. Srivastava for the respondents.

2. This appeal challenges the order dated 31.10.2001 passed by Motor Accident Claims Tribunal, Deoria, in M.A.C.P. No.599 of 1996.

3. I am pained that a girl of 16 years of age, who was before the Tribunal, was awarded a sum of Rs.1 Lac but on an application being made that Insurance company joined should have been New India and not United India. The Tribunal reduced the compensation to Rs.2,000/-. The new incumbent Judge undertook the entire exercise of writing afresh new judgment and reduced the claim to a sum of Rs.2,000/- holding that it was not proved that she had suffered partial disablement and holding that the Insurance company would be liable to pay compensation only from the date it was impleaded.

4. This appeal is filed at the behest of the claimant, who has sued through her legal heir as she was minor at the time of accident.

5. Learned counsel for the claimant has submitted that the claimant had sustained fracture and the amount of Rs.2,000/- could not have been awarded reviewing earlier judgment. The Tribunal could not have reviewed its earlier decision awarding Rs.1,00,000/- with interest. The review was not permissible. Even it is submitted that out of the said accident, one person has died which shows the gravamen and impact of the accident, this Court has perused the paper-book and the record of the lower court and though it is not submitted in this case, earlier the matter was decided in absence of the owner wherein United India Insurance Company was impleaded as party - respondent but with whom there was no brevity of contract of the owner.

6. In view of the decision of UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SCC 948, the accident having taken place is not in dispute. The claimant not being negligent is not in dispute. The claimant was awarded a sum of Rs.1 Lac is the very same claim vide judgment dated 27.4.2000 is also not in dispute but the said award was against the owner as the claimant could not prove that the vehicle was insured. The owner/ claimant thereafter came in review to show that the vehicle was insured but was insured with New India Insurance Company Limited. The Tribunal of its own decided all the issues afresh. The mute question is could the Tribunal review its own judgment Suo Motu on all issues and alter the amount awarded in favour of a destitute poor minor injured claimant, who had suffered the injuries.

7. It is admitted position of fact that the injuries sustained by the minor would cause permanent partial disability, is what is held earlier, and that is why a learned Judge of the Tribunal held in favour of the appellant vide judgment dated 27.4.2000 and awarded a sum of Rs.1 Lac as he had become permanent disabled being a young girl. Her left leg was damaged even after filing of the appeal and the claim petition even in the year 2016 and 2008, the position still continues when she filed application for expeditious hearing.

8. The judgment dated 27.4.2000 was never objected by the claimant or owner or insurance company. An application was given to correct the name of the insurer immediately after the owner was held liable.

9. Section 170 of the Motor Vehicles Act read with Section 166 reads as follows:-

"170. Impleading insurer in certain cases.-- Where in the course of any inquiry, the Claims Tribunal is satisfied that ---

(a) there is collusion between the person making the claim and the person against whom the claim is made, or

(b) the person against whom the claim is made has failed to contest the claim,

it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceedings and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.

166. Application for compensation.-- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(3) ****

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act."

and, therefore, the impleadment of an Insurance company is not a must but under Section 168 (3), which reads as follows:-

"168. Award of the Claims Tribunal.--

(1) ..................................................

(2) ..................................................

(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."

10. In this case, it was the owner, who was the person saddled with the liability to make payment in the Ist judgment. However, he came before the Tribunal showing that his vehicle was insured with New India Insurance Company Limited. The said amount of compensation could not have been altered by the Tribunal. Therefore, the Tribunal has erred in holding that the claimant was entitled to only Rs.2,000/- which is farce-able amount. The Tribunal held that the rate of interest would be from the date of award which is also not permissible. The concept granting interest is as per Section 171 of the Motor Vehicles Act, which reads as follows:-

"171. Award of interest where any claim is allowed.-- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."

and, therefore, the Tribunal has committed an error in granting interest only from the date the Insurance company was impleaded. The interest was already ordered to be paid from the date of claim petition by order dated 27.4.2000, therefore, non-grant of interest is perverse. The Insurance company has to be saddled with entire liability to indemnify the claimant if it feels that there is some dispute between the Insurance company and the owner. Non-joining of Insurance company is not fatal for grant of interest.

11. The Tribunal in this case has not exercised its judicial discretion. In this case, there was no delay on the part of the appellant as it was informed that United India was the Insurance company and this information was given by the owner of the vehicle. If it was wrongly given, the claimant cannot be made to suffer. The first point of time when they came to know that it was New India Insurance Company Limited, an application was immediately moved so as to implead it as a party - respondent.

12. The owner of the Truck never appeared before the Tribunal and as the motorcyclist was not held to be at all negligent, the burden shifted on the owner of the Truck. The said decision was rendered on 27.4.2000 by Sri N.B. Singh, IInd Addl. District Judge, Deoria, who in paragraph no.13 held as follows:-

"Km. Rinku was 17 years of age at the time of accident. She had received grievous injuries whose descriptions have already been mentioned in the body of this judgment earlier and it has also been stated that she should obtain quite a handsome amount of compensation as her leg and hand both were fractured. The amount of compensation has been claimed which is excessive. According to the provisions mentioned in Schedule-II of the M.V. Act, she is entitled for Rs.15,000/- towards medical expenses, Rs.5,000/- for injuries sustained by her but for loss of her future life she is awarded Rs.80,000/- (eighty thousand) so that she may spend her life easily in future. Thus, the total amount of compensation which she can claim shall be Rs.1,00,000/- (one lakh) payable by Opp.party no.1. Over this amount she can claim interest at the rate of 12% per annum with effect from the date of presentation of claim petition i.e. 20.12.1996 till the entire sum is paid."

13. The applicant and also owner gave an application immediately after she came to know the name of New India Insurance Company. All that the Tribunal had to do was mulcted the liability on the Insurance company instead it started denovo proceeding. The respondent herein - Satnam Singh, owner of the Truck also appeared and gave this factual data and, therefore, there was no point for re-deciding other issues except issue no.2, which reads as under:-

"Issue No.2: Insurance company has alleged in this issue that the driver of the truck had no valid driving licence at the time of accident. The case has proceeded ex-parte against opposite party no.1 who is owner of the Truck. Neither owner of the Truck nor its driver had appeared before this court to say that the driver had valid licence at the time of driving of the truck. Therefore, I decide this issue in favour of Insurance company."

There is no need to rely on Madhya Pradesh High Court (Gwalior Bench) judgment in ICICI Lumbard General Insurance Company Vs. Shanti; Babli; Chunni; Ramwati; Madho Singh and others, 2015 LawSuit (MP) 208, even without considering these decisions as cited by counsel for appellant, this appeal on the factual matrix is to be allowed.

14. The appeal is allowed. The order dated 27.4.2000 awarding compensation will enure for the benefit of the appellant - claimant. She is awarded a sum of Rs.1 Lac with 9% rate of interest from the date of filing of claim petition till the amount is deposited.

Order Date :- 8.12.2017

Irshad