Mangal Chand Jain And Others vs R.R.S.P.N. And Others
2017 Latest Caselaw 7877 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 30.11.2017
 
Delivered on 12.12.2017
 

 
Case :- FIRST APPEAL FROM ORDER No.1270 of 1991
 
Appellant :- Mangal Chand Jain And Others
 
Respondent :- R.R.S.P.N. And Others
 
Counsel for Appellant :- Madhav Jain
 
Counsel for Respondent :- S.K. Srivastava, S.C.Srivastava
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. Heard Sri Madhav Jain for the appellant and Sri S.K. Srivastava for the respondent - Insurance company.

2. This appeal is challenged by the destitute parents of the deceased, who died in vehicular accident. The claims Tribunal, who tried Motor Accident Claim Petition No.71 of 1983, dismissed the same on hyper-technical ground holding that the claimants in the claim petition had alleged that the driver of the bus was driving the vehicle rashly and negligently and, therefore, when it was found that the bus was not being driven rashly and negligently but it was the driver of the mini-bus, who drew the bus rashly and negligently. On this count, the claim petition was dismissed.

3. Learned counsel for the appellant Sri Madhhav Jain has assailed the said judgment.

4. The Tribunal dismissed the claim petition. This judgment is assailed on the ground that the Tribunal had no business to review the judgment given in Mangal Chand Jain in M.A.C.P. No.71 of 1983 dated 4.2.1986, which reads as follows:-

"The petition of the claimants under section 110-A of the Motor Vehicles Act, 1939, is allowed ex-parte with ex-parte costs. The opposite parties are directed to pay the compensation money of Rs.1,50,000/- to the claimants."

Which was without mentioning anything taken in review by a subsequent Judge, who, after a period of 5 years, dismissed the claim petition on the ground that the bus was not moving when the Mini-bus, which was driven rashly and negligently, hit it. The driver has clearly deposed that the bus was stopped and he was cleaning the wind-screen when the mini-bus caused the accident. This fact has been supported by Kamal Singh, Conductor of the roadways bus. These two witnesses have also deposed that there was dusty winds blowing. Naturally, their testimony establishes that the bus was stopped on the Kachcha side of the road on left hand and the wind screen was being cleaned. Their testimony further establishes that it was mini-bus, which was driven rashly and negligently and was responsible for the accident. Although, the claimants' side have cross-examined them but their deposition has gone inspiring. In this way, the opposite party no.1 has succeeded to prove that it was the driver of Mini Bus No.RNB 6636, who was rash and negligent. As a result of that, Mukesh received fatal injuries and succumbed later on.

The opposite party no.1 has also filed the photographs of accident vide list 86-C. These found photographs of both the vehicles speak one thing that Rajasthan Roadway Bus No.RRG 8112 was at its left side on the Kachcha Patari of the road, while Mini Bus No.RNB 6636, came on the wrong side and dashed with stationary bus. Therefore, I am convinced that the accident in question occurred due to rash and negligent driving of Mini Bus and not Rajasthan roadways bus. Issues no.1 and 2 are answered accordingly.

5. The learned Judge, who dismissed the claim petition vide a judgment dated 14.2.1991, was not entitled to review the judgment dated 4.2.1986 which was passed against Rajasthan State Road Transport Corporation.

6. While going through the record, this Court finds that the opposite party - Rajasthan State Road Transport Corporation filed its written statement after the judgment and award in the year 1986.

7. Learned Counsel for the appellant has relied on the following decisions:-

(i) Khenyei Vs. New India Assurance Co. Limited and others, 2015 AIR SCW 3169;

(ii) United India Insurance Co. Ltd. Vs. Shila Datta, LAWS (SC) 2011 10 33; and

(iii) MANJU DEVI VS. MUSAFIR PASWAN, 2003 LawSuit (SC) 381.

8. On the other hand, learned counsel for the respondent - Insurance company has relied on the following decisions:-

(i) Dr. Shehla Burney and others Vs. Syed Ali Mossa Raza (Dead) by Lrs. & others, 2011 (3) Supreme 401;

(ii) Sheikh Abdul Kayum and others Vs. Mulla Alibhai and others, AIR 1963 SC 309; and

(iii) Scotts Engineering, Bangalore Vs. Rajesh P. Surana and others, (2008) 4 SCC 256.

9. As far as the appellants are concerned whether it was the driver of Rajasthan State Road Transport Corporation or the driver of Mini bus as the deceased was neither driver of Rajasthan State Road Transport Corporation nor of Mini Bus. It is nobody's case that the deceased has in any way contributed to the accident having taken place. The accident in question was caused by negligence of driver. The concept of strict and absolute liability has been followed by the Indian Courts for motor vehicles accident. The ingredients and actionability has been time and again explained and narrated as enumerated by the High Court of this country and the Apex Court in Kishore Lal Vs. Chairman, ESIC, reported in AIR 2007 SC 1819. The cause of action has been explained. The Apex Court has reiterated what is the right of a person in cases of composite negligence also. The said view is reflected in paragraph nos. 5 to 8 and 11 of Anthony Vs. Karvarnan, (2008) 3 SCC 748, which reads as under:-

"5. A claim petition for compensation in regard to a motor accident (filed by the injured or in case of death, by the dependant family members) before the Motor Accident Claims Tribunal constituted under section 165 of the Act is neither a suit nor an adversarial lis in the traditional sense. It is a proceedings in terms of and regulated by the provisions of Chapter XII of the Act which is a complete Code in itself. We may in this context refer to the following significant aspects in regard to the Tribunals and determination of compensation by Tribunals:

(i) A proceedings for award of compensation in regard to a motor accident before the Tribunal can be initiated either on an application for compensation made by the persons aggrieved (claimants) under section 166(1) or section 163A of the Act or suo moto by the Tribunal, by treating any report of accident (forwarded to the tribunal under section 158(6) of the Act as an application for compensation under section 166 (4) of the Act.

(ii) The rules of pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo moto initiated by the Tribunal.

(iii) In a proceedings initiated suo moto by the tribunal, the owner and driver are the respondents. The insurer is not a respondent, but a notice under section 149(2) of the Act. Where a claim petition is filed by the injured or by the legal representatives of a person dying in a motor accident, the driver and owner have to be impleaded as respondents. The claimants need not inplead the insurer as a party. But they have the choice of impleading the insurer also as a party respondent. When it is not impleaded as a party, the Tribunal is required to issue a notice under section 149(2) of the Act. If the insurer is impleaded as a party, it is issued as a regular notice of the proceedings.

(iv) The words ''receipt of an application for compensation' in section 168 refer not only to an application filed by the claimants claiming compensation but also to a suo motu registration of an application for compensation under section 166(4) of the Act on the basis of a report of an accident under section 158(6) of the Act.

(v) Though the tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. On receipt of an application (either from the applicant or suo motu registration), the Tribunal gives notice to the insurer under section 149(2) of the Act, gives an opportunity of being heard to the parties to the claim petition as also the insurer, holds an inquiry into the claim and makes an award determining the amount of compensation which appears to it to be just. (Vide Section 168 of the Act).

(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to the assist it in holding the enquiry (vide section 169 of the Act).

(vii) The award of the Tribunal should specify the person/s to whom compensation should be paid. It should also specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them. (Vide section 168 of the Act).

(viii) The Tribunal should deliver copies of the award to the parties concerned within 15 days from the date of the award. (Vide section 168 (2) of the Act).

We have referred to the aforesaid provisions to show that an award by the tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.

The decision in NICOLLETTA ROHTAGI

6. In National Insurance Co. Ltd. vs. Nicolletta Rohtagi - 2002 (7) SCC 456, a three Judge Bench of this Court considered the following two questions :

(i) Non-filing of an appeal by the insured amounted to failure to contest the claim and that the right to contest included the right to file an appeal against the award of the Tribunal.

(ii) Where despite the existence of the facts postulated in section 170 of the MV Act, 1988, the Tribunal does not implead the insurance company to contest the claim on grounds available to the insured or the persons against whom claim has been made, or in such a situation rejects the insurer's application for permission to contest the claim on merit or where the claimant has obtained an award by playing fraud, in such cases the insurer has a right of appeal to contest the award on merits.

The three Judge Bench, after referring to the decisions in Shankarrayya vs. United Insurance Co. Ltd. - 1998 (3) SCC 140, Narendra Kumar vs. Yarenissa - 1998 (9) SCC 202, Chinnamma George vs. N. K. Raju - 2000 (4) SCC 130, ad Ritu Devi vs. New Delhi Insurance Co. Ltd. - 2000 (5) SCC 113, held as under :

"It was urged by learned counsel appearing for the insurance company that if an insured has not filed any appeal, it means he has failed to contest the claim and that the right to contest include the right to contest by filing an appeal against the award of the Tribunal as well, and in such a situation an appeal by the insurer questioning the quantum of compensation would be maintainable.

We have earlier noticed that motor vehicle accident claim is a tortious claim directed against tort-feasors who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensated and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy except those specified in Section 149(2) of the Act or where the condition precedent specified in Section 170 is satisfied.

For the aforesaid reasons, an insurer if aggrieved against an award, may file an appeal only on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Claims Tribunal is satisfied that (a) there is a collusion between the person making a claim and the person against whom the claim has been made or (b) the person against whom the claim has been made has failed to contest the claim, the tribunal may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are available to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 is satisfied and award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one Scheme and if we give any different interpretation to Section 172 of the 1988 Act, the same would go contrary to the scheme and object of the Act."

A careful reading of the said decision shows that issues (i) and (ii) raised before us did not arise for consideration in Nicolletta Rohtagi, nor were they considered therein.

Re: Point No.(i) : The position in cases where the claimants implead the insurer as a respondent in the claim petition.

7. The scheme of the Motor Vehicles Act, 1988 as contained in Chapters XI (Insurance of Motor Vehicles against Third Party risks) and XII (Claim Tribunals) proceeds on the basis that an insurer need not be impleaded as a party to the claim proceedings and it should only be issued a statutory notice under section 149(2) of the Act so that it can be made liable to pay the compensation awarded by the tribunal and also resist the claim on any one of the grounds mentioned in clauses (a) and (b) of sub-section (2) of section 149. Sub-sections (1), (2) and (7) of section 149 clearly refer to the insurer being merely a noticee and not a party. Similarly, sections 158(6), 166(4), 168(1) and 170 clearly provide for and contemplate insurer being merely a noticee for the purposes mentioned in the Act and not being a party respondent. Section 170 specifically refers to impleading of insurer as a party to the claim proceedings.

8. When an insurer is impleaded as a party - respondent to the claim petition, as contrasted from merely being a noticee under section 149(2) of the Act, its rights are significantly different. If the insurer is only a noticee, it can only raise such of those grounds as are permissible in law under section 149(2). But if he is a party-respondent, it can raise, not only those grounds which are available under section 149(2), but also all other grounds that are available to a person against whom a claim is made. It therefore follows that if a claimant impleads the insurer as a party-respondent, for whatever reason, then as such respondent, the insurer will be entitled to urge all contentions and grounds which may be available to it.

11. Therefore, where the insurer is a party- respondent, either on account of being impleaded as a party by the tribunal under section 170 or being impleaded as a party-respondent by the claimants in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under section 149(2) of the Act. The claim petition is maintainable against the owner and driver without impleading the insurer as a party. When a statutory notice is issued under section 149(2) by the tribunal, it is clear that such notice is issued not to implead the insurer as a party-respondent but merely to put it on notice that a claim has been made in regard to a policy issued by it and that it will have to bear the liability as and when an award is made in regard to such claim. Therefore, it cannot, as of right, require that it should be impleaded as a party-respondent. But it can however be made a party-respondent either by the claimants voluntarily in the claim petition or by the direction of the Tribunal under section 170 of the Act. Whatever be the reason or ground for the insurer being impleaded as a party, once it is a party-respondent, it can raise all contentions that are available to resist the claim.

Re : Point (ii) : Maintainability of a joint appeal by the owner of the vehicle (Insured) and Insurer."

10. In that view of the matter, the principle of strict liability has been evolved by the Apex Court time and again. The decisions cited by the learned counsel for the appellant mainly in Khenyei (supra) are fully applicable. The respondents have relied on 3 decisions which is in realm of Civil Procedure which cannot be strictly applied to proceeding under Motor Vehicles Act, 1988. The principles are well narrated in paragraph nos. 13 and 18 of Khenyei (supra) and, therefore, even if there is no impleadment of other tortfeasor, the claim could not have been dismissed. The said judgment would apply in full force to the facts of this case. The decision in United India Insurance Company Limited Vs. Shila Datta (supra) also reiterated and takes a similar view. The Insurer would be liable to indemnify the non-tortfeasor and, therefore, the claim petition was maintainable and it could not have been dismissed. Paragraph no.5 of the said judgment gives answer to aforesaid 3 judgments cited by the respondents and they would not apply to the facts before me.

11. In that view of the matter, the claim petition was maintainable and the decree should have been passed. The learned Judge should not have reheard and decided the matter, as if he is hearing the matter for the first time, the Tribunal did not even mention the outcome in the earlier decision which was not under review.

12. This takes this Court to the issue of compensation and should this Court restore the judgment dated 4.2.1986 allowing a sum of Rs.1,50,000/- with interest. The Tribunal had no power of reviewing the entire judgment. It was not before it that the compensation awarded was either on the lower side or higher side. All that the Tribunal was expected, was to pass an order in favour of the claimant qua the insured and indemnifying of the insured by the Insurer as per the provisions of Motor Vehicles Act. The record is before this Court. Recently, the Apex Court in the case of Bithika Mazumdar and another Vs. Sagar Pal and others, (2017) 2 SCC 748, has held that for doing complete justice the exercise can be undertaken if this Court can decide the amount. In this case, Tribunal had already decided the compensation and that part was never under challenge. The Tribunal in its judgment dated 4.2.1986 considered the income as Rs.600/- but as the claim was of Rs.1,50,000/-, the sum was awarded. I endorse the said view as this is an accident of 1991 and sending the matter back to the Tribunal would be waste of exercise.

13. The Tribunal has not assigned any reason why interest was not paid. The granting of 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."

14. In Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590 where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-

"The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8% per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/1255/2011: (2011) 14SCC 481. Accordingly, we award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment."

15. In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366 where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9% interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481.

16. In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC where accident took place on or before 1994, High Court had awarded interest at the rate of 9% per annum which was challenged that it is on higher side. Court upheld said rate of interest.

17. In Shashikala and Others Vs Gangalak-shmamma and Another (2015) 9 SCC 150, where accident had taken place on 14.12.2006, Court allowed 9% rate of interest from the date of claim petition till the date of realization.

18. In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8% . Accident took place on 27.11.2016. It was held that 8% interest is on lower side and it should be 9%.

19. In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457, accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6%. Court held that it is on lower side and it should be 9%.

20. In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703, date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9% interest.

21. In Jitendra Khimshankar Trivedi Vs Kasam Daud Kumbhar and Others (2015) 4 SCC 237, incident was on 21.09.1990. Tribunal awarded 15% interest which was reduced to 9% Gujrat High Court. Court held that it is on higher side and awarded 9% interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).

22. Unfortunately, it goes without saying that Motor Accident Claim matters could not have been dismissed in default as has been held by Apex court. However, on that count we do not think that Insurance Company can benefit as monies were lying with the Insurance Company and therefore, rate of interest as applicable as per recent trend and as per repo rate as per decision in National Insurance company Limited Vs. Chintan Arun Kumar Raval & Another, in First Appeal No.2440 of 2014 and other matter decided on 16.9.2014 by a Division Bench of High Court of Gujarat (comprising of Hon. Mr. Justice M.R. Shah and Hon.Dr. Justice K.J. Thaker), wherein it has been held "that it is a discretion of the Court to decide the rate of interest but has to be as per prevalent rate of interest which would be given by the banks at that time. The rate of interest shall be 9% from the date of filing of the claim petition till realization". Hence 9% rate of interest would have to be awarded.

23. The appeal is partly allowed. The Insurance company would deposit the amount of Rs.1,50,000/- with 9% interest from the date of the claim petition till the judgment in review was passed and then 6% till amount is deposited.

Order Date :- Dec. 12th, 2017

Irshad