Bombay High Court

Meenakshi @ Meena Ashok Jondhale vs Sow. Anita Bhaskar Vairal on 17 December, 2011

Bench: S. S. Shinde

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                             
               WRIT PETITION NO. 3383 OF 2011




                                    
     Meenakshi @ Meena Ashok Jondhale,
     Age: 35 years, Occ: Labourer,
     R/o. Nimgaonjali, Tq. Sangamner,
     District Ahmednagar.                ...PETITIONER 




                                   
            VERSUS             

     1.   Sow. Anita Bhaskar Vairal,




                           
          Age: Major, Occ: Business,
          R/o. Galli No.9,Indira Nagar,
                 
          Sangamner, Tq. Sangamner,
          Dist. Ahmednagar.

     2.   Divisional Manager,
                
          United India Insurance
          Company Limited,
          Near Hotel Karam,Sangamner,
          Tq. Sangamner, 
      

          Dist. Ahmednagar.              ...RESPONDENTS
   



                          ...
     Mr. Rajendra L. Kute, Advocate for petitioner.
     Mr. Dhongade, Advocate holding for
     Mr. R.D. Bhalerao, Advocate for respondent No.1.





     Mr. S.V. Kulkarni, Advocate for respondent No.2.
                          ...
         
                            CORAM: S.S. SHINDE, J.

DATE : 17TH DECEMBER, 2011

ORAL JUDGMENT :


     .        Heard  learned  Counsel  for the petitioner 





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and learned Counsel for the respective

respondents.

2 Rule. Rule made returnable forthwith.

With consent, heard finally.

3. Short point is raised in this petition

whether the order passed by the Tribunal to hear

the application under section 140 of the Motor

Vehicles Act, 1988 (for short, "said Act") at the

time of final hearing of the main claim petition,

is sustainable in the light of the judgment of the

Hon'ble Supreme Court in the case of Shivaji

Dayanu Patil and another vs. Smt. Vatschala Uttam

More, reported in A.I.R. 1991 S.C. 1769.

. Learned Counsel for the petitioner

submits that, the application was filed by the

petitioner herein under section 140 of the said

Act. It was incumbent upon the Tribunal to decide

the said application, however, by the impugned

order, hearing of the said application is deferred

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and it is observed that, the said application to

be heard at the time of final hearing of the main

claim petition. Such order is impermissible. The

Tribunal was supposed to decide the application

under section 140 of the said Act immediately.

Learned Counsel in support of his contention

placed reliance upon the reported judgment of the

Hon'ble Supreme Court in the case of Shivaji

(supra) and submitted that, the provisions of

section 92-A of the Motor Vehicles Act, 1947 are

parameteria with the provisions of section 140 of

the M.V. Act, 1988. This position is also not

disputed by the Counsel for the respective

respondents.

4. According to the Counsel for the

petitioner, in the case of Shivaji (supra), the

Hon'ble Supreme Court has taken a view that, the

provision of section 92A of the Act of 1947 is a

special provision and the Tribunal is not required

to follow normal provision prescribed under the

Act and Rules with regard to adjudication of the

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claim under section 160 of the said Act for the

purpose of making an order on a claim petition

under section 92A. Therefore, according to the

Counsel for the petitioner, the application filed

by the petitioner herein under section 140 of the

said Act is required to be disposed of

expeditiously as per judgment of the Hon'ble

Supreme Court in the case of Shivaji (supra).

On the other hand, learned Counsel

appearing for the respondents submits that, the

writ petition is not maintainable challenging the

impugned order and the appeal is maintainable. IN

support of his contention, he placed reliance upon

the reported judgment of the Hon'ble Supreme Court

in the case of Yallwwa and others vs. National

Insurance Co. Ltd. and another, reported in

2007(6) S.C.C. 657. He further submits that, the

respondents have no objection if the Tribunal is

directed to dispose of the entire matter within

one month from today. Therefore, the Counsel for

the respondents submits that, the writ petition

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may be dismissed.

6. I have given due consideration to the

rival submissions. The point raised in this

petition is no more res integra. It is also not

in dispute that, provisions of section 92A of the

M.V. Act, 1939 are paramateria with Section 140 of

the New Act. The said provisions of old Act are

saved in new Act of 1988, and to that effect,

section 140 is provided. Therefore, the judgment

of the Hon'ble Supreme Court in the case of

Shivaji (supra) is squarely applicable in the

facts of this case. Para-42 and 43 of the said

judgment reads thus :

"42. Rule 306C prescribes the procedure of disbursement of compensation u/S. 92A to the legal heirs in case of death. The

submission of Shri. Sanghi is that in spite of the aforesaid amendments which have been introduced in the Rules after the enactment of S. 92A, the Claims Tribunal is required to

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follow the procedure contained in the other rules before awarding

compensation under S. 92A of the Act.

In other words, it must proceed to

adjudicate the claim after the opposite party is afforded an opportunity to file the written

submission under Rule 298, by framing issues under Rule 299 and after recording evidence in accordance with

Rules 300 and 301 and that it is not

permissible for the Claims Tribunal to make an order purely on the basis

of the documents referred to in Rules 291 A, 306A and 306B. In our opinion, the said submission of Shri.

Sanghi cannot be accepted. The object underlying the enactment of

Section 92A is to make available to the claimant compensation amount to

the extent of Rs.15,000/- in case of death and Rs.7500/- in case of permanent disablement as expeditiously as possible and the

said award has to be made before adjudication of the claim u/S. 110A of the Act. This would be apparent from the provisions of S. 92B of the Act. S. 92(B) of the Act provides

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that a claim for compensation u/S. 92A in respect of death or permanent

disablement of any person shall be disposed of as expeditiously as

possible and where compensation is claimed in respect of such death or permanent disablement u/s.92A and

also in pursuance of any right on the principle of fault, the claim for compensation u/S. 92A shall be

disposed of as aforesaid in the first

place. With a view to give effect to the said directive contained in S.

92B of the Act, the Maharashtra Government has amended the Rules and has inserted special provisions in

respect of claims under S. 92A in Rules 291 A, 291 B, 297(2), 306A,

306B, 306C and 306D of the Rules. The object underlying the said

provisions is to enable expeditious disposal of a claim petition u/s. 92A of the Act. The said object would be defeated if the Claims Tribunal is

required to hold a regular trial in the same manner as for, adjudicating a claim petition u/S. 110A of the Act. Moreover, for awarding compensation u/S. 92A of the Act, the

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claims Tribunal is required, to satisfy itself in respect of the

following matters :-

(i) an accident has arisen out of the use of a motor vehicle ;

(ii) the said accident has resulted in permanent disablement of the person who is making the claim or

death of the person whose legal

representative is making the claim ;

(iii) the claim is made against the owner and the insurer of the motor vehicle involved in the

accident.

43. The documents referred to in Rules 291 A and 306B will enable the

Claims Tribunal to ascertain the necessary facts in regard to these matters. The panchnama and the First Information Report will show whether

the accident had arisen out of the use of the motor vehicle in question. The Injury Certificate or the postmortem report will show the nature of injuries and the case of

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death. The Registration Certificate and Insurance Certificate of the

motor vehicle will indicate who is the owner and insurer of the vehicle.

In the event of the Claims Tribunal feeling doubtful about the correctness or genuineness of any of

these documents or if it considers, it necessary to obtain supplementary information or documents, Rule 306A

empowers the Claims Tribunal to

obtain such supplementary information or documents from the Police, medical

or other authorities. This would show that Rr. 291A, 306A and 306B contain adequate provisions which

would enable the Claims Tribunal to satisfy itself in respect of the

matters necessary for awarding compensation U/S. 92A of the Act and

in view of these special provisions which were introduced in the Rules by the amendments in 1984, the Claims Tribunal is not required to follow

the normal procedure prescribed under the Act and the Rules with regard to adjudication of a claim u/S. 110A of the Act for the purpose of making an order on a claim petition u/S. 92A of

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the Act .

7. Therefore, in the light of observations

of the Hon'ble Supreme Court in the case of

Shivaji (supra), the Tribunal should have decided

the application under section 140 of the said Act

immediately since the said provision is a special

provision to redress the grievance of the claimant

quickly. In that view of the matter, the impugned

order is not sustainable.

8. The contention of the Counsel for the

respondents that, the writ petition is not