M/S. Jaika Finance Ltd. Thru. Its ... vs Ramnik Singh Himmat Singh & 3 Ors
2017 Latest Caselaw 7562 Bom

 FA 60.08.odt                                 1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                        FIRST APPEAL NO.60 OF 2008


 M/s. Jaika Finance Limited, through
 it's Authorized Signatory Shri Uday
 Harihar Khandwe, aged about 42
 years, Occupation-Service,
 R/o. C/o. Jaika Finance Limited,
 Commercial Road, Civil Lines,
 Nagpur. (Owner of Vehicle No.
 MP-23/D-8338).                                    ..             APPELLANT

                               .. VERSUS ..

 1]     Ramnik Singh s/o Himmat Singh,
        Aged about 62 years,
        Occupation-Driver, R/o. Indora
        Chowk, Lawatre Bhavan,
        Nagpur, (Original Claimant before
        Motor Accident Claims Tribunal,
        Nagpur).

 2]     Tarachand s/o Basantkumar,
        22/63, Neharunagar, Palwar
        (Hariyana), (Owner of Vehicle
        No.HR-30/2705)

 3]     Mr. Kisan Pal s/o Baburam.

 4]     National Insurance Company Limited,
        Division No.II, Paul Commercial
        Complex, 5th Floor, Ajni Square,
        Wardha Road, Nagpur-440 015.
        Insurance of Vehicle No.MP-23/D-8338.                 RESPONDENTS

                    ..........
 Shri N.A. Gaikwad, Advocate h/f Shri A.A. Naik, Advocate for
 Appellant,
 Shri Shashikant Borkar, Advocate for Respondent no.4.
 None for Respondent Nos.1 and 2.
                  ..........


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  FA 60.08.odt                              2

                               CORAM : KUM. INDIRA JAIN, J.

DATED : SEPTEMBER 26, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and award dated 27.9.2007 passed by the Motor Accident

Claims Tribunal, Nagpur in Claim Petition No.899/1999

thereby awarding compensation of Rs.2,33,000/- against

respondent nos.1 and 2 in the petition, on account of

injuries suffered by the claimant in a vehicular accident.

2] The facts giving rise to the appeal may be stated

in brief as under :

(i) Appellant is original respondent no.3 and

owner of Truck No.MP-23/D-8338. Respondent no.4 in this

appeal is an insurer of the said truck. Respondent no.1 is

the claimant and respondent no.2 is the driver of another

Truck No.HR-30/2075 involved in the accident.

(ii) According to the claimant on 17.7.1996

he was driver on Truck No.MP-23/D-8338. While proceeding

to Delhi, the said truck was stopped near Thisauli, District

Jhansi. At around 9.30 am, another truck bearing No.HR-

30/2705 came from opposite direction in a rash and

negligent manner and gave a dash to the stationary truck.

Due to dash, claimant sustained fractures to his legs. He

was hospitalized and suffered permanent disability.

3] Petition under Section 166 of the Motor Vehicles

Act came to be filed by the claimant for compensation of

Rs.5,48,591/-. It was the case of claimant that he was

required to spend more than Rs.1,75,000/- for medical

treatment. He was working as driver and getting monthly

income of Rs.3,000/-. It was submitted that both the trucks

were involved in the accident and owners and insurers of

both the vehicles were liable to pay compensation.

4] During pendency of petition, claimant deleted

name of the owner of truck which dashed against stationary

truck and restricted the claim against respondent nos.3 and

4 i.e. owner and insurer of the stationary truck.

5] Respondent no.3-appellant filed written statement

(Exh.16) and resisted the petition. According to him,

accident took place due to rash and negligent driving of

truck in motion and not the stationary truck. Alternatively,

it was submitted that stationary truck was insured with

respondent no.4 and liability, if any, be fastened on

respondent no.4.

6] Respondent no.4-Insurance company admitted

that at the time of occurrence of accident truck No.MP-23/

D-8338 was insured with the company. It was submitted

that stationary truck was not involved in the accident.

According to insurance company, as claimant was the driver

of truck, he cannot be treated as third party and insurance

company is not liable to pay compensation.

7] Based on the rival pleadings of the parties, tribunal

framed issues at Exh.30. Claimant examined himself in

support of claim. Reliance was also placed on police and

medical papers. Considering the evidence oral and

documentary, tribunal came to the conclusion that accident

occurred due to rash and negligent driving of truck no.HR-

30/2705. So far as liability to pay compensation is

concerned, tribunal held that respondent no.3 being owner

and respondent no.4 being insurer would be liable to pay

compensation under the Workmen's Compensation Act.

The tribunal accepted disability to the extent of 40% and

awarded compensation of Rs.2,33,000/-, as stated herein-

above, against the owner and insurer of stationary truck.

It is this order which is the subject matter of challenge in the

present appeal preferred by the owner of stationary truck.

8] Heard Shri N.A. Gaikwad, learned counsel for

appellant and Shri Shashikant Borkar, learned counsel for

respondent no.4.

9] The learned counsel for appellant raised two fold

contentions, (i) the owner of offending truck was deleted

during pendency of petition and the insurer of offending

truck was not joined as a party. The submission is that

petition suffers from non-joinder of necessary party and on

this sole ground, petition ought to have been dismissed and

(ii) permanent disability certificate was not admissible in

evidence as the doctor, who issued certificate, was not

examined by claimant. In support of submission, learned

counsel pressed into service judgment of the Hon'ble

Supreme Court in Rajesh Kumar alias Raju .vs. Yudhvir

Singh and another [2008 (6) Mh.L.J. 21].

10] The learned counsel for respondent no.4 supports

the submissions advanced on behalf of appellant. It is

submitted that insurer was not liable to pay compensation,

as risk of driver was not covered under the policy, owner of

offending truck, though joined, came to be deleted during

pendency of petition and insurer was never joined as a

party.

11] From the rival pleadings and contentions of the

parties, following points would arise for determination in this

appeal.

(i) Whether petition suffers from non-joinder of necessary party.?

(ii) Whether liability to pay compensation could be fastened on the owner and insurer of stationary truck under the Workmen's Compensation Act.

12] Upon considering the evidence and material

placed on record, this court answers point no.1 in the

affirmative and point no.2 in the negative for the reasons to

follow.

13] It is significant to note that FIR has not been

produced. The only piece of evidence is certified copy of

form AA. This document indicates that accident took place

due to rash and negligent driving of truck no.HR-30/2705 by

its driver.

14] It is interesting that initially claimant arrayed

owner of offending truck as respondent no.2 in the petition.

During pendency of petition, the name of owner of offending

vehicle came to be deleted. Insurer of offending truck was

never joined as a party to the petition. In case of liability

under section 166 of the Motor Vehicles Act, it was

incumbent on claimant to join owner and insurer of the

offending truck. Form AA does not attribute any fault on the

part of stationary truck. In such a situation, submission of

learned counsel for appellant regarding non-joiner of

necessary parties cannot be said to be without substance.

15] So far as second contention is concerned, the

Hon'ble Supreme Court in case of Rajesh Kumar alias

Raju .vs. Yudhvir Singh and another (supra) observed in

paragraph 9 as under :

"9. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate.

It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time. "

16] In the present case, claimant has produced a

certificate issued by Government Medical College and

Hospital, Jammu in October-2003. Doctor, who issued the

certificate, has not been examined. In the absence of

evidence of doctor, this certificate was not admissible in

evidence. Unless the author of certificate is examined,

permanent disability certificate cannot be read in evidence.

The tribunal therefore committed an error in relying upon

permanent disability certificate and accepting 40% disability.

17] Now moot question that arises is, in the absence of

owner and insurer of offending vehicle, whether liability can

be fastened under the Workmen's Compensation Act to the

owner and insurer of stationary vehicle. In Rajesh Kumar

alias Raju .vs. Yudhvir Singh and another (supra) in

paragraph 8 of the judgment, the Hon'ble Supreme Court

observed as under :-

8. The reference to Workmen's Compensation Act by incorporation was only for the purpose of sub-section (1) of Section 163A. It was not meant to apply in a case falling under Section 166 of the Act. Had the provisions of the Workmen's Compensation Act were applicable, the procedure laid down therein would also apply. For the purpose of the definition of total disablement as also person who can grant a certificate therefor, namely, a qualified medical practitioner, Section 2(e) and 2 (i) would be attracted. In terms of the 1923 Act, the amount of compensation is required to be determined as specified in Section 4. The Rules made in terms of Section 32 of the Act known as Workmen's Compensation Rules 1924, would also be applicable."

18] In the present case, it was a petition under Section

166 and not under Section 163-A of the Motor Vehicles Act.

Therefore, observations of the tribunal in paragraph 10 of

the impugned judgment are contrary to the settled legal

propositions of law.

19] In the above premise, impugned judgment and

award are unsustainable in law and needs to be set aside.

Hence, the following order :

ORDER

(i) First Appeal No.60/2008 is allowed.

(ii) The impugned judgment and award dated

27.9.2007 passed by the Motor Accident Claims Tribunal,

Nagpur in Claim Petition No.899/1999 is quashed and set

aside.

(iii) Claim Petition No.899/1999 stands dismissed.

(iv) Statutory deposit shall be refunded to the

appellant along with the accrued interest thereon.

(v) Respondent no.4 is at liberty to recover the

amount, if any, withdrawn by respondent no.1.

 (vi)           No order to costs.



                                         (Kum. Indira Jain, J.)
 Gulande, PA