National Insurance Company ... vs Kanta Devi And Others
2021 Latest Caselaw 2132 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH,
                       SHIMLA
                                       CMPMO No. 219 of 2011
                                       Decided on: 16.03.2021




                                                                          .
    National Insurance Company Limited             ...Petitioner.





                                    Versus
    Kanta Devi and others                ....Respondents.





    ...................................................................................
    Coram
    Ms. Justice Jyotsna Rewal Dua, Judge
    Whether approved for reporting?1





    For the petitioner:              Mr. Jagdish Thakur, Advocate.

    For the respondents:             Mr. Basant Thakur,                   Advocate,         for
                         r           respondents No. 1 to 3.

    Jyotsna Rewal Dua, Judge (Oral)

By way of instant petition filed under Article 227 of the

Constitution of India, the petitioner-Insurance Company has assailed

the award dated 30.03.2011, passed by learned Motor Accident

Claims Tribunal-II, Solan, District Solan H.P.

2. In terms of the award, the claimants i.e. widow and two

minor sons of deceased Rajesh Kumar were held entitled for

compensation amount of Rs.17 lacs alongwith interest. Rajesh Kumar

had died in an accident, which took place on 24.6.2009. He was

riding a motor cycle bearing No. HP-12C-1795, when he collided

with a bus bearing No. HP-12C-7322, driven by respondent

Whether reporters of the local papers may be allowed to see the judgment?

No.4/Bhag Singh. FIR No.105/2009 in this regard was registered on

24.06.2009, under Sections 279, 337 and 304-A of the Indian Penal

.

Code. During the proceedings before learned Motor Accident Claims

Tribunal-II, Solan, District Solan, H.P., it was proved that accident

had occurred on account of rash and negligent driving of the bus

driven by respondent No.4/Bhag Singh. PW-3 Kewal Singh stated

that the accident occurred in his presence and that Respondent

No.4/Bhag Singh while over-taking another bus, collided with the

motor cycle driven by the deceased Rajesh Kumar. Testimony of PW-

3 was in tune with documentary evidence i.e. FIR Ext.PW-1/A and

post-mortem report Ext. PW-2/A. Widow of deceased Smt. Kanta

Devi appeared in the witness-box as PW-4. She stated that her

husband was running a 'Kariyana' store in industrial area

Makhnumajra and was also selling milk. His total income was

approximately Rs.20,000/- per month. Age of the deceased Rajesh

Kumar at the time of accident was asserted to be 38 years. Learned

Tribunal assessed the income of deceased Rajesh Kumar as

Rs.15,000/- per month and accordingly held the widow and two

minor sons of the deceased Rajesh Kumar entitled to compensation

amount of Rs. 17 lacs.

3. Heard learned counsel for the parties and gone though

the records.

.

4(i) The relief clause of instant petition runs as under:-

"It is, therefore, respectfully prayed that this petition may very kindly be allowed and the impugned award dated 30.03.2011 as contained in

Annexure P-1, passed by the learned Motor Accident Claims Tribunal- II, Solan, District Solan, in M.A.C. Petition No.23-NL/2 of 2009, may very kindly be quashed and set aside thereby dismissing the claim petition of respondents No.1 to 3, in the interest of justice."

4(ii). Instead of filing appeal under Section 173 of the Motor

Vehicles Act, the petitioner has invoked the supervisory jurisdiction

under Article 227 of the Constitution of India in laying challenge to

the award passed by MACT. In support of his contention that such a

recourse was available to the petitioner, learned counsel for the

petitioner has placed reliance upon a judgment dated 16.11.2010

passed in CMPMO No.500/2009, titled National Insurance

Company Ltd. Vs. Sh. Lachhi Ram and others.

4(iii). The facts of the instant case are distinguishable from the

facts noticed in Lachhi' Ram's Case (Supra). Here, admittedly an

application under Section 170 of the Motor Vehicles Act was moved

by the petitioner-Insurance Company, which was rejected by the

learned Tribunal vide order dated 12.08.2010. This order was not

challenged by the Insurance Company at any point of time. Even in

this petition, no relief has been claimed in respect of the order

dismissing the application of the Insurance Company moved under

Section 170 of the Act. The order has attained finality. Under such

.

circumstances, the instant petition under Article 227 of the

Constitution of India will not be maintainable against the

compensation award passed by learned Motor Accident Claims

Tribunal under Section 166 of the Act. It was for the petitioner to

assail the award on the grounds available to it in accordance with law

under Section 173 of the Motor Vehicles Act.

Since instant petition has been held to be not

maintainable in facts of the case, therefore, the merits of the award

are not being examined. Consequently, the petition is dismissed as

not maintainable. Pending miscellaneous application(s), if any, shall

also stand disposed of.

Jyotsna Rewal Dua Judge

16th March, 2021 (rohit)