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Judgment
Being aggrieved by the judgment and award dated 6.1.2016 passed below Exh.7 in MACP no. 1308 of 2013 passed under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), the present appeal is filed under Section 173 of the Act.
Considering the short issue involved in this petition, the Court, vide order dated 20.6.2017, had issued notice for final disposal.
Heard Mr. Sunil Parikh, learned advocate for the appellant and Mr. Mousam Yagnik, learned advocate for respondent no.3 for final disposal. Though served, no one appears for respondents no.1 and 2. The matter was kept for orders today.
Mr. Sunil Parikh, learned advocate for the appellant has contended that the Tribunal has erred in not deciding the application filed by the Insurance Company to join driver, owner and Insurance Company of the Chhakdo Rickshaw bearing registration no. GJ10 X4730.
It was contended that the Tribunal has also ignored the statement which was given by the original claimant herself before the police authority on the date of the accident. It was further contended that even though the motorcycle bearing registration no. GJ3 - DQ6219 is not involved, even as per the statement of the original claimant recorded before the police on 24.9.2013 clearly points out that the rickshaw turned turtle and the motorcycle in question is not involved in the accident. It is therefore submitted that even though it is an application under Section 140 of the Act, the Tribunal ought to have followed the binding decision of this Court in the case of New India Assurance Co. Ltd., Ahmedabad v. Mithakhan Dinakhan Notiyar & Ors., 1995 (2) GLR 1111 and therefore, the appeal deserves to be allowed as prayed for.
Mr. Mousam Yagnik, learned advocate for respondent no.3 has contended that this Court may pass appropriate orders.
Considering the fact that the notice for final disposal was issued, the matter was taken up for its final hearing and the learned advocates appearing for the respective parties were heard. Mr. Parikh, learned advocate for the appellant has also produced for perusal of the Court the relevant record of the Tribunal, more particularly, the statement made by the original claimant before the police as well as other relevant documents including Exhs.26 to 28. This Court was also pleased to call for the record and proceedings from the Tribunal and the same is perused.
It deserves to be noted that this Court in the case of New India Assurance Co. Ltd., Ahmedabad v. Mithakhan Dinakhan Notiyar & Ors., 1995 (2) GLR 1111 has observed thus: "7. Rule 231 of the Gujarat Motor Vehicles Rules, 1989 contains adequate provisions which would enable the Claims Tribunal to satisfy itself in respect of matters necessary for awarding compensation under Section 140 of the Act. Subrule (9) of Rule 231 provides that the Claims Tribunal shall proceed with the application for compensation, on the basis of
(i) First Information Report;
(ii) Injury certificate or Postmortem report in case of death;
(iii) Registration certificate of the motor vehicle involved in the accident;
(iv) Cover note, certificate of insurance or the policy, relating to the insurance of the vehicle against third party risks;
(v) The nature of the treatment given by the, medical officer who has treated the victim.
While making an order under Section 140 of the Act, the Tribunal is not required to follow the procedure contained in Rules 211 to 230 and 232 of the Gujarat Motor Vehicles Rules, 1989; Where compensation is claimed in respect of death or permanent disablement under Section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under Section 140 of the Act is required to be disposed of in the first place in view of Subsection (2) of Section 140 of the Act. For awarding compensation under Section 140 of the Act, the 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 to making the claim;
(iii) the claim is made against the owner and the insurer of the motor vehicle involved iii the accident.
The question that falls for consideration is as to at what stage the Tribunal is to inquire into objection raised to the Insurance Company under the Act. Should such objections to treated as preliminary issue and be decided by the Tribunal in the first instance which in the nature of things would result in delay in regard to the payment of amount under Section 140 of the Act to the claimant and defeat the very purpose underlying the enactment of the said provision ? The object underlying enactment of Section 140 is to make available to the claimant compensation amount to the extent of Rs. 12,000/in case of permanent disablement as expeditiously as possible and the said award has to be made before adjudication of the claim under Section 168 of the Act. It must be seen that Section 140 of the Act speaks of peremptory awards in cases of permanent disablement or death. The object underlying this consideration is the immediate relief to the disabled victim of accident in case of permanent disability. Provision of Section 140 is a piece of beneficial and ameliorative legislation providing for an immediate aid to the hapless and helpless victims of the motor vehicle. The objects for which Section 140 of the Act is enacted would be defeated if the claims Tribunal is required to hold regular trial in the same manner as for adjudicating a claim made in a petition filed under Section 168 of the Act. Having regard to the purpose underlying the enactment of the said provision. I am of the opinion that the defences raised by the insurer or other objections of the insurer or the owner should be examined later when the claims petition is decided on merits. The Claims Tribunal would be entitled to make award under Section 140 of the Act as soon as it conies to the conclusion that the owner of the vehicle was involved and insured. The persons primarily responsible to pay compensation or damages for the accident to the injured or the heirs or legal representatives of the deceased are normally driver and owner of the offending vehicle. The liability of the insurer is spelled out qua the person or classes of persons specified in the policy that is qua the insured under Section 147(1) of the Act and also qua the claimant of compensation under Section 147(2) and 149(1) of the Act. If an award is given against insured holding him liable to pay certain amount as compensation or damages in regard to the claim arising out of an accident with his motor vehicle, then the liability of insurer is absolute and the insurer cannot question its liability on the ground that the amount is awarded on the principle of no fault liability. Moment either it is admitted by the owner of the vehicle that his vehicle is involved in the accident or from the evidence adduced on the record, the Tribunal positively holds that the vehicle of the owner in question was involved in that accident, then Tribunal without inquiring into correctness of other objections that may be raised by the Insurance Company would be entitled to make the award under Section 140 and require the Insurance Company to pay specified amount to the claimants forthwith and thereafter investigate and inquire into the correctness or otherwise of the other objection that are raised either by the Insurance Company or by the owner of the offending vehicle at the time of deciding main claim petition."
The FIR at Mark 9/1 shows that it was registered on 28.9.2013 and the FIR further shows that the offence was declared on 28.9.2013 and the alleged offence took place on 24.9.2013 at 20.15 hrs. The statement which is recorded before the Rajkot City Police Station which is also forming part of the record is recorded on the date of the accident i.e. on 24.9.2013, wherein the version is different than the version recorded in the FIR. It is no doubt true that while passing the impugned order below Exh.7, the Tribunal has taken into consideration the FIR, Panchnama on sight and FIR. However, on perusal of the police statement which was given by the original claimant, there is no mention of any accident with the motorcycle. The statement shows that Chhakdo Rickshaw got turtled itself and therefore, the Tribunal ought to have at least examined the involvement of the vehicle alleged to have been involved in the accident. Though it is an order under Section 140 of the Act, the ingredients which are provided in Section 140 of the Act read with Rule 231 of the Gujarat Motor Vehicles Rules, 1989, the same ought to have been examined by the Tribunal.
In light of the aforesaid therefore, the impugned judgment and award is quashed and set aside. The proceedings of application below Exh.7 are remanded back for its fresh hearing by the Tribunal on merits. The Tribunal shall take into consideration all the aspects and documents on record. Such exercise shall be undertaken by the Tribunal after hearing all the parties within a period of eight weeks from today and pass a fresh order after hearing all the parties. The appeal is accordingly allowed. Registry is directed to transmit the record and proceedings to the Tribunal forthwith.
In view of the order passed in the main matter, the Civil Application does not survive and is disposed of accordingly.