Neeru Gambhir and Others vs New India Insurance Co. and Others

P.N. Nag, J.—The appellant has filed this appeal against the judgment of Shri P.R. Thakur, Motor Accident Claims Tribunal, Delhi, dated 21st October, 1981, whereby on the basis of the alleged compromise between the parties he has awarded compensation u/s 110A of the Motor Vehicles Act.

The facts of the case are that on 26th June, 1974, the husband of the petitioner Shri Sham Sunder Gambhir accompanied by his mother Smt. Hemi Bai and baby daughter, Kumari Rakhi Gambhir, while traveling by a Mini Bus No. DIP-5605 from Inter State Bus Terminal at Kashmiri Gate, Delhi and going to his house at Geeta Colony across river Jamuna, met with an accident on Pushta Road near Shamshan Ghat, when another Mini Bus No. DIP-4780 coming from Jheel side collided with their bus. As a result of the accident, the husband of the petitioner Shri Sham Sunder Gambhir and others sustained injuries. In the case of Sham Sunder the injuries proved fatal. By the petition u/s 110-A of the Motor Vehicles Act filed by the petitioner for grant of compensation, Shri P.R. Thakur, Motor Accident Claims Tribunal, Delhi on 21st October, 1981, has awarded the compensation against which the present appeal has arisen.

Mr. Dhingra, learned Counsel for the appellant, has vehemently submitted that no doubt the petitioner No. 1 Smt. Neeru Gambhir, who is the wife of the deceased and guardian of the other petitioners has given the statement for the award of the compensation subject to certain conditions but those conditions have not been accepted by the respondents and they have not given any statement to that effect and have not become parties to such so called compromise. Therefore, there is no legal compromise and no decree could have been passed by the learned Motor Accident Claims Tribunal.

I have considered the submissions of Mr. Dhingra, learned Counsel for the appellant. There is force in these submissions. The Counsel for the petitioner and the petitioner/ appellant, has given the following statement before the Motor Accident Claims Tribunal, Delhi on 25th February, 1980 :

Statement of Counsel for petitioners, Shri N.K. Chaudhary along with petitioner, Smt. Neeru Gambhir on S.A.:

The petitioner is ready to accept Rs. 36,000/- as compromise award in full and final settlement of her claim against all the respondents and Rs. 500/- each for Hemi Bai and Ms. Rakhi Gambhir (minor daughter of the petitioner) against all the respondents, provided all the above said amount i.e. Rs. 37,000/- is paid by the respondents within a period of two months from today. This statement is without prejudice to the rights of the petitioners.

Statement of Counsel for petitioner Shri N.K. Chaudhary for the petitioner, Smt. Neeru Gambhir for herself and for her minor daughter, Ms. Rakhi Gambhir:

Though I am loser for Rs. 1,000/- but in view of the fact that the compromise cannot be arrived at as there is some difficulty. I accept Rs. 35,000/- instead of Rs. 36,000/- stated above, in full and final settlement of my claim against all the respondents. A sum of Rs. 500/- each be paid to Ms. Rakhi Gambhir and Smt. Hemi Bai.

The respondents, as stated above, have never accepted the statement of the petitioner and as such have not become the parties to the compromise.

Learned Counsel for the appellant has drawn my attention to the order passed by Shri P.R. Thakur, the same Motor Accident Claims Tribunal on 29th September, 1981, whereby he himself has found that insurance companies have not yet made the statements to accept or decline the offer of compromise made by the petitioners. This, in his opinion, to say the least, is exploitation of tragedies which have be-fallen on the petitioners. After having given this finding on 29th September, 1981, it is inconceivable that the learned Judge could have awarded compensation in terms of the so-called compromise. Therefore, it is inconceivable how the Motor Accident Claims Tribunal could in such circumstances award compensation in terms of such so called compromise?

The Court under Order 23, Rule 3 of the CPC has the jurisdiction to pass the order when it is proved that there is legal agreement to pass decree in accordance therewith. It is the duty of the Court to enquire the matter whether the compromise recorded is lawful one or not. In the present case, since the respondents have not given any statement accepting the offer of the petitioner, there is no compromise at all. The Motor Accident Claims Tribunal has gravely erred in law by having passed the order in terms of such so called compromise.

Therefore, the impugned order is bad in law and requires to be set aside and the matter requires to be determined afresh.

Mr. Dhingra, learned Counsel for the appellant, has further submitted that it appears that although he is not sure that Rs. 36,000/- were paid to the appellant by the Insurance Company much after the decree was passed but certainly not within the stipulated period as provided in the decree and in case such amount has been paid by the Insurance Company that will have to be adjusted against the amount ultimately to be awarded in favor of the petitioner and credit thereof shall have to be given to the Insurance Company, and they will be liable to pay the balance amount, if excess amount of compensation is awarded by the Tribunal against them. Furthermore, since the order by the learned Tribunal has been passed without jurisdiction and is inherently bad, such an order/decree cannot be validated notwithstanding whether or not any amount has been received by the petitioner under such order.

I have already held that the Court can exercise jurisdiction under Order 23, Rule 3 only in a case where there is a lawful compromise and for that purpose it is the duty of the Court to enquire into the question whether such a compromise is lawful one or not. In these circumstances, in view of the law so well settled the impugned order is liable to be set aside.

In the light of the above discussion, the impugned order is set aside and the Motor Accident Claims Tribunal is directed to decide the case afresh in accordance with law. In case the money has been received by the petitioner under the impugned order, the credit thereof shall be given to the Insurance Company and they will be liable only to pay the balance amount, if excess amount of compensation is awarded by the Tribunal against them.

Since the matter is pending since long, it will be appreciated if the matter is decided expeditiously.

The parties are directed to appear before the trial Court on 12th April, 1993.