New India Assurance Co. Ltd. vs Bharatilal Gandre and Others

N.K. Agarwal, J.

Heard.

The instant appeal has been directed against the award dated 24-11-98 passed by the IIIrd Additional Motor Accident Claims Tribunal, Durg in Claim Case No. 57/97 whereby and whereunder an amount of Rs. 2,50,000/-along with interest @ 12% per annum from the date of application till its payment has been awarded against the appellant and in favour of the respondent No. 2 with costs.

Brief facts of the case are as under:-

The respondent No. 2 met with an accident on 5-7-96 by truck bearing Registration No. MP 24/4254 resulting in amputation of left leg from thigh. As against Rs. 11,50,000/- claimed by the claimant by filing application u/s 166 of the Motor Vehicles Act, 1988 before the Tribunal for the injuries sustained in the said accident, learned Tribunal awarded a total sum of Rs. 2,50,000/- along with interest @ 12% per annum from the date of application till its payment holding the appellant also liable for its payment. Hence this appeal.

The only submission made by Shri Shree Kumar Agrawal, learned Sr. Counsel for the appellant is that learned Tribunal has erred in dismissing the application filed by the appellant under Order 26, Rules 1 and 4 of C.P.C. for examination of R.T.O. Officer, Udaipur, Rajasthan and the Investigator Vinod Kumar Tank, Udaipur on commission and thus deprived the appellant to establish their defence taken regarding invalid licence of the driver of the offending vehicle which is, as per them, fake and forged.

Per contra, Shri H.S. Patel, learned counsel for the respondents No. 1 and 2 would submit that the matter is very old. The claimant suffered amputation and in case the matter is remanded back to afford opportunity to the insurance company to establish its defence, then the claimant would sustain irreparable loss.

I have heard learned counsel for the parties and perused the record and award impugned.

The application preferred by the appellant for examination of R.T.O. person and the Investigator Vinod Kumar Tank, resident of Udaipur, Rajasthan on commission by appointing a local counsel as commissioner has been turned down by learned Tribunal vide its order dated 8-10-98 only on the ground that the appellant has not given the complete address of the witness which in the opinion of this Court is not correct. At least, the R.T.O. Officer of Udaipur, Rajasthan and the Investigator Vinod Kumar Tank ought to have been directed to be examined on commission by appointing a local Advocate as commissioner. In order to give fair opportunity to substantiate the defence taken by the Insurance Company, examination of the above referred persons on commission was necessary.

In view of the foregoing, the appeal is partly allowed, so far as the liability of the Insurance Company is concerned, the impugned award dated 24-11-1998 is set aside and the matter is remanded back for examination of R.T.O. Officer of Udaipur, Rajasthan and the Investigator Vinod Kumar Tank, Udaipur, Rajasthan on commission and for considering and deciding the liability of the Insurance Company after considering the effect of evidence so adduced. For this, the Tribunal shall appoint local counsel as commissioner. Cost of the commission shall be born by the appellant and the Tribunal shall thereafter proceed to pass award in accordance with law.

So far as other part of the award is concerned, that shall remain as it is. It is also made clear that the amount deposited by the Insurance Company during appeal shall not be required to be refunded to the Insurance Company at this stage and if in the opinion of the Tribunal, the Insurance Company is not found liable to indemnify the owner, then the same shall be recovered by the Insurance Company from the owner of the vehicle by filing an execution application directly against the owner.

Parties shall appear before the Tribunal on 11-1-2010. It is also expected that the Tribunal shall decide the matter as early as possible preferably within a period of 4 months thereafter.

The Registry is directed to send back the papers, requisitioned form the Tribunal, forthwith.