Rumeth Bai and Others vs Krishna Prasad and Others

The appeal is directed against the impugned award dated 11-10-2000 passed by Motor Accidents Claims Tribunal, Raigarh.

The facts of the case in brief are that while Ghanjhasay was going on his bicycle, the vehicle bearing registration No. M.P. 27-B/0380 being driven rashly and negligently dashed against the deceased, as a result of which the victim of the accident died on the spot. It is also submitted by the counsel for the appellants that the vehicle in question was insured with respondent No. 3, i.e., the Oriental Insurance Company.

It is further submitted that the Claims Tribunal has awarded the compensation of Rs. 57,000/- whereas the appellants had claimed an amount of Rs. 14,31,750/- as compensation on account of death of Ghanjhasay. It is further submitted that Ghanjhasay was aged about 30 years at the time of the accident. It has come in the award of the Tribunal that the accident took place due to the rash and negligent driving of the vehicle in question. However, learned Tribunal has granted Rs. 50,000/- on account of death. Rs. 2000/- on account of funeral expenses and Rs. 5000/- for loss of consortium, totalling to Rs. 57,000/-.

Learned counsel for the appellants submitted that as the lawyers were on strike on the date when the case was fixed and none had appeared for the parties and the case was proceeded under Order XVII Rule 3 of the CPC. It is also submitted that for the default on the part of the advocate concerned, the parties should not suffer. He placed reliance on the decision rendered in the case of Rafiq and Another Vs. Munshilal and Another, wherein the Apex Court has observed as under :--

"Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on the ground that a party who, as per the present adversary legal system, has selected his Advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or mis-demeanour of his counsel."

Counsel for the appellants has further submitted that the Motor Vehicles Act is having the benevolent spirit. It is submitted that deceased was aged about 30 years at the relevant time and he died leaving behind three minor children. The minors are represented by next friend i.e, mother. Order XXXII Rule 9 is pertinent in this case and is thus quoted as under :--

"Where the interest of the next friend of a minor is adverse to that of the minor, where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor''s interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within India, or for any other sufficient cause, application may be made on behalf of the minor or by a defendant for his removal, and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit."

From the above quotation, it is clear that, in the case where the claimants are minor, it is the duty of the Tribunal to protect the interest of the minor. In case the natural guardian or appointed guardian fails to make the interest of the minor, it has to be got protected by the Tribunal. Perusal of the order shows that the Tribunal did not consider this aspect of the matter.

Perusal of the record shows that the case was fixed on 5-9-2000 on that also none of the parties were present. Lawyers were abstaining from the work. On 11-10-2000 also when the case was fixed, none of the parties appeared in the Court. Eventually, the Tribunal proceeded under Order XVII Rule 3, CPC and closed the case. It is pertinent to mention here that while proceeding under Order XVII Rule 3, CPC the Tribunal was not justified in closing the case in the manner it has done.

Under the schedule appended to Motor Vehicles Act it is provided that even the unskilled worker should be considered as having the income of Rs. 15,000/- per annum. As the deceased was aged about 30 years, at the time of accident, multiplier of 17 should have been applied.

Counsel for the parties however submitted that it would be just and proper if the adequate opportunity is provided to the claimants/appellants and respondents as well to lead their evidence. Dependency in this case has also to be calculated as provided under the Motor Vehicles Act.

Thus having considered the entire matter, in the opinion of this Court it would be just and proper that the parties be provided adequate opportunity to lead the evidence. The matter is thus remanded back to the Tribunal with a direction that the Tribunal shall provide due opportunity to lead evidence and thereafter shall decide the matter afresh in accordance with law as early as possible. This view of the matter the impugned order is set aside and the matter stands remanded back to the Tribunal.

A copy of this order be sent to the Tribunal along with the record for expeditious disposal of the case.