The New India Assurance Company Limited vs Azarabee and Akbar

P.P.S. Janarthana Raja, J.—The appeal is preferred by the appellant-Insurance company against the award dated 21.12.2001 made in

MCOP No. 726 of 1994 by the Motor Accident Claims Tribunal (Sub Court), Tiruppur.

Background facts in a nutshell are as follows:

The first respondent-claimant met with motor vehicle accident that took place on 06.02.1994 at about 10.30a.m. While he was walking along with

his son in Kangeyam Cross Road, a moped bearing registration No. TN 39A 8848 came in a rash and negligent manner and hit the claimant. Due

to the said impact, the first respondent-claimant, sustained grievous injuries. Immediately he was admitted in Government Headquarters Hospital,

Tiruppur. He claimed a sum of Rs. 6,35,250/- but restricted his claim to Rs. 4,00,000/- as compensation before the Tribunal. The appellant-

Insurance company resisted the claim. On pleadings the Tribunal framed the following issues:

Whether the claimant is entitled to compensation?

Whether the petition is liable to be allowed?

After considering the oral and documentary evidence, the Tribunal held that the first respondent-claimant is entitled to compensation and awarded

a sum of Rs. 93,750/- with interest at 9% per annum from the date of petition and the details of the same are as under:

Permanent disability Rs. 78,750/-

Pain and sufferings Rs. 5,000/-

Medical expenses Rs. 10,000/-

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Total Rs. 93,750/-

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Aggrieved by that award, the appellant-Insurance company has filed the present appeal.

The learned Counsel appearing for the appellant-Insurance company vehemently contended that the Tribunal has not considered the specific

plea raised with regard to the fact that the rider of the moped has not possessed any valid licence and no issue has been framed with regard to

negligent aspect and the Tribunal has only considered the quantum of award. The Tribunal ought to have considered the negligent aspect and

therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside.

Heard the learned Counsel appearing for the appellant and perused the materials available on record. On the side of the claimant, P.Ws.1 and 2

were examined and documents Exs.P1 to P5 were marked. On the side of the appellant-Insurance company RW1 and RW2 were examined and

Exs.R1 and R2 were marked in support of their claim. P.W.1 is the claimant. PW2 is the Doctor Mohammed Subair. Ex.P1 is the series of

medical bills. Ex.P2 is the wound certificate relating to the claimant. Ex.P3 is the discharge summary. Ex.P4 is the disability certificate issued to the

claimant. Ex.P5 is the X-ray. RW1 is one Annamalai. RW2 is the Revenue Divisional Officer. Ex.R1 is the Investigation report. Ex.R2 is the xerox

copy of the licence. There is no material available on record to show that the rider of the moped possessed valid licence and also whether there is

negligence on his part. The Tribunal has also not framed the issues in respect of the same and has not considered this aspect. Therefore, the

learned Counsel appearing for the appellant-Insurance company submitted that the Tribunal has failed to frame an issue regarding licence and

negligence aspect. When a specific plea is made by the appellant-Insurance company, the Tribunal ought to have considered the same. The

Tribunal is the highest fact finding authority which should consider the said fact. Moreover, no first Information report has been filed. Considering

the oral and documentary evidence and in the interest of justice, the order passed by the Tribunal is set aside with a direction to Sub Judge,

Tiruppur to consider the specific plea raised by the appellant-Insurance company that (1) whether the rider of the moped has valid licence or not?

and (2) whether the accident occurred due to the rash and negligent driving of the driver? after giving opportunity to both the parties and decide the

above issue in accordance with law as expeditiously as possible. The parties are also directed to co-operate with the Tribunal without taking

unnecessary adjournment. It is also made clear that the amount already deposited shall continue until further orders.

Accordingly, the civil miscellaneous appeal is allowed and the matter is remanded to the Tribunal to consider the questions stated in the above

paragraphs of this judgment. No costs.