The United India Insurance Co. Ltd. vs Smt. Meena and Others

Y.K.Sangal, J.—This First Appeal has been filed against the judgement /award passed by the first Additional District Judge/ Motor Accident Claim Tribunal, Kheri (hereinafter referred to as ''the Tribunal'') in claim petition No. 105 of 1998 Smt. Meena and Ors. v. Deepak Chatraval awarding a sum of Rs. 75,000/- (Rs. Seventy Five Thousands) as compensation with 9% interest per annum from the date of filing of the petition till the date of payment u/s 166 of the Motor Vehicle Act (hereinafter referred to as ''the Act'') in favour of the respondent nos 1 and 2 and also directing the appellant to satisfy the award.

The Appeal was fixed for hearing on 09.09.2009 but none appeared on behalf of the respondents, although names of learned Counsel for the respondents are printed in the cause list so order was passed for hearing of the Appeal in ex-parte proceedings on 10.09.2009. On 10.09.2009, learned Counsel for the petitioners and respondent Nos. 3 & 4 appeared but none appeared for the respondent Nos. 1 & 2. Arguments were heard and record including the trial court was perused.

As per the petitioners'' case on 28.04.1997 at about 5 :00 A.M., near village Udaynpur when the petitioners along with their son (deceased) and others were waiting for conveyance, suddenly Driver of the Truck No. USZ 4503 bringing the vehicle by driving it in rash and negligent manner and it turned tile there. Petitioners, their son and some others were standing there on the side of the road, received injuries in the accident and petitioners'' son succumbed to the injuries on the spot. The vehicle was owned by the respondent Nos. 1 & 2 of the claim petition and the same was insured with respondent No. 3 i.e. United India Insurance Company. They prayed for award of compensation of Rs. 3,00,000/- (Three lacs).

Respondent No. 1 filed its written statement denying the involvement of his Truck in the accident and also stated that no injury was caused to any person owing to involvement of his Truck. The Driver of the Truck Vishwanath Prasad was driving it and suddenly Gulla of the Truck was broken, as a result, the Truck was turned tile but nobody including the petitioners'' son had received injuries and the death of the petitioners'' son has not taken place due the injuries in the accident his death was result of the illness.

Respondent No. 3 /petitioner filed written statement. In paragraph 27 of the written statement it was stated that Truck was not insured for sitting passengers while the deceased (along with his parents) was sitting in the Truck at the time of accident which is against the conditions of the policy issued, hence the claim petition is liable to be dismissed against the Insurance Company. Certain other pleas were taken in the written statement.

Issues were framed from the pleadings of the parties. Parties filed documentary evidence in support of their respective cases and also adduced oral evidence. Owner of the vehicle had not adduced any oral evidence. After hearing the arguments and perusing the record by the impugned judgement /award, the claim petition was allowed as above.

How this accident taken place. There are three different stands on this issue. One was taken by the claimants in the application u/s 166 of the Act and other was taken by the owner of the vehicle in his written statement that the death of the son of the petitioners had taken place due to illness and not owing to accident. Third case was taken by the Insurance Company/appellant in paragraph 27 of the written statement, as referred above. Undisputedly, no evidence was adduced by the owner of the vehicle in support of his case regarding the accident and death due to illness of the son of the petitioners. A copy of the postmortem report is also available on record showing the cause of death was due to injuries received by the victim. Neither the driver of the vehicle nor the owner was examined to support the case of the owner so, it cannot be taken established that the death of the son of the claimants has taken place due to illness. The case of the claimants was accepted by the Tribunal and issue No. 1 was decided in their favour. Another issue No. 4 was framed by the Tribunal as follows:

(4) Whether the owner of the Truck No. USJ 4508 has breached the conditions of the policy, if so its effect.

But from the perusal of the impugned judgment, it is clear that this issue was not taken into consideration by the Tribunal when the judgement was delivered. As owner of the vehicle was not cooperating the insurance company in the case and not contesting the case seriously so an application u/s 170 of the Motor Vehicle Act was moved on behalf of the Insurance Company and the same was allowed by the tribunal vide order dated 29.01.2004 which is clear from the record and the Insurance Company was permitted to contest the case on all grounds and on merit.

To support its case detailed in paragraph 27 of the written statement, the insurance company/appellant examined D.W.-1 Dharmendra Kumar who was appointed Surveyor on their behalf. He stated in his on oath statement that during the course of survey /investigation, he met with several persons of the village situated near the place of occurrence and what they stated he got it in writing from them. He narrated those facts in his on oath statements which supports the case of the insurance company taken on their behalf in the written statement. In his on oath statement, he referred paper No. 44 C-1 as wirtten statements of those persons but from the perusal of the record, it is clear that these papers filed by the insurance company are available on filed per list 30 C-1 and 44 C-1 is another application. These are photocopies of those written statements which were obtained by Dharmendra D.W.-1. Why the original statements were not taken on record by the tribunal and why allowed to get proved these photocopies by the D.W.-1 Dharmendra in his on oath statement, it is also not clear from the record. The on oath statement of D.W-1 and these papers available on record per list 30C filed on behalf of the insurance company were not even considered by the tribunal while passing the impugned judgement and no reason was also given to discard the same. A copy of general diary of concerned police station was also filed on behalf of the petitioners. Per list C-5 which is available on record. As this copy of the general diary was not readable so two applications 42-C and 45-C were moved on behalf of the insurance company to summon the original general diary from the police station but no sufficient reason has been given by the Tribunal why this G. D. was not got summoned. Learned Counsel for the appellant argued that facts narrated in the General Diary statement of the owner of the vehicle where he has stated that deceased and two other children along with their parents were traveling in the Truck which suddenly turned tile and in this accident, the son of the claimants had died on the spot due to the injuries received by him. Learned Counsel for the appellant further argued that as this original G.D. was not got summoned by the Tribunal, the insurance company failed to brought on record the important piece of evidence which supports its case. Three applications 42-C, 44-C and 45-C were moved on behalf of the appellant in the trial court to summon the witnesses detailed in these applications. Learned Counsel for the appellant argued that all the three applications were not disposed of by the tribunal by a well reasoned order. It was directed to the learned Counsel for the appellant to obtain Dasti summon of the witnesses and to serve on them and be produced the witnesses in the court. In application 44C, it was specifically mentioned on behalf of the appellant that it is not possible to produce the witnesses after serving them with the summons taken Dasti and it was prayed to summon them through the court. Again application 45-C was moved with the same prayer but by the order dated 11.02.2004 passed on the order sheet by the trial court it reveals that this application was wrongly dismissed. Learned Counsel had drawn my attention on the rules framed applicable in Utter Pradesh for the Motor Vehicle Act, 1988. Rule 210 & 215 provides as follows:

Rule 210 : Summon on witness ; where an application, presented by any party to the proceedings for summoning of witnesses, the claim tribunal shall on payment of expenses involved , if any, issue summons for appearance of such witnesses, unless it considers that their appearance not necessary for a just decision of a case.

Rule 215 - Power to examine; the claim tribunal may if it thinks necessary, examine any person likely to be able to give information relating to the injury irrespective of the fact whether such person has been or has to be called as witness or not.

From the above rules, it is clear that on payment of the expenses and in the circumstances of the case and also seeing the importance of the witnesses detailed in the matter, it was the duty of the tribunal to get summon these witnesses and to record their statements. Without giving sufficient reasons , these applications were rejected and the insurance company was failed to bring before the court the important piece of evidence to support its case.

From perusal of the record, it also reveals that on behalf of the insurance company document per list 39 C was filed which is C-40 on record. This application is said to has been moved to the District Magistrate by the persons who received injuries in this accident. From perusal of the contents of this application, it reveals that this accident took place due to over turn of the Truck and passengers of the Truck received injuries. Learned Counsel for the appellant argued that this application also bears the thumb impression of both the petitioners but no sufficient opportunity was allowed by the tribunal to prove this document which supports the case of the insurance company. This is another circumstance, which supports the case of the appellant that sufficent opportunity of defending the case was not allowed to the appellant by the tribunal.

It was also the plea of the insurance company before the tribunal that permit under which the Truck was being plight at the time of the accident a fake one and to establish this fact , an application 33 C was moved before the trial court to summon the record from the R.T.O to check the genuineness of the permit but this application was also rejected without giving sufficient and cogent reasons. Learned Counsel for the appellant, further argued that respondent No. 3 was deprived to bring on record the report of the R.T.O to show that vehicle was not being plight under the valid permit which was against the conditions of the policy.

In deciding the case, tribunal has considered the decision of another case delivered by the tribunal in M.A.C.P. case No. 104 of 1998 Smt. Meer v. Deepak Chatarwal decided by the Ist additional District Judge/ Motor Accident Claim Tribunal dated 27.03.2003 and held that this case was also arose from the same accident where it was held by the court that the accident taken place due to rash and negligent driving of the Driver of Truck No. USJ 4503.

Learned Counsel for the respondent argued that without satisfying himself whether any appeal is pending or not and the award passed in that case was satisfied or not , the tribunal has based its finding on that judgment which is against the provisions of law. A judgement which has not attained finality, cannot be taken into consideration, as such under the provisions of law.

Another important argument was raised that issue No. 4 was framed in the matter but neither this issue was considered by the tribunal nor it was decided by the impugned judgment. He drawn my attention on the Rule 220of the M.V. Act, where it is provided that the claims tribunal in passing the award shall record concisely the finding on each of the issues framed and the reasons for such finding and making an award.

In 1997 ACJ 61 Amrita Devi v. S.K. Srivastava it was held by this Court that it is expected from the tribunal to record its finding on all the issues framed and that alone have come to the conclusion of granting or denying the relief to the claimant.

Application 105 D was also moved on behalf of the Insurance Company available on the trial court file with the prayer to decide this case along with other cases arose with the same accident, pending in the court. But this application remain un-disposed, it is clear from the record.

Learned Counsel for the appellant argued that P.W. 1 is an interested witness as claimant of the case. Presence of other witnesses was also stated on the spot at the time of accident and it is said that there are injured witnesses of same accident none of them was examined in support of the case. P.W. 1 has stated on oath statement that she became unconscious on the spot. Learned Counsel for the appellant argued that from her on oath statement, it cannot be taken established that claimants have established their case. In the circumstance of the case, it will be proper for the trial court that if claimants also apply for adducing additional evidence to establish their case, they may be permitted to adduce additional evidence and to produce documents.

Issue No. 4 has not been decided by the trial court/tribunal. It is to be decided by the trial court in accordance with law.

In this case, insurance company/appellant was directed to satisfy the award under the impugned order. The insurance of the vehicle was not denied at the time of the arguments. The case of the insurance company in written statement was that vehicle was not being plight according to the terms and conditions of the policy. It was not being plight under a legal and valid permit at the time of occurrence and this vehicle was Goods Carriage and was not insured for the sitting passengers in the Truck. The accident took place when claimants and victims were traveling by the Truck, hence no liability of the insurance company can be held under the provisions of law. Claimants came before the court with a false story in order to get compensation from the appellant. It was unlawful to carry on passengers in the Goods Vehicle. Case law reported in 2008 (1) TAC (2) Smt. Thokcham and Ongbi Sangeeta alias Sangi Devi and Anr. 2008 (2) TAC (1) National Insurance Company v. Premadevi 2009 (1) TAC 420 National Insurance Company v. Ratnai 2005 (2)TAC (5) M.V. Jaydevappa v. Oriental Fire and General Insurance were cited on behalf of the appellant where Hon''ble apex Court held that legislative intent is to prohibit goods vehicle from carrying on passengers. Definition of goods carriage being solely for carriage of goods. Carrying on passengers in a goods carriage not contemplated under the Act. Provisions of the Act do not enjoin any statutory liability on the owner of the vehicle to get his vehicle insured for any passenger traveling in a goods carriage and insurer would have no liability. Tribunal not justified in holding the insurer and the held the liability to satisfy the award.

In the light of the above all discussions, matter requires reconsideration by the tribunal . It will be appropriate for the tribunal to frame additional issue as the case of appellant detailed in paragraph 27 of the written statement. The Trial Court will take steps to summon the record from the R.T.O office to check the validity of the permit, if again application is moved in this regard by the insurance company. Witnesses will be summoned by the trial court in the light of Rule 210 of the Motor Vehicle Act, if again applied on behalf of the insurance company. In the case of necessity tribunal is also free to exercise his power as provided under Rule 215 of the Motor Vehicle Act.

In the above circumstances, appeal is to be allowed and case is to be remanded to the trial court.

Order

Appeal is allowed. Impugned judgement/award passed by the trial court/ tribunal is hereby set aside. The case is remanded back to the learned trial court to decide the same afresh in the light of the observations made above. As the case is very old, it is expected from the tribunal that this may be decided within six months from the date of file of the trial court is received in the court concerned. It is expected from the parties of the case that they will co-operate the tribunal in deciding the case in the aforesaid period. Office is directed to trace out the record of the trial court forthwith.