Uttarakhand Transport Corporation vs Dharmendra And Others

Sharad Kumar Sharma, J

The Motor Accident Claims Tribunal referred in Chapter 12 of the Act, they are the Civil Courts as defined under Sections 168 and 169 Sub Section (2) of the Motor Vehicles Act of 1988. In the present petition, the Motor Accident Claims Tribunal and the procedure to be followed by it would be governed by the provisions contained under the Code of Civil Procedure. An interesting question which has been raised by the learned counsel for the appellant is pertaining to the effect of non-impleadment of the Insurance Company of the Tractor, which was said to have been involved in the accident, which has occurred on 03.03.2011. Before dealing with the facts of the matter, it is also necessary to refer to the provisions contained under Section 170 of the Motor Vehicles Act, 1988, wherein, the Act itself has considered as to what consequences would follow. If there is a failure to implead the Insurance Company as party to the proceedings the provisions of Section 170 is quoted hereunder:-

"170. Where in the course of any inquiry, the Claims Tribunal is satisfied that:-

(a) there is collusion between the person making the claim and the person against whom the claim is made, or

(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made."

Reverting back to the procedure prescribed under Section 169 of the Motor Vehicles Act, the learned counsel for the appellant has submitted that in their objection before the Motor Accident Claims Tribunal, without taking any specific plea that the proceedings are bad because the insurer of the tractor was not made as a party to the proceedings in the light of the provisions contained under Section 170 of the Motor Vehicles Act. However, the fact remains that the Insurance Company of the tractor involved in the accident was not made as a party in the proceedings before the Motor Accident Claims Tribunal and the proceedings after having been held under Section 169, that the Motor Accident Claims Tribunal are the Civil Courts and the proceedings before it would be governed by the provisions of Code of Civil Procedure. Even if, despite of there being no pleading raised by the appellant to the said effect, if the issue pertaining to the effect of non-impleadment of the insurer of the tractor, if at all was having any impact on determination of the compensation the appellant should have got an issue framed pertaining to Section 170 of the Motor Vehicles Act or an issue pertaining to the fixation of a liability based on the principles of contradictory negligence. In fact, mere pleading of a case before the court below or before any tribunal is based on pleading, where it entails for conducting the case after pleading and for sufficient evidence it could not be argued at an appellate stage when the appellate himself has not invoked the provisions contained under Order 14 Rules 3 and 4 to get an appropriate issue framed on the aforesaid fact of the effect of non impleadment of the insurer of the tractor.

Hence, at this stage, the said issue cannot be reframed at an appellate stage and that too without a pleading for determining the quantum of compensation. Thus this plea taken by the appellant is turned down in the absence of the pleading. In the case at hand, admittedly, the claimant/ respondent no.1, who was injured in the accident which has occurred on 03.03.2011. It was on account of collusion of Bus No.UA 07-H/8816 belonging to the appellant, with the tractor of the Nagar Palika bearing Registration No.UA 12-3995. As per the pleading raised in the claim petition the claimant/respondent no.1, had submitted that on the ill-fated day i.e. 03.03.2011, when the accident occurred he was standing in front of the tractor the bus which was driven by respondent no.2 negligently and rashly dashed against him, causing grievous injuries to him.

As per the case before the Motor Accident Claims Tribunal, the claimant's case was that the bus was being driven rashly and negligently and it dashed against the tractor which has resulted into the accident and respondent no.1, who was standing in front of the tractor suffered serious injuries and he was referred to Himalyan Institute of Jolly Grant, wherein, he had to undergo minor surgery and thereafter, he was admitted in the PGI, Hospital, Chandigarh, and on the next day after his admission he was referred back in CMI, Hospital, Dehradun, where he remained under the treatment for a period of one month. Later on, looking to the seriousness of the injuries which has been suffered by him as per the medical advise extended by the doctors his left leg was amputed from below knee.

Hence, he has filed a Claim Petition before the Motor Accident Claims Tribunal on 23.04.2012 claiming a compensation of Rs.25,80,000/- in which he contends to have suffered a disability of 60% and it has reduced his earning capacity in the future. However, the fact which is admitted by the claimant was that at the time when accident occurred he was working in the Nagar Palika and was earning a total sum of Rs.18,342/- per month and he has also led an evidence pertaining to the medical expenditure which has been incurred by him during his treatment. The Uttarakhand Transport Corporation in their objection preferred as Paper No.12 Ka, though, had denied the averments made in the claim petition for want of knowledge and they have alleged that in fact the accident has occurred due to rash and negligent driving of the tractor being registration No.UA 12-3995 and thus the liability ought to be harnessed upon the owner of the tractor i.e. respondent no.3 or its insurer. However, in the written statement, there was no plea regards Section 170 of the Motor Vehicles Act, 1988.

It was also contended that the tractor was being stationed on the wrong side of the road which has resulted into the accident dated 03.03.2011. Respondent no.2 was the driver of the vehicle i.e. the bus he had not participated in the proceedings and it was carried ex parte as against him by an order dated 17.04.2013. The owner of the tractor i.e. Nagar Palika, who was appearing as opposite party no.3 and its driver of the tractor as opposite party no.4 before the Motor Accident Claims Tribunal have denied the version extended by the appellant pertaining to the accident by filing a written statement being paper nos.22/1 and 23/1 and denied the fact as pleaded by the appellant and contended that the accident was on account of rash and negligent driving of the bus of the appellant. After the exchange of pleading, the following issues were framed:-

"(1) Whether the accident took place on 03.03.2011 at 10:00 P.M., 01 Km. ahead from Kauriya on account of rash and negligent driving by the driver of Roadways Bus No.U.A. 07H-8816 and hit the petitioner, in which petitioner Dharmendra sustained grievous injuries?

(2) Whether all the documents relating to the vehicle in question along with driving license of the driver were not valid and effective at the time of accident, if so, its effect?

(3) To what amount of compensation, if any, the petitioner is entitled and from whom?"

What is relevant to be remarked over here is that none of the parties before the Tribunal had got any issues framed pertaining to the determination of the impact of contributory negligence nor any issues was ever framed as to what would be the impact on the proceedings of non impleadment of the insurer of the tractor in the light of the provisions contained under Section 170 of the Motor Vehicles Act. Admittedly, as per the finding which has been recorded in the award as rendered on 03.09.2015 by the Motor Accident Claims Tribunal/District Judge, Pauri Garhwal, the petitioner had filed the following documents by way of an affidavit Paper No. Kha 27 and has also adduced the oral testimony of an employee of the CMI, Hospital, Dehradun, Mr. Pravesh Kumar as PW 2 and other oral evidences in support of his case. Besides this, he has also filed a detailed documentary evidence pertaining to the effect of lodging of the FIR Paper No.C-4/1, the disablement certificate C-4/3, the salary certificate C-4/4 and the documents pertaining to the expenditure which he has incurred in undertaking the treatment of his left leg which has ultimately culminated into its amputation. He has also led an eivdnece by way of Paper No.C-58 with regards to the estimated cost which he has incurred in getting an artificial leg below his knee which was adduced by way of Paper No.C-59 before the Motor Accident Claims Tribunal also the bills relating to the expenditure incurred.

While on the other hand, the appellant had also produced on record the registration certificate of the roadways bus as Paper No.C-54/1 and Paper No.C-54/2 was the fitness certificate of the bus and the driving licence of the bus driver i.e. C-54/2 and the copy of the FIR also as Paper No.C-54/4. As far as OP Nos.3 and 4 are concerned who were the owner of the tractor and driver respectively the case has proceeded ex parte against them by an order dated 15.09.2014, as despite of the notices being served by the tribunal, they had appeared before the tribunal but they have not participated in the proceedings before the Motor Accident Claims Tribunal.

However, another witness which was examined by the tribunal was constable Rajesh Kumar Yadav, who has filed Paper No.C-43/3, i.e. the Registration Certificate of the Tractor-UA 12/3995, Paper No.C-43/5 i.e. the Insurance Certificate of the tractor, besides this, the driving licence of the driver of the tractor was also filed before the Tribunal. The Tribunal while it was dealing with the Issue No.1 pertaining to the reasons which has attributed to the accident, the Motor Accident Claims Tribunal recording the finding on Issue No.1, had come to the conclusion that as per the circumstances which has been narrated, when the claimant and other workers had come down to unload the tractor waste. Even the driver of the offending vehicle i.e. the bus who was the eyewitness had deposed before the court below pertaining to the circumstances under which the accident has occurred.

Consequently, this Court while concluding its finding on Issue No.1 has come to the conclusion that on appreciation of the evidence and the failure on the part of the appellant to show that the accident was caused because of rash and negligent driving of the bus and had come to a conclusion that the claimant has suffered on account of rash and negligent driving of the bus and accident has taken place due to which it has resulted into an amputation of the left leg of the claimant from below the knees.

While determining the quantum of compensation payable while deciding Issue No.3, the Motor Accident Claims Tribunal, has given a detailed scrutiny of the amount spent by the claimant in his treatment after considering the documents filed by him regarding the expenditure incurred which he has undertaken in various hospitals and the same has been dealt with in paras 25, 26 and 27 of the said judgment and as per the computation which has been arrived at by the Motor Accident Claims Tribunal, approximately, a sum of Rs.3,00,050/- lacs has been spent by the claimant on his treatment on account of the injuries suffered due to the accident. Hence, the Motor Accident Claims Tribunal has determined a total expenditure as to be a sum of Rs.3,00,050/-lacs, which has been actually spent and considering the extent of disability which has been determined by the medical practitioner vide certificate of disability it was held as to be 60% as would be apparent from the certificate issued for the disablement paper no.C-4/3, thus the Tribunal has come to a conclusion that the appellant would be entitled for an overall compensation over various heads as to be the compensation of Rs.7,00,050/- along with 6% interest from the date of the application under Section 166/140 of the Motor Vehicles Act.

The learned counsel for the appellant has submitted that the reference made by the Tribunal to the judgment of the Hon'ble Apex Court has rendered in Master Mallikarjun's case, where a reliance has been placed to its para 12 of the judgment which reads as under:-

"12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60% Rs.4 lakhs; upto 90% Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be 1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents."

For the purposes of determination of the compensation in the circumstances of the present case, he contends that the said ratio will not be applicable in the instant case. For the reason being that the said case related to an injury which was caused to the minor who had suffered the disablement. The age of the claimant or the determination of the quantum of compensation would never dependent upon the life of the claimant who has met with an accident. Meaning thereby, life expectancy cannot be a factor in injury case which could be taken as the basis for calculating the compensation. It always relates back to the nature of injuries its gravity, it effect on rest of the life, and the actual expenditure which has been incurred in taking the treatment. Since the Motor Accident Claims Tribunal has considered these aspects and has held out that the fact of the accident dated 03.03.2011 which was not denied was caused on account of rash and negligent driving of the vehicle by the respondent no.2, who had not appeared before the court below. The Motor Accident Claims Tribunal has determined the quantum of compensation as a sum of Rs.7,00,050/-.

This Court after hearing the counsel for the parties and going through the evidence adduced before the court below is of the view that looking to the manner in which the accident has chanced and considering the extent of injuries suffered by the applicant who at the time of the accident was only of 35 years of age and looking to the nature of injuries and the impact which it would have over rest of the life of claimant were also the factors which required to be considered. This Court too holds that the quantum of compensation as determined by the Motor Accident Claims Tribunal do not suffer from any apparent wrongful determination of the amount. Because the fact of 60% permanent disability was proved beyond doubt.

Consequently, this Court is not inclined to interfere with the impugned judgment dated 03.09.2015. Hence, the appeal fails and the judgment of award dated 03.09.2015 as rendered by the Motor Accident Claims Tribunal, District Pauri Garhwal is affirmed.

Accordingly, the present Appeal from Order is hereby dismissed. However, there would be no order as to costs.

It is further clarified that the statutory deposit of Rs.25,000/- which has been made by the appellant at the time of filing of the appeal would be remitted back to the Tribunal concerned to be paid to the applicant claimant as a consequence of the today's judgment.