Sheo Kumar Sahrma v. Snrendra Kaur — 1986 DIGILAW 928 (ALL)

Judgment 1. BY the Court -This appeal under section 110-D of the Motor Vehicles Act has been preferred against the award dated 4th December, 1978 of the Claims Tribunal/Additional District Judge, Saharanpur whereby the claim of Smt. Surendra Kaur, respondent no. 1 was decreed against the appellant for recovery of compensation in the sum of Rs. 86,760/- out of which a sum of Rs. 50,000/-was to be paid by Oriental General and Fire Insurance Company, respondent no. 2. 2. THE facts in a nutshell necessary for the disposal of this appeal are that on 16th November, 1974 Mohinder Singh Chawla, husband of respondent no. 1, was travelling in his car from Roorkee to Hardwar. At about 7.15 P. M. the said car met with an accident with bus no. RJY 6051 belonging to M/s. Hanuman Prasad Sheo Kumar which was coming from the opposite direction resulting in the instantaneous death of Mohinder Singh Chawla. This appeal has been filed by Sheo Kumar Sharma, who, it appears, was one of the partners of M/s. Hanuman Prasad Sheo Kumar. Consequent upon the death of her husband the respondent no. 1 preferred a claim petition under section 110-A of the Motor Vehicles Act against M/s. Hanuman Prasad Sheo Kumar as opposite party no. I and against the Oriental General and Fire Insurance Company as opposite party no. 2. The claim was contested by the owner of the bus aforesaid namely M/s. Hanuman Prasad Sheo Kumar inter alia on the grounds that it was not the driver of the bus, but the driver of the car, who was guilty of rash and negligent driving ; that opposite party no. 1 namely M/s. Hanuman Prasad Sheo Kumar not being a registered firm the claim was barred by Section 69 of the Partnership Act ; that the appellant had filed an earlier claim petition and consequently the present petition was not maintainable ; that the appellant had received a certain amount on account of life insurance of the deceased which in any view of the matter deserved to be deducted from the amount of compensation payable to her and that the compensation claimed by the appellant was excessive. All the pleas raised by the appellant have been repelled by the Tribunal and the award appealed against, in the manner stated above, was given. 3. All the pleas raised by the appellant have been repelled by the Tribunal and the award appealed against, in the manner stated above, was given. 3. IT has been urged by the counsel for the appellant that M/s. Hanuman Prasad Sheo Kumar which was made opposite party no. 1 in the claim petition, not being a registered firm, the petition was barred by Section 69 of the Partnership Act. The Tribunal, in our opinion, rightly took the view that section 69 of the Partnership Act applies only to a suit and since the application for compensation under section 110-A of the Motor Vehicles Act was not a suit, the bar of section 69 of the Partnership Act was not applicable. 4. IN Union of INdia v. Gorakh Mohan Das, AIR 1964 All. p. 477 a question arose as to whether notice under section 80 CPC was necessary before filing an application under section 8 of the Arbitration Act. It was held by a Division Bench of this Court that proceedings upon an application under section 8 of the Arbitration Act are not proceedings in a suit. In M/s. Indian Oil Corporation v. M/s. Kishore Bandhu, 1978 ALJ p. 176 it was held by another Division Bench of this Court that although applications under section 20 of the Arbitration Act are statutorily given the form of a petition in the nature of a plaint and the proceedings commenced thereby also take the form of a suit by being numbered and registered as a suit in a civil court, and do raise a contention before the civil court between two sets of persons called plaintiffs and defendants, yet they have only the form, or appearance of a suit, they are in fact, and in substance, and by their nature, not a suit. 5. SECTION 110-A of the Motor Vehicles Act contemplates an application for compensation and not a suit. 5. SECTION 110-A of the Motor Vehicles Act contemplates an application for compensation and not a suit. By virtue of sub-section (2) of SECTION 110-C of the said Act the Claims Tribunal has been given powers of a civil court only for the purpose of taking evidence an oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for other purposes as may be prescribed ; and is also deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure. This power is almost analogous to the power which is exercised while disposing of an application under section 20 of the Arbitration Act. Even though sub-section (2) of section 20 of the Arbitration Act provides that application made under the said section shall be in writing and shall be numbered and registered as a suit, it was yet held in the case of M/s. Indian Oil Corporation (supra) that an application under section 20 of the Arbitration Act was not a suit. In regard to an application under SECTION 110-A of the Motor Vehicles Act there is not even a corresponding provision to that of sub-section (2) of section 20 of the Arbitration Act that the application shall be numbered and registered as a suit. The decision in the case of M/s. Indian Oil Corporation (supra) will, therefore, in our opinion, apply with greater force to an application under section 110-A of the Motor Vehicles Act and such an application cannot be treated as a suit. Since the bar created by section 69 of the Partnership Act is in regard to a suit, the application for claim in the instant case cannot obviously be held to be barred by section 69 of the Partnership Act. 6. SECTION 110-D of the Motor Vehicles Act requires the Tribunal to specify the amount of compensation which shall be paid by the insurer or the owner or driver of the vehicle. Since the owner of the vehicle is to be specified and since M/s. Hanuman Prasad Sheo Kumar claimed to be the owner of the bus concerned the claim against M/s Hanuman Prasad Sheo Kumar was obviously maintainable. It was then urged by learned counsel for the appellant that the respondent no. Since the owner of the vehicle is to be specified and since M/s. Hanuman Prasad Sheo Kumar claimed to be the owner of the bus concerned the claim against M/s Hanuman Prasad Sheo Kumar was obviously maintainable. It was then urged by learned counsel for the appellant that the respondent no. 1 had filed an earlier claim petition and consequently the present petition in which the order appealed against was passed, was not maintainable. In support of that submission he has placed reliance on a copy of the claim petition no. 1 of 1975 which is different from the present claim petition. According to him that copy indicated that some other petition had also been filed earlier. This plea was raised before the Tribunal also and was repelled. The Tribunal has pointed out that the number of the present claim petition was also 1 of 1975. Two claim petitions filed at different times could obviously not be numbered as 1 of 1975. The Tribunal has pointed out and, in our opinion, rightly that it was apparently a case where the claim petition was prepared and typed, but before filing it some changes were made therein and it was got retyped. Ultimately it is the retyped claim petition, which was filed. However, while supplying copies of the claim petition along with summons the carbon copies of the draft petition seem to have been supplied and they were issued by writing the same number viz. 1 of 1975, which is the number of the present claim petition on that wrong copy. Nothing has been brought to our notice by the counsel for the appellant indicating that any earlier petition bearing same number had ever been filed or dismissed. We accordingly find no substance in this submission either. 7. AS regards the submission that the amount received by respondent no. 1 on account of life insurance of her deceased husband should have been deducted from the amount of compensation determined by the Tribunal, it would be useful to refer to a Full Bench decision of the Punjab and Haryana High Court in Bhagat Singh Sohan Singh v. Om Sharma, reported in 1983 ACJ p. 203. It was held that such an amount could not be deducted from the compensation determined under the Motor Vehicles Act. It was held that such an amount could not be deducted from the compensation determined under the Motor Vehicles Act. A similar view was taken by a Division Bench of this Court in Krishna Sahgal v. State Road Transport Corporation, 1983 ACJ 629 . This submission also has, therefore, no substance. 8. IN regard to the question as to whether it was the owner of the car, who was also driving it, namely the deceased husband of respondent no. 1, was guilty of rash and negligent driving, or bus no. RJY 6051 was being driven rashly and negligently by its driver, it has been strenuously urged by the counsel for the appellant that keeping in view the topography of the spot, where the accident took place as stated by Gur Bachan Singh, PW 4 on whose deposition reliance has been placed as the eye witness of the accident, it was apparent that Gur Bachan Singh could not have been in a position to assess the speed at which the bus was being driven. He has emphasised that in his statement Gur Bachan Singh has stated that there was a culvert on a height of about 50-60 feet and there was slope on either way. According to him it was clear that the car of the deceased, the bus no. RJY 6051 and the roadways bus driven by PW 4 were in such position that Gur Bachan Singh who claims to have been driving the roadways bus behind the car of the deceased husband of respondent no. 1, could not have assessed the speed of bus no. RJY 6051. We find it difficult to agree with this submission. Even on the plain reading of the statement of Gur Bachan Singh it appears that the car of the deceased Mohinder Singh Chawla as well as the roadways bus running behind the said car driven by Gur Bachan Singh were all on one and the same side of the slope. Whereas bus no. RJY 6051 was coming down the slope. The car and the roadways bus coming from the opposite direction were going up. IN such a suitation in the light flashed by all the three vehicles from their respective head lights, which were on, there was apparently no difficulty for Gur Bachan Singh in assessing the speed of bus no. RJY 6051 coming from the opposite direction. The car and the roadways bus coming from the opposite direction were going up. IN such a suitation in the light flashed by all the three vehicles from their respective head lights, which were on, there was apparently no difficulty for Gur Bachan Singh in assessing the speed of bus no. RJY 6051 coming from the opposite direction. It is further clear that the bus aforesaid was being driven on the wrong side ; consequently it is not only the speed at which the bus was driven but also the manner of its being driven which assume importance in determining whether it was being driven rashly and negligently. The Tribunal after taking into consideration all the materials produced by the parties in this behalf has recorded the finding that it was the driver of the bus and not the owner of the car, who was guilty of rash and negligent driving. It was then urged by the counsel for the appellant that the statements of the witnesses produced on behalf of the appellant indicated that only one head light of the car was in order and the accident was caused on account of this defect in the car. Suffice it to say so far as this submission is concerned that this case was apparently set up as an after-thought as has been pointed out by the Tribunal at the stage when the witnesses were being examined. No such case was set up in the written statement filed by the appellant. On the other hand in paragraph 34 of the written statement it has specifically been stated that the driver of the bus looking to the full lights of the vehicles coming from the opposite direction slowed his bus. This indicates that full lights of the car were on. It was also urged by counsel for the appellant that witnesses of the appellant have stated that the deceased Mohinder Singh Chawla was under the influence of liqour and a half empty bottle was also found inside the car. According to him it is on account of Mohinder Singh Chawla being under the influence of liqour that the accident was caused and not on account of any negligence on the part of the driver of the bus. This plea too has been repelled by the Tribunal on the ground that it was an after-thought. According to him it is on account of Mohinder Singh Chawla being under the influence of liqour that the accident was caused and not on account of any negligence on the part of the driver of the bus. This plea too has been repelled by the Tribunal on the ground that it was an after-thought. It was also repelled on the ground that when the police arrived and a Panchayatnama was prepared, no bottle of liquor was found inside the car. The deposition of respondent no. 1 that her deceased husband was not addicted to liquor, as also the deposition of Gur Bachan Singh, PW 4 to the effect that no bottle of liquor was found inside the car after the accident, have also been relied upon by the Tribunal in repelling the contention of the appellant in this behalf. We find no good ground to take a contrary view. The finding of the Tribunal that the driver of the bus in question was rash and negligent, is therefore, upheld. 9. LASTLY it was urged that the amount of compensation determined by the Tribunal is excessive. On the basis of the evidence produced by the appellant the Tribunal has recorded a categorical finding that the deceased Mohinder Singh Chawla was giving Rs. 482/- per month to his wife, respondent no. 1 out of his income. The amount of compensation has been determined on this basis. No material has been brought to our notice which may have been produced on behalf of the appellant to indicate that Mohinder Singh Chawla was not giving Rs. 482/- per month to respondent no. 1. In the absence of any material to contradict the evidence produced by the respondent no. 1, we find no justification to take a view contrary to that taken by the Tribunal namely, that the deceased was giving Rs. 482/- per month to respondent no. 1. The amount of compensation having been determined on that basis cannot be said to be excessive. 10. NO other point has been pressed. In the result we find no merit in the appeal. It is accordingly dismissed with costs. Appeal dismissed.