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2001 DIGILAW 177 (CAL)

New India Assurance Co. Ltd. v. Jharna Roy

2001-03-29

Subhro Kamal Mukherjee

body2001
JUDGMENT Subhro Kamal Mukherjee, J. This is an application under Article 227 of the Constitution of India challenging the award under section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act) passed by the learned Additional District Judge, Fourth Court, Howrah in M. A. C. Case No. 677 of 1992, inter alia, awarding a sum of Rs.25000/- in favour of claimants on account of the accidental death of one Manik Chandra Roy. The petitioner/Insurance Company was directed to pay the said amount within two months from the date of the said order in default the petitioner was directed to pay interest on the amount of compensation at the rate of 12% per annum till the payment is made. 2. The present proceeding arises out of an application under section 140 of the said Act filed by the claimants/opposite parties contending, inter alia, that Manik Chandra Roy, who was an Assistant Inspector of Police, was knocked down by the offending vehicle being No. WBU-904 at or about 10 a.m. on August 28, 1992 while he was waiting at the Howrah bus stand. It is alleged that the offending vehicle, which was a mini bus, came upon him at a very high speed and knocked him down. The victim was rushed to the Howrah General Hospital where he succumbed to his injuries. In the said proceeding the petitioner/Insurance Company was impleaded as the insurer of the vehicle and the opposite parties No.7 and 8 in this application as the owners of the offending vehicle. In the application for compensation, in column 16, it was categorically mentioned that the New India Assurance Company Limited is the insurer of the offending vehicle. 3. The petitioner contested the said proceeding by filing a written statement and in the written statement it was vaguely suggested that it was not possible for the petitioner to admit whether the interest of the owners of the offending vehicle was insured with the petitioner company at the material time. 4. Siddhartha Roy, one of the claimants deposed in support of the claim petition and the copy of the deposition of the said witness No.1 of the petitioners has been annexed to the present application. From the examination it does not appear to me that any suggestion was made to the said witness about the genuineness of the insurance certificate produced before the court. From the examination it does not appear to me that any suggestion was made to the said witness about the genuineness of the insurance certificate produced before the court. In the said case insurance cover note dated November 13, 1992 was filed on behalf of the claimants in support of their contention that the petitioner company is the insurer of the offending vehicle. 5. The hearing of the claim case was concluded on January 24,1995 and the aforesaid case was fixed for judgment on February 10, 1995. Only on February 9, 1995 the petitioner/company has filed an application praying for expunging the name of the petitioner/company from the said, claim case on the allegation that the petitioner/company never received any premium from the owners of the vehicle and as such the petitioner has no liability in the eye of law. By the impugned award the Motor Accident Claims Tribunal allowed the application under section 140 of the said Act and granted the claimants a sum of Rs.25,000/- towards the compensation. Being aggrieved the petitioner/company has come up with this application under Article 227 of the Constitution of India. 6. Mr. Radha Pada Banerjee, learned Advocate, for the petitioner, contended that this court should interfere under Article 227 of the Constitution of India with the award impugned as the award is patently irregular and has been passed against the petitioner/company although the petitioner/company has no liability whatsoever. Mr. Banerjee, also, submitted, in the alternative, that an order disposing of an application under section 140 of the said Act is not an award. Finally, Mr. Banerjee argued that the learned Judge in the tribunal below ought not to have relied upon the photocopy of the insurance cover note in the absence of the original. In support of his contentions Mr. Banerjee cited the case of United India Assurance Company Limited vs. Anbari and Ors., reported in 2000(2) TAC 789: 2000(10) SCC 523 . 7. Mr. Prabir Chatterjee, learned Advocate, for the opposite parties, however, contended that the present application under Article 227 of the Constitution of India is not maintainable inasmuch as the order impugned is an appealable order before this court. Mr. Chatterjee argued that deliberately an appeal has not been filed in order to avoid the rigour of statutory requirement to deposit 50% of the awarded sum in the appeal court. 8. Mr. Chatterjee argued that deliberately an appeal has not been filed in order to avoid the rigour of statutory requirement to deposit 50% of the awarded sum in the appeal court. 8. By the order impugned an application under section 140 of the said Act has been disposed of granting compensation in favour of the claimants. It is amply clear that the determination of right or liability under section 140 of the said Act amounts to an award. If the determination of the compensation payable under section 140 of the said Act is not be regarded as an award, certain beneficial aspects of the sections 168 and 173 of the said Act would be denied to the claimants, who may be dragged to the superior courts against such determination. The decision of awarding compensation under section 140 of the said Act is an award which can be challenged by the aggrieved person in an appeal. 9. A Full Bench of the Madhya Pradesh High Court in the case of Oriental Insurance Company Limited vs. Chintaman and Ors., reported in 1995 ACJ 225 , held as under: "The provisions in Chapter X only declared the rights and liabilities of the parties and the details of such rights and liabilities. The provisions in Chapter X do not provide the procedure for determination of the claim under section 140 and do not indicate whether the determination should be by way of an order or a judgment or an award. The irresistible conclusion is that Chapter X is not a self- contained code. To effectuate the provisions of Chapter X, the Tribunal must necessarily follow the relevant provisions of Chapter XII. Chapter XII has an impact on the claim under section 140 which is clear from the Explanation to sub-section (1) of section 165, proviso to sub-section (2) of section 166 and the proviso to sub-section (1) of section 168. By those provisions, some of the provisions of Chapter XII are attracted in the matter of determination of the compensation payable under section 140 of the Act. The Tribunal is constituted also for the purpose of determining the claim for compensation under section 140. The claim for compensation under section 140 may be made in the application in which the compensation for fault liability is also claimed. Section 168 contemplates an award being passed on the application made under section 166. The Tribunal is constituted also for the purpose of determining the claim for compensation under section 140. The claim for compensation under section 140 may be made in the application in which the compensation for fault liability is also claimed. Section 168 contemplates an award being passed on the application made under section 166. In the generality of cases, claims under section 140 are projected in the application filed under section 166 of the Act. The determination of the right and liability under section 140 is made following the procedure prescribed in section 168. The provision in the proviso to sub-section (1) of section 168 that the claim under section 140 has to be disposed of in accordance with the provisions of Chapter X makes abundantly clear that such determination is only under subsection (1) of section 168. This provision is made since liability under section 140 is no fault liability and the quantum of compensation is pre-determined by the statute so that in making the determination, the qualification cannot be gone into and the fault of the respondents is not relevant. These circumstances make amply clear that the determination of right or liability under section 140 of the Act amounts to an award as contemplated in section 168. The provisions of Chapter X are beneficial in character. The parallel provisions in the Motor Vehicles Act, 1939, were incorporated only in response to the suggestions repeatedly made by courts of this country. Those suggestions are made in order to help persons who are injured in such accidents or the legal representatives of persons who sustained fatal injuries in such accidents and to secure them minimum amount of compensation without being compelled to prove the fault of the persons whose fault alone would give rise to compensation according to principles of law of Torts. If the determination of the compensation payable under section 140 of the Act is not to be regarded as an award, certain beneficial aspects of sections 168 and 173 would be denied to the claimants who may be dragged to the superior courts by challenges against such determination. If the determination of the compensation payable under section 140 of the Act is not to be regarded as an award, certain beneficial aspects of sections 168 and 173 would be denied to the claimants who may be dragged to the superior courts by challenges against such determination. The benefit of section 168(2) requiring the Tribunal to deliver copies of the award to the parties expeditiously, of sub-section (3) of section 168 requiring the persons liable to deposit the amount awarded by the Tribunal within 30 days, and of the requirement in the proviso to sub-section (1) of section 173 to deposit Rs.25,000/- or fifty per cent of the award, whichever is less, in the High Court as pre-condition for entertainment of the appeal, will not be available to the claimants. It is not possible to accept that the legislature which introduces no fault liability in the 1939 Act and the 1988 Act intended to deprive such claimants of the beneficial provisions referred to above. If the party against whom a claim is made for compensation under section 140 desires to challenge the determination of the liability before the superior court either by way of revision or under Article 226 of the Constitution, the claimants will not secure the benefit that he would have otherwise secured under section 173 (1) of the Act. It is not possible to accept that such was the legislative intention.". 10. Since an appeal lies against order impugned, the present application under Article 227 of the Constitution of India against the award is not maintainable. The petitioner had clearly a legal remedy available to it by way of an appeal before a Division Bench of the court against the award and the said remedy is not only adequate but more comprehensive than the one under Article 227 of the Constitution of India. In my view, this application under Article 227 of the Constitution of India has been filed by the petitioner in order to avoid the statutory requirement to deposit fifty per cent of the awarded sum in the appeal court as pre-condition for entertainment of the appeal. 11. On the merits, also, I am not satisfied that the learned Judge in the court below has committed any error. 11. On the merits, also, I am not satisfied that the learned Judge in the court below has committed any error. The said section 140 of the said Act was enacted by way of beneficial legislation with an eye to confer benefit of the expeditious payment of a limited sum by way of compensation to the injured in such accidents or the legal representatives of persons who sustained fatal injuries in such accidents arising out of the use of a motor vehicle on• the basis of no-fault liability. The claims tribunals while deciding an application under section 140 of the said Act are not required to follow the normal procedures prescribed under the Act and the Rules with regard to the adjudication of a claim. In the case in hand, the claimants have alleged that the petitioner /company is the insurer of the offending vehicle. The written statement filed by the petitioner/company in the court below was evasive. One of the claimants was examined as petitioners' witness No.1; no suggestion was given to him challenging the liability of the Insurance Company. The claimants have filed a xerox copy of the insurance cover note. No evidence was adduced on behalf of the Insurance Company to disprove the said cover note .Nothing has been shown or produced before me to establish that the petitioners' witness No.1 was cross-examined touching the genuineness of the photocopy of the insurance cover note. It appears that none appeared on behalf of the petitioner/company to challenge the genuineness of the photocopy. In my view, filing of a petition after the conclusion of the hearing of the case is not sufficient discharge of the duties by the Insurance Company. In the aforesaid background, in my view, the decision cited by Mr. Banerjee in the case of United India Insurance Company Limited vs. Anbari and Ors.(supra) has no application cannot be applied in the facts and circumstances of the case. 12. I, however, make it clear that if ultimately it is found that the petitioner/company is not liable to pay the compensation-in-question, the petitioner company will be entitled to get it reimbursed from the owners. The application under Article 227 of the Constitution of India is rejected. There will be no order as to costs. Let urgent xerox certified copies of this order, if applied for, be supplied to the parties expeditiously. Application rejected.