UNITED INDIA INSURANCE CO. LTD v. NEERAJ KUMAR MISHRA
2004-08-30
S.S.KULSHRESTHA
body2004
DigiLaw.ai
S. S. KULSHRESTHA, J. ( 1 ) HEARD Mr. Ram Singh, Advocate, appearing on behalf of claimant-respondent and Mr. P. K. Bisariya from the side of the opposite party no. 4 and also perused the materials on record. ( 2 ) THIS revision under section 115 the Civil Procedure Code, 1908, has been brought against the judgment and order dated 12. 5. 2003 passed by learned Motor accidents Claims Tribunal/addl. District judge Court No. 5, Fatehpur, in M. A. C. No. 144 of 2002, whereby granting compensation in the tune of Rs. 1,15,648 together with interest at the rate of 7 per cent per annum against United India Insurance co. Ltd. (which is hereinafter referred to as the revisionist ). Further, certain directions were also given against the claimant for lodging report against the claimant for fabricating false bills so as to multiply the claim. It has also been urged by the learned counsel for the revisionist that the Tribunal has not properly evaluated the evidence on record. There was ample evidence that the claimant was rashly and negligently driving the motor cycle which met with an accident with Tempo No. UP 71-A 6098. Whatever the compensation has been awarded could well be apportioned by New India Assurance Co. Ltd. with which that motor cycle was insured. It has further been mentioned that bills submitted by the claimant were found to be false and fabricated and so on those bills the compensation ought not to be awarded. ( 3 ) THIS revision was resisted by the claimant and also from the side of New india Assurance Co. Ltd. with which motor cycle was insured. Before proceeding to take up this revision, learned counsel for the revisionist referring to the decision given by the Supreme Court in the case of sadhana Lodh v. National Insurance Co. Ltd. , 2003 0 ACJ 505 (SC), urged that the appeal against the order of the Tribunal would be maintainable only on limited grounds specified in section 149 (2) of the motor Vehicles Act, 1988. Where no forum is provided in that situation revision alone is maintainable. In this regard it shall be useful to quote the observations made by the Apex Court in the case of Sadhana lodh (supra).
Where no forum is provided in that situation revision alone is maintainable. In this regard it shall be useful to quote the observations made by the Apex Court in the case of Sadhana lodh (supra). "the right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/ 227 of the Constitution on the premise that insurer has limited grounds available for challenging the award given by the Claims Tribunal. Section 149 (2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under section 149 (2) of the Act. [see National insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 0 ACJ 1950 (SC)]. . . Even where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under section 115 of the Code of Civil procedure. Where remedy for filing a revision before the High Court under section 115 of Code of Civil Procedure has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. " ( 4 ) THE claim petition was brought by neeraj Kumar with the allegations that on 18. 11. 2001 he was sitting on the red Hero honda No. UP 71-C 1076 being driven by A. K. Dixit. It was at about 3 p. m. when they reached the village Ghansupar Morh, police Station Kotwali, District Fatehpur, a Tempo No. UP 71-A 6098 being driven rashly and negligently collided with that motor cycle resultantly causing serious injuries to the claimant and the other persons. He sustained fracture in the right leg and a report was also lodged at the police station. He spent Rs. 20,000 towards medical treatment. He is doing the business of selling panmasala and is said to be earning rs. 5,000 per month. Because of these injuries his business was substantially affected and even marriage of his sisters could not take place.
He spent Rs. 20,000 towards medical treatment. He is doing the business of selling panmasala and is said to be earning rs. 5,000 per month. Because of these injuries his business was substantially affected and even marriage of his sisters could not take place. ( 5 ) THE trial court on the basis of evidence and materials on record came to irresistible conclusion that the accident had occurred on account of rash and negligent driving of Tempo. Taking into consideration the family status, age and injury suffered, trial court awarded compensation in the tune of Rs. 1,15,648, details of which are given in the judgment. Emphasis has been laid that when the trial court has come to the conclusion that the accident had taken place because of negligence of both tempo and the motor cycle drivers and so the liability for making payment of compensation was to be shared equally by both the insurance companies. Further, nothing has been mentioned in the grounds of revision that compensation amount was also to be apportioned. It may be mentioned that though casual reference with regard to the rash and negligent driving by the motor cycle driver finds place in the judgment but so far as Tempo driver is concerned, there is ample evidence for his rash and negligent driving and the issue was also returned with that finding. That Tempo was insured with United India Insurance Co. Ltd. and so that company is liable to make the payment of compensation amount. Cogent reasons have been given by the trial court. Such finding of fact cannot be interfered with as was held in the cases of (i) Baboo lal v. Dakhini Devi, AIR 1978 All 547 ; (ii) Macline Ayyoppa Naicher v. Seth manghraj Udhavdas, AIR 1969 SC 1344 ; (iii) P. Udayane Devi v. V. V. Rajeshwar prashad Rao, AIR 1975 SC 1357, and (iv)Sheonandan v. State of Bihar, (1987) 1 scc 288. ( 6 ) IN the result this revision is dismissed. Revision dismissed. .