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2009 DIGILAW 496 (BOM)

RANGNATH TRIMBAK SONAWANE v. BABAN GANPAT MHASKE

2009-04-13

S.B.DESHMUKH

body2009
JUDGMENT :- Heard learned counsel for the respective parties. 2. By the order passed on 5-5-2008, this Court (Coram: Abhay S. Oka, J.) had issued notice to the respondents returnable on 25-7-2008, indicating that an endeavour will be made to decide the appeal at the stage of admission. Record was called for. It has been received. 3. This appeal is filed by the claimant, who has filed M.A.C.P. No. 160 of 1995 in the Court of Motor Accident Claims Tribunal, Aurangabad. The appellant has alleged that he was in service in a company as a Security Guard and met with an accident on 20-5-1994. He has lodged an application for compensation under section 166 of the Motor Vehicles Act, 1988 ("the said Act"). This application is in view of the format provided under section 166 of the said Act. The learned trial Court issued summons to the respondents/opponents, namely; driver, owner and insurer of the vehicle. It is alleged by the claimant that at about 4.30 pm to 5.00 pm on 20-5-1994, he was travelling in a goods truck bearing Registration No. MH-20-B-3l10, driven by respondent No.1 and owned by respondent No.2. It was insured with respondent No.3. There were other persons also travelling along with the appellant. According to the appellant it was a marriage party. While travelling from village Pimpalgaon Deo to Borwadi, Taluka and District Aurangabad, this vehicle, according to the claimant, met with an accident within the limits of Fulambri Police Station, on the date and time mentioned by the claimant in the petition. According to the claimant, accident took place due to negligent and rash driving of respondent No.1. The goods vehicle turned turtle and met with the accident. Claimant and others suffered injuries. Claimant and others were rushed to Government Hospital, Aurangabad. Allegedly, he has suffered injuries. Initially, he was hospitalised for some days. Claimant has sustained injuries and subsequently came to be terminated by his employer. According to claimant, there is no registration of the accident with the police station concerned, within whose jurisdiction, the alleged accident took place. The claimant, therefore, lodged a private complaint in the Court of learned Judicial Magistrate (F.C.) for the alleged offence. Certified copy is produced in the Court. 4. The learned Judge,. after issuance of summons to respondents, considered the written statement filed by the parties and settled issues. The issues settled are three in numbers. The claimant, therefore, lodged a private complaint in the Court of learned Judicial Magistrate (F.C.) for the alleged offence. Certified copy is produced in the Court. 4. The learned Judge,. after issuance of summons to respondents, considered the written statement filed by the parties and settled issues. The issues settled are three in numbers. The Tribunal dismissed the claim petition on 14-22007. According to the Tribunal, except the certified copy of the private complaint, which the claimant himself has filed in the Court and that too after six months of the alleged accident, claimant has no other documents such as first information report, police station diary etc. to show that the accident occurred due to rash and negligent driving of the motor vehicle. The learned Judge referred to Rule 254(5) of the Motor Vehicles Rules and dismissed the claim petition. This judgment and award is challenged in this appeal. 5. Shri Kulkarni, learned Advocate for the appellant seeks remand of the case. 6. Brief reference to the provisions of the said Act is necessary. Chapter XII is "Claims Tribunals." Under section 165 of the said Act, power has been vested with the State Government to constitute one or more Motor Accidents Claims Tribunals for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Explanation provides, for the removal of doubts, that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 and section 163-A of the said Act. Under section 166 of the said Act, the application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 has been provided for. Under section 167, an option, either to resort to the provisions of the said Act or Workmen's Compensation Act, 1923 has been made available to the claimants or the person entitled to compensation. Section 168 of the said Act provides for passing of the award by the Tribunal. Procedure of the claim Tribunal is an important aspect of the matter. Under section 167, an option, either to resort to the provisions of the said Act or Workmen's Compensation Act, 1923 has been made available to the claimants or the person entitled to compensation. Section 168 of the said Act provides for passing of the award by the Tribunal. Procedure of the claim Tribunal is an important aspect of the matter. Such procedure and powers of the Claims Tribunal have been provided under section 169 of the said Act. Under section 169(2) powers of the Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects has been provided. In substance, section 169(2) provides that the Claims Tribunal shall be deemed to be the Civil Court for all the purposes of section 195 of Criminal Procedure Code. Appeals have been made available to the persons feeling aggrieved by the award of the Claims Tribunal under section 173 of the Act. Such appeals can be entertained by the High Court. Some conditions have . been laid down for entertaining such appeals by the High Court under section 173(1) and (2) of the said Act. Apart from the provisions of the Act, Central Government has made various Rules in its Rule making powers. Central Motor Vehicles Rules, 1989 ("Central Rules") are one of them. It is also important to note, at this stage itself, that the State of Maharashtra has also framed Motor Vehicles Rules, 1989 ("State Rules"). 7. The learned Judge while dismissing the claim petition has referred Rule 254 of Maharashtra Rules. We are concerned with Rule 254(5), which is reproduced hereinbelow :- "254. Application for compensation arising out of an accident. (1 )....... ................. (2).. ...................... (3).. ...................... (4)....................... . (5). There shall be appended to every such application, the following documents, namely :--:(i) injury certificate or in case of death, post-mortem report, or Death Certificate; (ii) True copy of First Information Report or Police Station Diary Entry or Traffic Accident duly certified by the Police Officer or the Police Station concerned, in respect of the accident, and (iii) Certified copy of the Form Com. "AA" of the First Schedule mentioned in sub-rule (8) of this rule..................." Sub-rule (5), thus, obligates the claimant that every application for compensation shall be appended the documents, which are mentioned in clauses (i) to (iii) thereof. "AA" of the First Schedule mentioned in sub-rule (8) of this rule..................." Sub-rule (5), thus, obligates the claimant that every application for compensation shall be appended the documents, which are mentioned in clauses (i) to (iii) thereof. 8. Having considered the scheme of the Act of 1988, powers and constitution of the Claims Tribunal and provision of the appeal, I have also considered Rule 254 referred to by the trial Court. The trial Court dismissed the claim petition on the ground that true copy of the first information report or police station diary or entry of traffic accident report, duly served by the Police Officer of the Police Station concerned was not appended to the claim petition. 9. From the record, learned counsel for the appellant points out the copy of the original application filed by the claimant in M.A.C.P. The claimant, in subparagraph (c) of paragraph No. 22 of the application has made a statement that after five months claimant had been to the concerned police station for obtaining police papers of the accident for filing the petition but he came to know that the accident was not registered. Further statement is made in paragraph No. 22(d) that the claimant has filed a complaint before the learned Judicial Magistrate (F.C.), Aurangabad and after due enquiry the complaint came to be registered being RCC No. 1284 of 1994. Process was issued. A statement is made in the same paragraph that copy of the complaint is annexed. In clause (e) of paragraph No. 22, further statement is made that after the accident appellant/claimant was terminated by the employer on account of disability incurred by him due to accidental injury. It is also the contention of the claimant that he has to maintain one son and three daughters. 10. Exhibit 44 shows the written statement filed by the respondent No.2. In paragraph No. 3 of this written statement, involvement in the accident of the goods truck allegedly driven by Baban is denied. Filing of the complaint by claimant before the learned Judicial Magistrate F.C. Aurangabad is also denied. In paragraph No. 13, respondent No.2 in the trial Court, Gopichand has pleaded that there is no involvement of respondents in the alleged offences. At the close of paragraph No. 13, a statement is made that the goods truck owned by respondent No.2 was insured with respondent No.3 insurance company. In paragraph No. 13, respondent No.2 in the trial Court, Gopichand has pleaded that there is no involvement of respondents in the alleged offences. At the close of paragraph No. 13, a statement is made that the goods truck owned by respondent No.2 was insured with respondent No.3 insurance company. With this, a prayer was made for dismissal of the claim petition. Exhibit 52 is the purshis filed in the trial Court on behalf of respondents adopting the pleadings of the owner of the vehicle i.e. Respondent No.2. 11. Written Statement of respondent No.3 insurance company is on record. Insurance company has also denied the material assertions made by the complainant regarding the alleged accident, involvement• of the goods truck, alleged injuries suffered, loss of income etc. In paragraph No. 25, it has been pleaded that no risk of passengers was accepted by the insurance company while issuing the policy if any. In the present case, the marriage party was travelling in the truck and hence the insurance company is not liable to pay any compensation to the claimant. In paragraph No. 26, it has been pleaded that driver of the vehicle was not holding the effective driving license at the time of alleged accident. 12. Initially, the learned trial Court had framed three issues at Exhibit 20. Issue No. 1 was rash and negligent driving of respondent No. 1. Burden was placed on the appellant. Issue No. 2 was entitlement of the claimant for compensation out of accident and liability of respective respondents. 13. Having considered the pleadings and submissions of learned counsel Shri Kulkarni, in my view, following are the points for determination in this appeal with my findings thereon. (1) Whether the case for remand is established ? .. Yes. (2) What order? ..As per final order. REASONS 14. Exhibit 52 is the purshis filed by respondent No.1, adopting written statement filed by respondent No.2. Exhibit 22 is the oral evidence of Ranganath. Exhibit 23 is the certified copy of complaint (private complaint) No. 1284 of 1994. It appears that the said complaint is filed by the claimant against one Shri Baban, allegedly truck driver employed by Gopichand. Therein alleged place of offence is mentioned. Alleged offences under sections of Indian Penal Code have been mentioned and name of the Police Station is mentioned as Fulambri Police Station. It appears that the said complaint is filed by the claimant against one Shri Baban, allegedly truck driver employed by Gopichand. Therein alleged place of offence is mentioned. Alleged offences under sections of Indian Penal Code have been mentioned and name of the Police Station is mentioned as Fulambri Police Station. This certified copy of the complaint, placed on record by the claimant, shows that the learned Judicial Magistrate has passed an order on 10-7-1995. The learned Judge has recorded his satisfaction that the applicant makes out an offence under sections 279, 337 and 338 of the Indian Penal Code. He, therefore, issued summons to the accused under sections 279,339 and 338 of the Indian Penal Code. 15. As noticed in' the foregoing paragraphs, claim petition has been dismissed by the trial Court only on the ground of non-compliance of Rule 254 of the State Rules. Involvement in the accident is also denied by respondents. The question which requires to be considered is the compliance of Rule 254 of Maharashtra Rules. Act of 1988 is, indisputably, is a beneficial piece of legislation. Scheme of Act of 1988 and more specifically section 175 bars the jurisdiction of the Civil Court. It has been provided under section 175 that wherein the Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area and no injunction in respect of any action or ought to be taken by the Claims Tribunal in respect of the claims for compensation shall be granted by the Civil Court. Sections 165 to 173 and 175 will have to be read in consonance while considering the question 'of payment of compensation for bodily injury and/or death allegedly occurred on account of the vehicular accident. Jurisdiction of the ordinary Civil Court has been ousted by section 175 in case of constitution of the Claims Tribunal for any area. Power of the Civil Court has been conferred upon the Claims Tribunal under section 169 of the Act of 1988. All provisions have been made applicable to the Claims Tribunal. The Claims Tribunal have been elevated to the status of the Civil Court enjoying the powers and procedure provided under the Code of Civil Procedure. Power of the Civil Court has been conferred upon the Claims Tribunal under section 169 of the Act of 1988. All provisions have been made applicable to the Claims Tribunal. The Claims Tribunal have been elevated to the status of the Civil Court enjoying the powers and procedure provided under the Code of Civil Procedure. The Claims Tribunals are saddled with the duty to determine just compensation, under section 168(1). Powers of the appeal have been vested with the High Court with some conditions provided under section 173 of the Act of 1988. In substance, the High Court is vested with the powers of the Appellate Court in relation to judgment and award passed by the Claims Tribunal. Rules making powers have been conferred upon the State Government under section 176 for the purpose of carrying into effect the provisions of Sections 165 to 174 and in particular, such Rules made provide for all or any of the matters, which are enumerated in sub-clauses (a) to (3) of section 176 of the said Act. While exercising Rule making powers, the State Government has Tamed Rules of 1989. These Rules are in aid to beneficiaries i.e. claimants, in case of personal injuries and legal heirs or successors in case of death in vehicular accident. In a given case, if the offence under the provisions of the said Act or Indian Penal Code in relation to vehicular accident is not registered with the police station of the area concerned, the question is whether the beneficiary i.e. claimant n case of personal injury or body injury and legal heirs/representatives of leceased persons in a vehicular accident is made to suffer and/or prevented from lodging the claim petition under section 165 of the Act. In other words, in such circumstances, whether the powers of the Claims Tribunal constituted under Section 165 of the Act have been taken away and such sufferers are thrown at the wind? the answer will be in negative. The Claims Tribunals are established under section 165 and are vested with the power of the Civil Court as noticed in foregoing paragraphs. the answer will be in negative. The Claims Tribunals are established under section 165 and are vested with the power of the Civil Court as noticed in foregoing paragraphs. They are laving every power to entertain and decide the issues as to whether the alleged accident suffered by the claimant has taken place, based on the evidence or material brought before them and thereafter, who is responsible for such accident and/or rash and negligent driving of the offending vehicle. owners liability of such offending vehicle, if such vehicle is insured with the insurance company and liability of such injured. In the case on hand, the claimant/appellant who llegedly suffered the injuries on account of vehicle accident, has made a statement in the application itself that after about five months, he went to the police station concerned to obtain certified copies in view of Rule 254(5). However, he was informed that such an offence, either under the provisions of he Act of 1988 or under Indian Penal Code is not registered pertaining to the Ileged vehicular accident. The claimant, thereafter, in view of the Code of Criminal Procedure, ultimately, approached the learned Judicial Magistrate F.C. Aurangabad and Criminal Case (private complaint) referred to above, has been filed in the Court. The learned Judicial Magistrate, while exercising the jurisdiction and who was seized with the complaint at the relevant time, applying his mind, has passed an order initially and called for the report under section 202 of Criminal Procedure Code and on satisfaction of the complaint and verification and report, has issued the process. The learned Claims Tribunal was aided with this certified copy of the private complaint filed by the appellant/claimant. Despite this fact, the learned Tribunal referred to Rule 254 and on this sole ground, ignoring the oral evidence of the claimant, dismissed the claim, which has multiplied the sufferance of the claimant to a large extent. Rules framed by the State are not for cornering the beneficiaries i.e. claimants in the case of personal injuries nor the legal heirs/representatives or successors of the deceased person. They have to be read in view of the object of the constitution of the Claims Tribunal and provisions of the Act of 1988. Rules are handmade of justice and have to be considered and interpreted for advancing the cause of justice, rather to defeat the same. They have to be read in view of the object of the constitution of the Claims Tribunal and provisions of the Act of 1988. Rules are handmade of justice and have to be considered and interpreted for advancing the cause of justice, rather to defeat the same. Even otherwise, in my view, Rule No. 254(5) is directory and not mandatory. The view taken by the learned Claims Tribunal is perverse and judgment and award needs to be quashed and set aside. 16. Remand of the case is sought by Shri Kulkarni, learned Advocate for the appellant. Section 107 of Civil Procedure Code empowers the Appellate Court to determine the case finally, to remand the case and to frame issues and refer them for trial and to take additional evidence or require such evidence to be taken. It is true that the power under section 107 of Civil Procedure Code is a general provision relating to appeals. With this, we have to consider Order XLI Rule 23 of Civil Procedure Code. Here the remand is contemplated in case of disposal of the suit upon a preliminary point. However, I am reversing the decree in appeal being the Appellate Court and in my view, the case needs to be remanded for the reason that the Claims Tribunal has dismissed the claim petition only on the ground of non-compliance of Rule 254 of State Rules and without appreciating the oral evidence of the claimant/appellant. Even though, Order XLI, Rule 23 is not applicable in the facts and circumstances of the case, the facts of the present case are governed by Rule 23-A of Order XLI. In my view, though the issues were settled by the trial Court and claim has been dismissed after settling the issues, retrial of the case in hand is necessary for the reasons, which I have recorded in the foregoing paragraphs. In this order, I have not expressed any opinion on any of the issues i.e. liability of compensation either of respondents 1 to 3 jointly, severally or otherwise. All these issues are to be considered by the trial Court after remand of the matter. Involvement of the vehicle and alleged accident also to be determined on the basis of evidence by the trial Court. On that issues also I have not recorded and/or expressed any opinion. All these issues are to be considered by the trial Court after remand of the matter. Involvement of the vehicle and alleged accident also to be determined on the basis of evidence by the trial Court. On that issues also I have not recorded and/or expressed any opinion. In view of Order XLI, Rule 26A, I have to fix the date of appearance of the parties in the trial Court. 17. Shri Upadhye, learned Advocate for insurance company submits that the insurance company is not liable and responsible in the case on hand. I have observed in foregoing paragraphs that I am not recording any opinion on this point. I am only remanding the case to the trial Court for decision according to law, after giving opportunity of leading evidence, if any, to the parties. 18. In this view of the matter, this appeal is partly allowed. The order impugned in this appeal is quashed and set aside. The case is remanded to the learned Tribunal for decision, according to the provisions of law. The learned Tribunal shall afford opportunity of leading evidence to the parties and decide the case, after remand, in accordance with the provisions of law and evidence brought on record. The parties shall appear before the trial Court on 30-4-2009. The trial Court shall decide the claim within the period of three months from the date of appearance of the parties, in view of the fact that the accident, allegedly, had taken place on 20-5-1994. No order as to costs. Appeal partly allowed.