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2016 DIGILAW 3432 (ALL)

ANIL KUMAR v. KEWLA DEVI

2016-10-07

ATTAU RAHMAN MASOODI

body2016
JUDGMENT Hon’ble Attau Rahman Masoodi, J.—Heard learned counsel for the parties. 2. This appeal filed under Section 173 of Motor Vehicles Act, 1988, questions the validity of the judgement passed by Motor Accidents Claims Tribunal in MACP No. 58/2002 allowing a compensation of Rs. 1,70,000/- against the appellant. 3. On the very opening of the arguments by learned counsel for the appellant, the question that crops up is as to who are the necessary parties in a claim petition filed under Section 166 of Motor Vehicles Act, 1988. The claim petitions under Motor Vehicles Act, 1988 are instituted in relation to an accident where the ownership of offending vehicle is traceable to some person upon whom the liability arising ouf of an accident is fixed after adjudication. As per the provisions of Section 168 of the Act the liability can be fixed against the owner of the offending vehicle, insurance company or the driver. In a situation where the ownership of offending vehicle is untraceable, the claim is instituted under Section 161 of Motor Vehicles Act which is classified as a ‘’hit and run’ case. The forum for adjudication of a claim under Section 166 is the Motor Accidents Claim Tribunal whereas hit and run cases are adjudicated under the Solatium Scheme, 1989 promulgated by the Central Government in exercise of the powers conferred under sub-section (1) of Section 163 of the Motor Vehicles Act, 1988 (Act No. 59 of 1988). 4. Insofar as the case at hand is concerned, the proceedings were instituted under Section 166 of the Motor Vehicles Act, 1988 wherein the owner of the vehicle was not impleaded as a respondent. A perusal of the claim petition also reveals that even the number of the offending vehicle was not mentioned in the claim petition. The insurance company in absence of the particulars of offending vehicle being traceable, was also not impleaded as a respondent. 5. The facts reveal that the claim has been instituted merely on the basis of a charge-sheet being submitted by the police authorities against the driver. The charge-sheet submitted against the driver also does not disclose any details of the offending vehicle in terms of its registration number or any other identity. 5. The facts reveal that the claim has been instituted merely on the basis of a charge-sheet being submitted by the police authorities against the driver. The charge-sheet submitted against the driver also does not disclose any details of the offending vehicle in terms of its registration number or any other identity. The claim petition filed before the Tribunal was contested by the claimants on production of the evidence of one eye-witness who is said to be an eye-witness of the accident and it is deposed by the said witness that he had seen the appellant driving the vehicle i.e. motorcycle but the details thereof remained unnoticed/unknown to the witness. The statement made by the only eye-witness shows that he had seen the appellant driving a motorcycle that hit the deceased and the motorcycle belonged to some of the relatives of the appellant. All these facts do not clearly establish the identity of the offending vehicle conclusively. Nevertheless, the claim petition was allowed and an award of Rs. 1,70,000/- has been awarded in favour of the claimants-opposite parties liability whereof has been fastened on the appellant-driver. 6. Learned counsel for the appellant while questioning the validity of the award impugned has argued that the learned Tribunal in the instant case has proceeded against the very norms and procedure prescribed under the Act for the reason that such a proceedings could not be carried out without impleadment of necessary parties. Learned counsel, in order to substantiate his point has drawn attention of this Court to Section 140 as well as Section 163-A of the Act which for ready reference are reproduced below: “140. Liability to pay compensation in certain cases on the principle of no fault.— (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under Section 163A. 163A. Special provisions as to payment of compensation on structured formula basis.— (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.—For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923). Explanation.—For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 7. A plain reading of the aforesaid provisions sufficiently reveals that the owner of the offending vehicle in a claim of motor accident is the necessary party and in his absence, such a claim cannot be tried in summary proceedings. The only exception to this rule is a ‘’hit and run’ case filed under Section 161 of the Act which, for ready reference, is reproduced as under: “161. Special provisions as to compensation in case of hit and run motor accident.— (1) For the purposes of this section, Section 162 and Section 163— (a) “grievous hurt” shall have the same meaning as in the Indian Penal Code, 1860 (45 of 1860); (b) “hit and run motor accident” means an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose; (c) “scheme” means the scheme framed under Section 163. (2) Notwithstanding anything contained in the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) or any other law for the time being in force or any instrument having the force of law, the General Insurance Corporation of India formed under Section 9 of the said Act and the insurance companies for the time being carrying on general insurance business in India shall provide for paying in accordance with the provisions of this Act and the scheme, compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents. (3) Subject to the provisions of this Act and the scheme, there shall be paid as compensation— (a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of twenty-five thousand rupees; (b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of twelve thousand and five hundred rupees. (4) The provisions of sub-section (1) of Section 166 shall apply for the purpose of making applications for compensation under this section as they apply for the purpose of making applications for compensation referred to in that sub-section.” 8. Learned counsel for opposite parties, on being confronted with this position of law, has not been able to satisfactorily explain the liability fastened on the appellant. Learned counsel for the respondents, however, placing reliance upon a judgement in Ram Ajore Misra v. Union of India and others, 2016 (34) LCD 2146, has argued that the case at hand is covered under the judgement. 9. On a perusal of the judgement placed reliance upon, this Court finds that the case law taken aid of by the opposite parties is of no help. The decision cited before this Court has been rendered in a different set of facts which are distinguishable from the present case. In the present case, there exists a situation where for want of impleadment of necessary parties, the matter cannot be relegated back to the Tribunal for the reason that neither the identity of offending vehicle nor the owner thereof are traceable. A question would crop up as to what remedy is left open to the opposite parties where personal injury has been caused but the vehicle as well as the owner are untraceable. Such a claim can either be filed under Section 161 of the Motor Vehicles Act, 1988 treating it to be a ‘’hit and run’ case or the opposite party has a civil remedy open to him under law which can be invoked before the Court of competent civil jurisdiction. 10. For the reasons recorded above the judgement passed by the Tribunal cannot be sustained and the same being non-maintainable in the eye of law, has wrongly been decreed against the appellant. Accordingly the impugned judgement is hereby set aside. 11. The appeal consequently stands allowed. 12. 10. For the reasons recorded above the judgement passed by the Tribunal cannot be sustained and the same being non-maintainable in the eye of law, has wrongly been decreed against the appellant. Accordingly the impugned judgement is hereby set aside. 11. The appeal consequently stands allowed. 12. The statutory deposit made before this Court is permitted to be withdrawn by the appellant on fulfilling the necessary formalities. In case the proceedings under Section 161 of the Motor Vehicles Act are invoked, it shall be open to the opposite party to seek condonation of delay on the ground of pendency of the present proceedings which in the opinion of this Court had been taken up due to an erroneous advice.