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2021 DIGILAW 151 (HP)

National Insurance Company Limited v. Kanta Devi

2021-03-16

JYOTSNA REWAL DUA

body2021
JUDGMENT : Jyotsna Rewal Dua, J. By way of instant petition filed under Article 227 of the Constitution of India, the petitioner-Insurance Company has assailed the award dated 30.03.2011, passed by learned Motor Accident Claims Tribunal-II, Solan, District Solan H.P. 2. In terms of the award, the claimants i.e. widow and two minor sons of deceased Rajesh Kumar were held entitled for compensation amount of Rs.17 lacs alongwith interest. Rajesh Kumar had died in an accident, which took place on 24.6.2009. He was riding a motor cycle bearing No. HP-12C-1795, when he collided with a bus bearing No. HP-12C-7322, driven by respondent No.4/Bhag Singh. FIR No.105/2009 in this regard was registered on 24.06.2009, under Sections 279, 337 and 304-A of the Indian Penal Code. During the proceedings before learned Motor Accident Claims Tribunal-II, Solan, District Solan, H.P., it was proved that accident had occurred on account of rash and negligent driving of the bus driven by respondent No.4/Bhag Singh. PW-3 Kewal Singh stated that the accident occurred in his presence and that Respondent No.4/Bhag Singh while over-taking another bus, collided with the motor cycle driven by the deceased Rajesh Kumar. Testimony of PW- 3 was in tune with documentary evidence i.e. FIR Ext.PW-1/A and post-mortem report Ext. PW-2/A. Widow of deceased Smt. Kanta Devi appeared in the witness-box as PW-4. She stated that her husband was running a ‘Kariyana’ store in industrial area Makhnumajra and was also selling milk. His total income was approximately Rs.20,000/- per month. Age of the deceased Rajesh Kumar at the time of accident was asserted to be 38 years. Learned Tribunal assessed the income of deceased Rajesh Kumar as Rs.15,000/- per month and accordingly held the widow and two minor sons of the deceased Rajesh Kumar entitled to compensation amount of Rs. 17 lacs. 3. Heard learned counsel for the parties and gone though the records. 4(i) The relief clause of instant petition runs as under:- “It is, therefore, respectfully prayed that this petition may very kindly be allowed and the impugned award dated 30.03.2011 as contained in Annexure P-1, passed by the learned Motor Accident Claims Tribunal- II, Solan, District Solan, in M.A.C. Petition No.23-NL/2 of 2009, may very kindly be quashed and set aside thereby dismissing the claim petition of respondents No.1 to 3, in the interest of justice.” 4(ii). Instead of filing appeal under Section 173 of the Motor Vehicles Act, the petitioner has invoked the supervisory jurisdiction under Article 227 of the Constitution of India in laying challenge to the award passed by MACT. In support of his contention that such a recourse was available to the petitioner, learned counsel for the petitioner has placed reliance upon a judgment dated 16.11.2010 passed in CMPMO No.500/2009, titled National Insurance Company Ltd. Vs. Sh. Lachhi Ram and others. 4(iii). The facts of the instant case are distinguishable from the facts noticed in Lachhi’ Ram’s Case (Supra). Here, admittedly an application under Section 170 of the Motor Vehicles Act was moved by the petitioner-Insurance Company, which was rejected by the learned Tribunal vide order dated 12.08.2010. This order was not challenged by the Insurance Company at any point of time. Even in this petition, no relief has been claimed in respect of the order dismissing the application of the Insurance Company moved under Section 170 of the Act. The order has attained finality. Under such circumstances, the instant petition under Article 227 of the Constitution of India will not be maintainable against the compensation award passed by learned Motor Accident Claims Tribunal under Section 166 of the Act. It was for the petitioner to assail the award on the grounds available to it in accordance with law under Section 173 of the Motor Vehicles Act. Since instant petition has been held to be not maintainable in facts of the case, therefore, the merits of the award are not being examined. Consequently, the petition is dismissed as not maintainable. Pending miscellaneous application(s), if any, shall also stand disposed of.