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2021 DIGILAW 70 (GAU)

United India Insurance Co Ltd. v. Lalbiakzuali

2021-02-03

NELSON SAILO

body2021
JUDGMENT Nelson Sailo, J. - Heard Mr. Zochhuana, learned counsel for the appellant and Mr. L.H. Lianhrima, learned senior counsel assisted by Ms. Ruth Lalruatfeli for the respondent No. 1/claimant. None appears for the respondent No. 2 despite service. 2. This is an appeal against the Judgment & Award dated 30.05.2019 passed by the Motor Accident Claims Tribunal (Tribunal), Aizawl in MACT Case No. 69 of 2017 whereby, the respondent No. 1/claimant was awarded a sum of Rs. 5,25,000/- along with 7% interest per annum from the date of filing the claim application as compensation on account of the death of her minor daughter in a motor accident. 3. Facts of the case in brief is that the daughter of the respondent No. 1/claimant, who was aged 3 (three) years was ran over by one XUV 500 vehicle B/R No. MZ-01-K-0411 on 29.08.2017 at about 10:00 a.m. The vehicle was driven by the respondent No. 2 in the present appeal and OP-1 before the Tribunal. As a result, the minor child succumbed to her injuries on the spot. The place of the accident was between Chaltlang Dawrkawn and Tourist Lodge and in fact, just in front of the residence gate of the respondent No. 1/claimant. As a result, the respondent No. 1/claimant filed a claim application before the Tribunal, which was registered as MACT Case No. 69/2017 claiming compensation to the tune of Rs. 9,48,000/- from the Opposite Parties. OP-1 is the driver of the accident vehicle while OP-2 is the instant appellant. The respondent No. 1/claimant in order to substantiate her claim annexed the Birth Certificate of her deceased daughter, Police report, Accident Inspection report, Registration Certificate of the accident vehicle, Insurance Certificate of the accident vehicle, Driving License of the respondent No. 2, the Postmortem Examination report as well as the Death Certificate. These documents were also exhibited by the respondent No. 1/claimant and she examined herself as the sole claimant witness before the Tribunal. 4. The respondent No. 2/OP-1 filed his written statement against the claim application before the Tribunal stating that his vehicle was duly insured with the United India Insurance Company Limited (the appellant herein) and therefore, if there was any liability to pay compensation, such liability would rest upon the Insurance Company. 4. The respondent No. 2/OP-1 filed his written statement against the claim application before the Tribunal stating that his vehicle was duly insured with the United India Insurance Company Limited (the appellant herein) and therefore, if there was any liability to pay compensation, such liability would rest upon the Insurance Company. The Tribunal thereafter, vide its Judgment & Award disposed of the claim application by awarding compensation to the respondent No. 1/claimant in the manner as already stated herein above. 5. Mr. Zochhuana, learned counsel for the appellant submits that the learned Tribunal did not issue any notice to the appellant Insurance Company and therefore, the Insurance Company was not aware about the pendency of the claim application. Having not received any notice, the Insurance Company was not in a position to file any written statement against the claim application. The respondent No. 1/claimant examined herself as the sole claimant witness but since the appellant Insurance Company was not given any notice, the claimant's witness could not be cross examined. He therefore submits that on this ground alone, the impugned Judgment & Award of the Tribunal cannot be sustained and the same may be set aside. 6. Mr. L.H. Lianhrima, learned senior counsel on the other hand submits that the claim was made by the respondent No. 1/claimant under Section 163 A of the Motor Vehicles Act, 1988 and therefore, in view of the recent Notification issued by the Government of India fixing the quantum of compensation, which can be awarded in case of injury or in case of fatal accident, the impugned Judgment & Award may be maintained since the outcome would be the same even if the matter is remanded back or opportunity is given to the appellant Insurance Company. 7. I have heard the submission made by the learned counsels for the rival parties and I have perused the materials available on record including the records requisitioned from the Tribunal. 8. A perusal of the records goes to show that neither a summon nor a notice was issued to the appellant Insurance Company. Order dated 13.11.2017 of the Tribunal indicates that summon was to be served upon the Opposite Parties and that the matter was directed to be fixed again on 14.12.2017 for further proceedings. 8. A perusal of the records goes to show that neither a summon nor a notice was issued to the appellant Insurance Company. Order dated 13.11.2017 of the Tribunal indicates that summon was to be served upon the Opposite Parties and that the matter was directed to be fixed again on 14.12.2017 for further proceedings. The correspondence file of the Tribunal shows that summon was served to the respondent No. 2/OP-1 and the said respondent No. 2/OP-1 had filed his written statement on 09.04.2018 in the form of a communication to the Presiding Officer of the Tribunal stating that his vehicle documents were in order and that the vehicle was duly insured with the United India Insurance Company Limited and therefore, any liability to pay compensation may be borne by the Insurance Company. 9. Be it stated herein that a claim for compensation under Section 163 A of the Motor Vehicles Act, 1988 (MV Act), being a claim under the structured formula, it is limited to a claim for those having a particular income. The burden to be discharged by the claimant is not as strict as in the case of a claim under Section 166 of the MV Act, which is on fault basis. Mere establishing of the fact that there was an accident and there was a casualty in view of the accident and production of the essential documents to that effect would suffice to enable the Tribunal make an award. In recent times, as pointed out by the learned senior counsel, the Central Government has come up with a notification fixing the amount of compensation which can be awarded in case of injury or in case of death. However, the fact remains that the appellant Insurance Company neither was issued notice nor was the summon received by the Company and therefore, it would not be proper for the Tribunal to have proceeded with the claim application in the manner it did. In other words, even in a claim under Section 163 A of the MV Act, the minimum requirement would be to afford an opportunity to the Opposite Party/Parties to appear and present their case or rebut the claim made before the Tribunal. In other words, even in a claim under Section 163 A of the MV Act, the minimum requirement would be to afford an opportunity to the Opposite Party/Parties to appear and present their case or rebut the claim made before the Tribunal. Such opportunity not having been given to the appellant Insurance Company, this Court is of the considered view that the matter should be remanded back to the Tribunal for fresh consideration from the stage of filing of W.S by the OP-2. 10. In view of above, the appeal is disposed of with a direction to the parties to appear before the Tribunal on 18.02.2021 and on which date, the appellant Insurance Company/OP-2 shall file his written statement. Since the respondent No. 2/OP-1 is not represented before this Court, the Tribunal shall issue notice to him by fixing a date for his appearance personally or through his counsel. It is also provided herein that the appellant Insurance Company will be at liberty to cross examine the claimant's witness and also produce their own witness if any, within a time frame to be fixed by the Tribunal. 11. Considering the nature of the claim and the fact that the accident occurred on 29.08.2017, the Tribunal shall dispose of the claim application as expeditiously as possible and preferably within a period of 2 (two) months from the date of appearance of the appellant and the OP-2 on 18.02.2021. 12. It is also made clear that the Tribunal shall consider and decide the claim application on merit without being influenced by any observation made in this order. 13. The appeal stands disposed of. Office to send back the LCR immediately. 14. The appellant is also permitted to withdraw the statutory deposit it had made before the Registry to file the present appeal.