Himachal Pradesh High Court
Oriental Insurance Co. Ltd vs Shri Kishan Chand & Others on 1 May, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 186 of 2008
Decided on:01.05.2015
.
Oriental Insurance Co. Ltd. ...Appellant.
Versus
Shri Kishan Chand & others ...Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
For the appellant: Mr. Deepak Bhasin, Advocate.
For the respondents: Ms. Archana Dutt, Advocate, for
respondent No. 1.
Mr. Abhyendra Gupta, Advocate, vice Mr.
Nimish Gupta, Advocate, for respondents
No. 2 and 4.
Name of respondent No. 3 stands already
deleted.
Mansoor Ahmad Mir, Chief Justice (Oral)
Subject matter of this appeal is award, dated 29.02.2008, made by the Motor Accident Claims Tribunal, Chamba Division, Chamba, (H.P.) (for short "the Tribunal") in MAC Petition No. 19 of 2006, titled as Sh. Kishan Chand versus The Oriental Insurance Company Ltd. and others, whereby compensation to the ::: Downloaded on - 15/04/2017 18:05:25 :::HCHP -: 2 :- tune of ` 1,78,770/- with interest @ 9% per annum from the date of petition till realization came to be awarded in favour of the .
claimant-injured with a direction to the appellant-insurer to satisfy the award (for short "the impugned award").
2. The claimant-injured, the driver and the owner-
insured have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.
3. Appellant-insurer has questioned the impugned award on the ground that the Tribunal has fallen in an error in saddling the insurer with liability.
4. Thus, the only questioned to be determined in this appeal is - whether the appellant-insurer came to be rightly saddled with liability or otherwise?
5. Learned counsel for the appellant-insurer argued that the claim petition filed by the claimant-injured was not maintainable for the following reasons:
(1) That the claimant-injured had filed a claim petition, which came to be dismissed in default, constraining the claimant-injured filed an application under Order 9 Rule 4 of the Code of Civil Procedure (for short "CPC") for setting ::: Downloaded on - 15/04/2017 18:05:25 :::HCHP -: 3 :- aside the dismissal, which was also withdrawn by the claimant-injured;
.
(2) That during the pendency of the claim petition, the owner-insured has died, thus, the appeal has abated in terms of the mandate of Order 22 CPC; and (3) That the claimant-injured was a gratuitous passenger.
6. The arguments of the learned counsel for the appellant-insurer, though attractive, are devoid of any force for the following reasons:
7. Granting of compensation is a social one and it is for the welfare of the victims of the vehicular accidents. The purpose of granting compensation in terms of the mandate of Chapters XI and XII of the Motor Vehicles Act, 1988 (for short "the MV Act") is for the welfare of the claimants, who have become victims of vehicular accident, in order to save them from social evils, like starvation etc.
8. The aim and object of awarding compensation is just to ameliorate the sufferings of the claimants and the Courts/Tribunals have to decide the matter as early as possible, that too, summarily in terms of the mandate of Chapter XII of the ::: Downloaded on - 15/04/2017 18:05:25 :::HCHP -: 4 :- Motor Vehicles Act, 1988 (hereinafter referred to as "the MV Act").
9. The Apex Court and other High Courts have held that .
the Courts should not succumb to the procedural wrangles and tangles, hypertechnicalities and mystic maybes and that should not be a ground to dismiss the claim petition and to defeat the rights of the claimants.
10. The same principle has been laid down by the Apex Court in the cases titled as N.K.V. Bros. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354; Sohan Lal Passi versus P. Sesh Reddy and others, reported in AIR 1996 Supreme Court 2627; and Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, reported in (2013) 10 Supreme Court Cases 646, and by this Court in FAO No. 339 & 340 of 2008, titled as NIC versus Parwati & others; FAO No. 172 of 2006, titled as Oriental Insurance Company versus Shakuntla Devi & others; FAO No. 396 of 2012, titled as Asha & others versus Moti Ram & others and FAO No. 4248 of 2013, titled as Magni Devi & others versus Suneel Kumar & others, decided on 13.03.2015.
11. It is beaten law of land that limitation cannot be a ground to defeat the claim petitions. The MV Act has gone through ::: Downloaded on - 15/04/2017 18:05:25 :::HCHP -: 5 :- a sea change in the year 1994 and the provision dealing with limitation was deleted and the claim petitions can be filed at any .
point of time. Thus, limitation cannot come in the way of the claimants for filing claim petitions.
12. The next argument of the learned counsel for the appellant-insurer that the claim petition was not maintainable because the first claim petition came to be dismissed in default, was not restored, is not tenable for the reason that in terms of Order IX Rule 4 CPC, a fresh suit can be filed, provided it is not hit by limitation.
13. It is apt to reproduce the relevant portion of the dismissal order, dated 18.02.2005, made by the Tribunal, Exhibit RJ, herein:
"Present: None.
Case called thrice during the day, but none appeared for the parties. Hence, the petition is dismissed in default. It be consigned to the record room after due completion."
The first claim petition was dismissed in default in absence of all the parties, thus, fresh claim petition was maintainable.
14. Order of dismissal in default is not a decree in terms of the mandate of Section 2 (2) (b) of CPC. It is apt to reproduce Section 2 (2) CPC herein:
::: Downloaded on - 15/04/2017 18:05:25 :::HCHP -: 6 :-"2. ..................
(2)"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights .
of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or r to
(b) any order of dismissal for default.
Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and party final."
Thus, it can be safely said that doctrine of res judicata is not applicable.
15. The claim petition is to be taken to its logical end without any delay, that too, summarily. The cumbersome procedure is not to be followed in view of the mandate of Sections 169 and 176 (b) of the MV Act.
16. Sections 169 and 176 (b) of the MV Act read as under:
"169. Procedure and powers of Claims Tribunals :- (1) In holding any inquiry under section 168 , the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking ::: Downloaded on - 15/04/2017 18:05:25 :::HCHP -: 7 :- evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material object and for such other purposes as .
may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal?may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the r inquiry.
.........................
176. Power of State Government to make rules :-
A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:-
(a) ................
(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;
................................"
17. The States have framed Rules in terms of Sections 169 and 176 (b) of the MV Act and some of the provisions of CPC have been made applicable. The State of Himachal Pradesh has also framed the Himachal Pradesh Motor Vehicle Rules, 1999 (hereinafter referred to as "the Rules").
::: Downloaded on - 15/04/2017 18:05:25 :::HCHP -: 8 :-18. It is apt to reproduce Rule 232 of the Rules herein:
"232. The Code of Civil Procedure to apply in .
certain cases:-
The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII; Rule 3 to 10; Order XVI, Rules 2 to 21; Order XVII; Order XXI and Order XXIII, Rules 1 to 3."
19. This Rule provides which of the provisions of the CPC are applicable. Order XXII of the CPC deals with abatement and the provisions of said Order have not been made applicable. Only on this count, the argument of the learned counsel for the appellant-
insurer, that the claim petition was abated, merits to be turned down.
20. These provisions of law provide that all the provisions of CPC are not applicable, thus, the claim petitions cannot be dismissed in view of the procedural wrangles and tangles, as stated hereinabove.
21. The next argument of the learned counsel for the appellant-insurer that the claimant-injured was travelling in the offending vehicle as a gratuitous passenger, is also devoid of any force because the insurance contract, Exhibit RA, covers the risk of ::: Downloaded on - 15/04/2017 18:05:25 :::HCHP -: 9 :- eight persons, i.e. driver, conduct, owner and five passengers. It is apt to reproduce the relevant portion of Exhibit RA herein:
.
Details of the Vehicle Insured
Number of Vehicle HP 44 0140 Licensed Carrying Capacity Cubic
Capacity
Make & year of Manufacture Gross Vehicle Passenger
Weight in kg. Carrying Horse
Mahindra 1998 Capacity Power
Engine No. 2270 kgs 2+5+1 = 8 62 HP
Chassis No.
22.
While going through the insurance contract, one comes to an inescapable conclusion that the risk of five passengers is covered.
23. Viewed thus, it can be safely said that the claimant-
injured was not a gratuitous passenger. The appellant-insurer has to plead and prove that the owner-insured has committed any willful breach in terms of the insurance contract, has failed to prove the said issue.
24. Having said so, the Tribunal has not committed any error in saddling the appellant-insurer with liability.
25. It is also apt to record herein that the appellant-
insurer has not led any evidence, thus, has failed to discharge the onus to prove issues No. 3 to 9.
::: Downloaded on - 15/04/2017 18:05:25 :::HCHP -: 10 :-26. Accordingly, the appeal is dismissed and the impugned award is upheld, as indicated hereinabove.
.
27. Registry is directed to release the awarded amount in favour of the claimant-injured strictly as per the terms and conditions contained in the impugned award after proper verification.
28. Send down the record after placing copy of the judgment on Tribunal's file.
r (Mansoor Ahmad Mir)
Chief Justice
May 1, 2015
( rajni )
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