Calcutta High Court
Smt. Lakshmi Biswas vs Calcutta Tramways Co. Ltd. on 20 March, 2006
Equivalent citations: AIR2007CAL172, AIR 2007 CALCUTTA 172, 2007 (4) ALL LJ NOC 717, 2007 (5) ABR (NOC) 750 (CAL), 2007 (4) AKAR (NOC) 543 (CAL), (2007) 1 TAC 535, (2006) 47 ALLINDCAS 750 (CAL)
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
ORDER Pratap Kumar Ray, J.
1. Heard the learned Advocates appearing for the parties.
2. In the instant case the petitioner, the applicant of a claim case arose out of motor accident whereby her son faced death has assailed the order dated 10th March, 2005 passed by the learned Additional District & Sessions Judge, Fast Track Court, 6th Court at Alipore having determination to adjudicate the Motor Accident Claim Case sitting as a Tribunal in MAC Case No. 50 of 2004 whereby and whereunder the application praying for withdrawal of the claim case with liberty to sue afresh was rejected save and except the order allowing to withdraw the suit. This order is under challenge herein on the ground that there is a total perversity of the findings of the learned Court below in view of the fact that when the Court himself has considered that there was a defect in quoting the bus number of the offending vehicle owned by the opposite party, the Calcutta Tramways Company, the learned Court below ought to have allowed such application.
3. This application has been opposed by the opposite party, the said Tramways Company by contending, inter alia, that in the application filed by the petitioner in the Court below there was no whisper about the defect for which leave was sought for to file afresh on withdrawal of the claim application. It has been further contended referring the Order 23, Rule 1 Sub-rule (3) of the Code of Civil Procedure that the learned Court below by a reasoned finding reached to the conclusion that there was no formal defect and no sufficient ground to grant such leave to the petitioner to file a fresh suit.
4. The learned Advocate for the opposite party further has submitted that once the amendment application praying amendment of the number of offending vehicle was not pressed, the petitioner had no right to withdraw the suit with a liberty to file afresh. In support of such proposition a judgment of Mysore High Court referred to passed in the case V. Narayanappa v. Narayanappa reported in AIR 1971 Mysore 334 has been cited. The learned Advocate for the opposite party further relied upon a judgment passed in the case Rani Harshamukhi Dassi v. Sarat Chandra Ata reported in (1927) 32 CWN 1244 to contend that until and unless there is a finding of the Court below that there is a formal defect no leave to file afresh could be granted.
5. The learned Advocate for the petitioner submits that the Motor Vehicles Act and the Rules thereof providing for the relief in the nature of compensation in the event of death by motor accident or physical disablement due to such accident, are within the social welfare domain and the regours of technicalities have no applicability in such type of proceeding. The learned Advocate has submitted that nicety of a civil or criminal case has no scope in adjudicating the claim cases under Motor Vehicles Act. Reliance has been placed to the judgment passed in the case Renubala Das v. Bani Chakraborty Reported in 1990 (1) Transport & Accident Cases 151. The learned Advocate for the petitioner also has relied upon a judgment of the Apex Court passed in the case Sohanlal Passi v. P. Sesh Reddy to contend that right to claim compensation should not be defeated on technical ground. It has been further contended that in dealing with the claim case arising out of motor accident the Court should take a liberal approach by referring the judgment State of Maharashtra v. Kanchanmala Bijay Singh Shirke .
6. Having regard to the contentions of the learned Advocates appearing in the matter, the issue now to be decided.
7. From the impugned order it appears that the learned Court below considered the aspect that when the claim petition was filed, the offending vehicle's registration number was mentioned as WB-04/9410 whereas in the charge-sheet as filed by the police with reference to the said FIR culminated to Tiljala Police Station Case No. 25 dated 25th January, 2004, the registration number of the vehicle has been mentioned as WB-04/ 9419. The learned Court below further held that it was the case of the Calcutta Tramways Company that the Vehicle No. WB-04/ 9410 was out of order for, long time for its defects in engine and it was a condemned vehicle and as such there was no scope of any accident by the said vehicle as alleged. It is true that the petitioner moved an amendment application as soon as the charge-sheet of the criminal proceeding came to the notice whereby the number of offending vehicle was mentioned as W.B.-04/9419, but did not place the amendment application and thereafter prayed for withdrawal of the claim petition to file afresh with the leave of the Court. It is also true that there was no mentioning of formal defect in the application itself filed by the petitioner, but from the impugned order it appears that the Court below considered the issue which was the defect and identified the same. The relevant portion of the impugned order reads to this effect:
From the evidence on record it reveals that the claim has been projected or the offending vehicle being No. WB-04/9410, a CTC Bus. It is the claimant, who has produced the FIR and charge-sheet, marked as Ex. 1 and Ex. 2 respectively in support of the claim case. In the FIR the number of the offending vehicle has been described as WB-04/9410, while in charge-sheet the offending vehicle has been described as WB-04/ 9419. For the accident happened on 25-1-2004 at about 14.35 hrs under Tilhjala P.S. by the offending vehicle No. WB-04/9410, a specific case being Tiljala P.S. Case No. 25 dated 25-1-2004 was initiated. The said Tiljala P.S. Case ended in charge-sheet. But in the charge-sheet the number of the vehicle has been described as WB-04/9419, which is different than shown in FIR. It is the specific defence of the Calcutta Tramways Company that the vehicle No. WB-04/ 9410 giving rise the institution of Tiljala P.S. Case No. 25 dated 25-1-2004 was out of order for long time for the defects in engine, as a result of which the same was proposed to be declared condemned. After a full contest of the case with disclosure of full Defence of Calcutta Tramways Company, the claimant has come forward with a prayer for withdrawal without assigning specific formal defects, and the effects thereof over the merits of the case. With the complete disclosure of the Defence of the Calcutta Tramways Company in the instant case, it would be not wise to pass an order favouring the claimant with liberty to sue afresh after permitting the claimant to withdraw the claim case.
HENCE ORDERED That the claim case be permitted to withdraw, as prayed for, but there would be no liberty to sue afresh, as prayed for the reasons, as aforementioned.
8. Before adjudicating the issue to see whether there is any perversity in the finding, the statutory provisions dealing with the filing of the Motor Accident Claim Case are required to be dealt with for appreciation of the issue as to how far the claim cases could be controlled by techinicalities of a civil proceeding and/or criminal proceeding. The petitioner filed the application due to death of her son by an offending vehicle of opposite party. There is no denial of such fact that due to a motor accident by a vehicle owned by the Calcutta Tramways Company, the petitioner's son breathed last. The petitioner accordingly filed an application praying compensation under Section 163 A of the Motor Vehicles Act, 1988 which does not require any pleading or establishing of the fact that the death or permanent disablement in respect of which the claim was made relates to the wrongful act or neglect or default of the owner of the said vehicle. The Section only deals with the adjudicatory contour to identify the death by accident or permanent disablement by accident by the offending vehicle. Section 163-A of the Motor Vehicles Act, 1988 reads to this effect:
Section 163-A. 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 of the authorized 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).
(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.
9. Naturally the application under Section 163-A is filed by the unfortunate family members of the deceased claiming compensation. This provision is a social welfare legislation and it has accordingly exempted even to establish the fact that due to wrongful act or neglect or default of the owner of the vehicle, the accident occurred resulting death of the deceased or permanent disablement of the person concerned who suffered such accident. In such type of application the only thing that is required is the fact that the accident occurred, causing death or permanent disablement to a person by the owner of the offending vehicle. The ownership of the offending vehicle naturally is understood by the applicants of such compensation application from the First Information Report as is lodged to the nearest Police Station by any one or as is lodged suo motu by the police on identifying such motor accident. Hence, officially the petitioner upon collecting such First Information Report got the information of the number of the offending vehicle and quoted the same in her application. But subsequently the petitioner understood from the charge-sheet that the number of the offending vehicle was different and such difference is only one last digit that is in lieu of '0' the same would be '9'. The Motor Vehicles Act and the provisions thereof relating to grant of compensation in case of accidental death or permanent disablement of the injured person is out-come of social welfare legislation and such type of social welfare legislation always is read in the liberal manner by which the benefit could be granted to the person for whom such social welfare legislation is made. It is a settled legal proposition. Reliance may be placed in the judgment of Bharat Sing v. Management of New Delhi TB Centre . Where in dealing with the effect of Section 17-B of Industrial Disputes Act could be given retrospectively the Court held that on beneficial legislation liberal interpretation rule should be followed. It has been further settled law that rule of law must run akin rule of life. Reliance may be placed to judgment Municipal Board, Pratapgarh v. Mahindra Singh .
10. Furthermore, having regard to the judgment as referred to by the learned Advocate for the petitioner being Sohan Lal Passi (supra) it appears that the jurisprudential concept of dealing with or adjudicating with the claim application has been declared by the Apex Court by holding that no technical issues would be a bar to grant compensation. Having regard to such state of affairs and considering the legislature's approach by legislating the Motor Vehicles Act and the Rules thereof, this Court is of the view that the provision dealing with adjudication of claim cases arising out of motor accident are all beneficial provision for the sufferer/victim of such accident and or their relatives and no techinicalities would be a bar to non-suit a claimant claiming compensation.
11. It is true that the petitioner approached the Court under Order 23, Rule 1 as under the West Bengal Motor Vehicles Rules 1989, such provision of the CPC has applicability in view of Rule 343 of concerned rule. Even if CPC has been incorporated in the Rule itself still then it is not a civil suit and the technicalities and the niceties of the civil suit has no applicability in such type of cases having regard to the purpose and object, as laid down in the Motor Vehicles Act and the Rules thereof, to deal with such compensation cases.
12. Having regard to such legal position the impugned order is now to be scanned to identify if there is any perversity in the order itself vis-a-vis findings thereof. From the impugned order it appears that though the petitioner prayed for leave to withdraw the claim application to file afresh but the learned Court below simply allowed the prayer to withdraw the application without granting any leave to file afresh. The petitioner never approached the Court praying to withdraw the application simpliciter but her application was leave to withdraw the suit with liberty to file afresh. As she never approached the Court praying withdrawal of the application simpliciter, the learned Court below reached to an illegal conclusion by directing leave to withdraw the application only. The learned Court below ought to have rejected the application praying to withdraw the suit with liberty to file afresh. But the court had no jurisdiction to pass such order only granting leave to withdraw simpliciter the claim application as it was never prayed by the petitioner. In that view of the matter impugned order is not sustainable.
13. Furthermore, from the finding of the impugned order it appears that the learned Court below himself on perusal of the evidence on record was satisfied that there was a defect in mentioning the registration number of offending vehicle and such mistake was with reference to a last digit which in lieu of '9' it was mentioned as 'O'. Learned Court below further observed that in the First Information Report wrong registration number of the said offending vehicle was quoted but in the charge-sheet the number was correctly considered. Once there is a finding that in the First Information Report last digit of number was quoted wrongly which was practically mentioned in the application for praying compensation under Section 163-A of the Motor Vehicles Act, the learned Court below ought to have liberally appreciated the fact that at the time of filing of the claim case the petitioner had no other document save and except the First Information Report in her hand and under the procedural law to file such application, the copy of the First Information Report as was required to be mentioned and annexed in that application. Hence, there was no fault on the part of the petitioner to identify the offending vehicle as the petitioner got the information from the First Information Report which wrongly quoted the last digit of registration number. Subsequently, when the actual registration number of offending vehicle was known to the petitioner, the petitioner prayed for withdrawal of the application to file a fresh application incorporating the correct number. The petitioner did not identify the defeat but the learned Court below identified the defect and the defect is technical in nature and there was no fault on the part of the petitioner. The learned Court below, ought to have decided the issue by taking a liberal approach. Claim/ compensation for accident under Motor Vehicle Act, is a provision having a root in the social welfare commitment of the society and legislatures at their wisdom incorporated the provision granting relief by way of compensation in such type of accident case wherein the beneficiary is either victim or family of the victim in case of death. The learned Court below applied the technical proposition of the law mechanically in terms of Order 23, Rule 1, though, having regard to the Apex Court judgment, the approach ought to have been a liberal one. Furthermore, from the finding itself it is clear that the learned Court below had rightly considered the case but no relief as per Order 23, Rule 1 Sub-rule (3) was granted to the petitioner. Having regard to such state of affairs this Court is of the view that the learned Court below failed to exercise its jurisdiction properly as vested under the law by taking a liberal approach of the issue in terms of the essence and context of the statutory provision namely Motor Vehicles Act and the Rules thereof and failed to discharge the same in that angle and has reflected the element of perversity in the conclusion portion of the order. The judgment, as referred by the learned Advocate for the opposite party in V. Narayanappa AIR 1971 SC 334 (supra) a judgment of Mysore High Court, has no relevance in the instant case in view of the fact that there the case was a civil proceeding being a civil suit and as such the amendment application was rejected on merits. In the instant case there is a distinguishing features in the factual matrix, as here the case is not a civil suit but an application praying compensation under Motor Vehicles Act wherein the rigidity of civil proceeding has no applicability in view of the judgment of the Apex Court Renubala Das (supra). Another feature herein that the amendment application was not rejected but it was not pressed by the party herself. There is a gulf of difference between the two sequences namely, one is rejection of amendment application and another is withdrawal and non-pressing of amendment application. In such view of the matter the cited case is not applicable in the instant case.
14. The judgment of the Calcutta High Court, as referred to Ranubala Das (Supra), also has no relevance herein as in that case the Court was considering the impugned order which was passed by the Court of the learned Munsif without identifying sufficient reason in the impugned order. In the instant case the learned Court below identified the issue that is formal defect about the mistake of the incorporation of the registration number but despite such fact the learned Court below did not exercise the jurisdiction by approaching the issue liberally and on the other hand dealt with the matter rigidly which practically has non-suited the claimant to claim the compensation though fact remains that her son breathed last due to the motor accident and the ownership of the vehicle vested with the Calcutta Tramways Company.
15. Having regard to the aforesaid finding and observation, this Court is accordingly of the view that the order of the learned Court below is not legally sustainable. Accordingly the order is hereby set aside and quashed. Upon exercising the supervisory jurisdiction under Article 227 of the Constitution of India, this Court has the jurisdiction even to pass any further order on the issue in question relying on a judgment of the Apex Curt passed in the case of Sahil (Smt.) v. Manoj Kumar a judgment of the three Judges Bench wherein the Apex Court held that the jurisdiction of the Court under Article 227 of the Constitution of India could be exercised not only to quash the order but also to pass necessary order/direction granting relief and compliance thereof. Having regard to such legal position and having regard to the finding, as reached by the Court below and in view of the special facts of the case that the petitioner had no laches to incorporate the registration number of the offending vehicle as she quoted it from the First Information Report which subsequently was found wrong by the investigating agency while submitting charge-sheet by correcting registration number of the offending vehicle, this Court exercising the jurisdiction under Article 227 of the Constitution of India, accordingly is of the view that appropriate order also is to be passed to shorten the tenure of the litigation. In that view of the matter it is ordered that the prayer of the petitioner praying to withdraw the application filed under Section 163-A of the Motor Vehicles Act, 1988 with liberty to file afresh is allowed. The impugned order accordingly is set aside and quashed.
16. The petitioner is at liberty to file fresh application before the Court of Competent jurisdiction.
17. The application is, thus, allowed.