Andhra HC (Pre-Telangana)
The Branch Manager, The New India ... vs Harijana Babakka And Ors. on 3 December, 1991
Equivalent citations: 1992(2)ALT155
ORDER Radhakrishna Rao, J.
1. On account of the death of Harijana Thippanna in a Motor Accident, his wife and son filed a claim petition under Section 100-A of the Motor Vehicles Act claiming compensation of Rs. 50,000/-. The owner remained ex parte. The Insurance Company took all the available pleas, but they have not taken the plea about the statutory liability that has to be fixed. After contest, it has been found by the Tribunal that the driver drove the vehicle rashly and negligently resulting in the death of the deceased and the claimants are therefore, entitled for a compensation Rs. 24,000/- and fixed the liability jointly and severally. It is against that, the Insurance Company filed the appeal.
2. The main contention that has been raised by the claimants is that the appeal itself is not maintainable. That contention has no force. When the owner himself remained ex parte and he allowed the court to pass an order on the merits, non impleading of the owner by the Insurance Company cannot be said to be a fatal one. In an earlier case this court had an occasion to consider the addition to Sub-clause (4) to Order 41, Rule 14 of CPC and held that the purpose of the amendment is to void delay, but that purpose is in no way served by sending notice to those who allow the litigation to take its Course and therefore, no notice is necessary to those who remained ex parte in the trial.
3. Reliance is placed on the decision in Magadri Satyanarayana v. B. Jayaramarao, . That is a case where the claimants filed an appeal and they have not impleaded the owner. If the claimants want the enhancement without impleading the owner, they cannot get the award under Section 95 of the Motor Vehicles Act. First of all, the liability has to be fixed holding the owner of the vehicle as responsible. When the main person against whom an award has been passed has not been impleaded in the appeal fixed for enhancement, they cannot be permitted to have a award against the Insurance Company in the absence of the owner whose primary liability is to pay the amount. The decision rendered in that case is not applicable to a case where the Insurance Company filed an appeal to the extent of fixing the liability. It is not the case of the Insurance Company that the owner must be absolved or that the claimants are not entitled to the amount. In the appeal CMA No. 503/87, also Ramaswamy, J., (as he then was) held that notice was not necessary to the owner and it has been dispensed with.
4. The point that emerges to be decided in this case is whether the Insurance Company can file an appeal to fix the liability as prescribed by the statute.
It is the duty of the Tribunal to give effect to the provisions of the statute regarding the liability contained in the Motor Vehicles Act. Even in the absence of the pleadings by the Insurance Company, a duty is case on the Tribunal to see as to what extent the liability has to be fixed on the owner as well as on the Insurance Company. Different types of cases have come up and the liability will arise basing on the capacity of the persons that are involved. In case of a bus passenger, the liability is to a certain extent and in case of third party, the liability is to a different amount. When different amounts have been prescribed under different cricumstances making the Insurance Company liable statutorily to a particular amount, it cannot be said that mere absence of a plea, will give rise to the owners to say that the entire liability has to be fixed on the Insurance Company alone. So, not making an attempt by the court to fix the liability as per statute, certainly gives scope to the Insurance Company to file an appeal and plead in the absence of the owner also. For fixing the statutory liability, the presence of the owner is not necessary, as by virtue of his conduct, he himself remained ex parte by not participating in it. A person who has not participated even after issuance of the notice, cannot be allowed to say that the joint and several liability, in case, it is implemented, will cause additional burden on him. It is only the joint and several liability that has been fixed by the Tribunal. When the liability has been fixed at Rs. 15,000/- and no liability is fixed on the Insurance Company, then the question of prejudice will arise to the claimants. An amount of Rs. 15,000/- has to be fixed statutorily and the same must be fixed on the Insurance company even in the absence of the owner who remained ex parte. The decree is modified fixing the liability of Rs. 15,000/- on the Insurance Company and Rs. 9,000/- on the owner. In this case, statutory liability can be fixed even in the absence of the plea, as this Court held earlier that if no plea is there, but material is available, the Court is competent to do so.
5. In the result, the C.M.A. is allowed to the extent indicated above. No costs.