Punjab-Haryana High Court
National Insurance Company vs Annie Varkey And Ors. on 30 May, 2006
Equivalent citations: I(2007)ACC256, 2007ACJ1827, (2006)144PLR412
JUDGMENT Vinod K. Sharma, J.
1. This judgment will dispose of F.A.O. No. 2022 of 2003 and F.A.O. No. 2279 of 2003 arising out of the award of the Motor Accident Claims Tribunal, Bathinda dated 26.02.2003. F.A.O. No. 2022 of 2003 has been filed by the Insurance Company to challenge the award of the Tribunal whereas F.A.O. No. 2279 of 2003 has been filed for enhancement of the compensation granted to the claimants.
2. The case set up by the claimants in the claim petition was that on 6.8.2001 at about 5.30/6 P.M. Chundamala Varkey Varkey along with co-driver Amandeep was on the main road of Model Town near railway Colony in Car No. DL-3C/5421. At that time Truck No. PB-3B-2728 came from Bhagu Raod side which was being driven by Yadwinder Singh rashly and negligently and at a fast speed. It went out of control and struck with the car, and as a result thereof, Chundamala Varkey Varkey received injuries and succumbed to those injuries. The car was extensively damaged. The said accident was witnessed by Constable Kanwalpreet Singh, Assistant M.H.C. in Police Post Civil Lines, Bathinda. A criminal case was registered against the driver of the truck vide F.I.R. No. 353 dated 6.8.2001 under Section 338, 427 and 304-A of the Indian Penal Code.
3. It was the case of the claimants that the deceased Chundamala Varkey Varkey was 57 years of age and was a School Teacher at Kendriya Vidyalaya No. 5, MIL Station, Bathinda. His monthly income was Rs. 15,000/- per month. The claim was filed by the widow, sons and daughter of the deceased. The claimants on account of the death of the deceased Chundamala Varkey Varkey claimed compensation of Rs. 14 lacs along with interest @ 18% P.A.
4. The respondent No. 1 contested the claim by challenging the jurisdiction of the Tribunal to entertain and try the said petition. The plea of estoppel against the claimants was also raised and an objection of non joinder of necessary party was also taken. It was alleged that the claimants had not come to the Court with clean hands. It was also asserted that a claim petition under Section 166 and 140 of the Motor Vehicle Act was filed against Yadwinder Singh, who was driver of the Truck No. PB-3B-2728 and the same was dismissed on 18th of January, 2002, whereas the present claim petition has been filed against the owner of Car No. DL-3C-5421 and the appellant insurance company. It was also pleaded by the respondent that the claim was highly excessive and ex-horbitant. It was further pleaded that as the accident had taken place due to rash and negligent driving of the driver of the truck Yadwinder Singh, petition under Section 163-A of the Motor Vehicles Act was not maintainable. He, however, admitted that he was the owner of the car involved in the accident.
5. The insurance company filed a separate reply and took a stand that respondent No. 1 was not holding a valid driving licence at the time of the accident and, therefore, insurance company was not liable to pay the compensation. It was pleaded that the terms and conditions of the insurance policy were violated as there was no fitness certificate of the vehicle in question. It was also pleaded that the claimants had concealed the material facts regrading petition under Sections 166 and 140 of the Motor Vehicles Act against the owner, driver of the truck having been dismissed.
On the pleadings of the parties, following issues were framed:
1. Whether the claimants are legal heirs and legal representatives of deceased Chundamala Varkev Varkev? OPA
2. Whether the claimants are entitled to claim compensation under Section 163-A of the Motor Vehicles Act, if so, to what extent and from Which of the respondents" OPA
3. Whether the Tribunal has no jurisdiction to entertain and try the present claim petition? OPR
4. Whether the claimants are estopped from their act and conduct from filing the present petition?, OPR
5. Whether the claim petition is bad due to non-joinder of necessary parties? OP.R
6. Whether the claim petition is liable to be dismissed as alleged in preliminary objection No. 9 of the reply of respondent No. 1 OPR
7. Whether respondent No. 1 Daljit Singh was holding a valid licence at the time of alleged accident? OPR
8. Relief.
6. The learned Tribunal held on issue No. 1 that claimants were the legal heirs of the deceased, issues Nos.2, 5 and 6 were taken up together and the Tribunal was pleased to hold that even though the stand taken by AW-3 that the accident had occurred due to fault of the driver of the truck, but this could not be a ground to debar the compensation under Section 163-A of the Motor Vehicles Act from either of the owner, driver and the insurance company of the vehicle involved in the accident. The Tribunal also held that it was open to the claimants to claim compensation from either of the joint tort feasers and, therefore, it went on to hold that petition under Section 163-A of the Act was maintainable against the respondents. It was also held by the Tribunal that the petition was not bad for non-joinder of necessary parties. The Tribunal further held that under Section 163-A of the Act, the claimants were required to establish that the death was due to accident arising out of the use of motor vehicle. In the present case, the claimants have established that the death had occurred due to the accident arising out of the use of motor vehicle i.e. Car involved in the accident. Even the learned Tribunal went on to hold that when the petition was under Section 163-A of the Act, the question of rashness and negligence of any vehicle was immaterial.
7. On the quantum of compensation, the learned Tribunal held that the claimants had reduced their income of Rs. 40,000/- P.A. for the purpose of claiming compensation under Section 163-A of the Motor Vehicles Act with the permission of the Tribunal. It was held by the Tribunal that the deceased was 58 years of age. It was also noticed by it that as per the claimants the deceased was drawing a salary Of Rs. 12,000/- per month, out of which he used to part with Rs. 10,000/- per month for meeting the house-hold expenses. Similarly, though the other witnesses produced by the claimants, deposed that the income of the deceased was more than Rs:12,O00Aper month, but the income of the deceased was reduced to Rs. 40,000/- per annum to claim compensation under Section 163-A of the Motor Vehicles Act. The Tribunal, therefore, by holding that the income was to be taken at Rs. 40,000/- and applying a multiplier of 8, assessed the compensation at Rs. 3,20,000/- and out of that, the compensation to the tune of 1/3rd was reduced by taking into account that this amount was required by the deceased for maintaining Himself had be been alive and accordingly granted a compensation to the tune of Rs. 2,13,333/-. All other issues were decided in favour of the claimants. Learned Tribunal also took up issues No. 3 and 4 together and held as under:
1 have considered the respective arguments, This claim petition under Section 163-A of the Motor Vehicles Act was already pending when the claim petition under Section; 166, of the Motor Vehicles Act was got dismissed by the claimants as withdrawn vide order dated 18.1.2002. In other words, two claim petitions were pending for the same cause of action. Accordingly, the claimants withdrew petition remained pending. In view of the ratio of the authority Oriental Insurance Co. Ltd. v. Hansrajbai v. Kodala 2001 S.O.L. Case No. 238, compensation can De claimed either under Section 166 read with Section 140 or under Section 163-A of the Motor Vehicle Act. When the petition under Section 166 read with Section 140 of the Motor Vehicles was got dismissed as withdrawn, this petition was already pending. Mere dismissal of claim petition as withdrawn cannot amount to dismissal of the petition on merits as has been held in the case of Dashmesh Bus Service (Regd.) Raikot v. Smt. Jagir Kaur and Ors. (supra) Authority Laxmi and Ors. v. Seethamma and Ors. (supra) is distinguishable on facts. In this case, this claim petition has not been filed after the dismissal of the claim petition under Section 166 read with Section 140 of the Motor Vehicles Act. Rather by way of getting the claim, petition dismissed as withdrawn the claimants have used their option to continue with this claim petition. As mentioned above, the claimants can exercise their discretion either to claim compensation under Section 166 read with Section 140 of the Motor Vehicle Act or under Section 163-A of the Motor Vehicles Act. In the case of Dashmesh Bus Service (Regd.) Raikot (supra) it was held that even if the provisions of Order XXIII Rule 1 of the Code of Civil Procedure are applicable to the proceedings under the Motor Vehicles Act, the same may well debar a claimant from instituting fresh proceedings on the same cause of action under the said Act. i.e. the Motor Vehicles Act. In this case, as mentioned above, claim petition under Section 166 read with Section 140 of the Motor Vehicle Act was pending when another application ' under Section 163-A of the Motor Vehicles Act was filed and claim petition under Section 166 was subsequently got dismissed on 18.1.2002. In view of this, and in view of the authority Oriental Insurance Co. Ltd. v. Hansrajbai v. Kodala (supra), I am of the view that this Tribunal has got the jurisdiction to decide this claim petition and the claimants are not estopped from filing this claim petition. Accordingly, both these issues are answered in favour of the claimants and against the respondents.
8. The Tribunal also held oh issue No. 7 that the driver of the car was holding a valid driving licence. As already referred, to above, the compensation to the tune of Rs. 2,13,333/- along with interest @ 9% per annum from the date of filing the claim petition till the date of payment was ordered. The liability was held to be joint and several.
9 Mr. Ashwani Talwar, learned Counsel appearing for respondent No. 5-driver and Owner of the car, challenged the findings of the learned Tribunal with regard to the maintainability of the claim petition under Section 163-A of the Motor Vehicles Act. He placed reliance on the judgment of this Court in F.A.O. No. 5949 of 2002 titled as National Insurance Co. Ltd. v. Baljit Kaur and Ors. decided on 11.05.2006 to contend that a petition under Section 163-A of the Motor Vehicles Act, was not maintainable as the evidence brought on record was to be effect that the deceased was drawing more than Rs.l2,000/- per month as his salary and, therefore, it was not open for the claimants to restrict the income to Rs. 40,000/- for the purpose of bringing the case within the purview of Section 163-A of the Act.
10. Mr. Ashish Grover appearing for the respondent-claimants vehemently argued that it was open to the respondents to reduce the income so as to bring the case within the purview of Section 163-A of the Motor Vehicles Act. Therefore, no fault can be found with the judgment rendered by the Motor Ac6idaat Claims Tribunal. In support of his contention, he placed reliance on the judgment of the Hon'ble High Court of Karnataka reported in Sharabai and Anr. v. P. Sahebkhah and Ors. 2006 A.C.J. 229. He referred to para 6 of the judgment which reads as under:
Admittedly, the appellants-claimants made application only under Section 163-A of the Act. The argument of the learned Counsel for the insurance company is that since in the said application, it was claimed by the claimants that the deceased was earning yearly income of Rs. 1,00,000/- and since that income is more than Rs. 40,000/- the application filed by them is not maintainable and that application ought to have been treated as the one filed under Section 166 of the Act and dealt with accordingly, this submission is not acceptable to us for more than one reason. The pleading of a party can never be placed on the pedestal of law. Simply because claimants have under a wrong perception or appreciation of the facts asserted a fact which they can not prove, that circumstances itself without anything further has no legal efficacy to determine the jurisdiction of the M.A.C.T. The jurisdiction of the M.A.C.T. is determined by the law and not by pleading of a party who invokes its jurisdiction. Be that as it may, it is not a finding of M.A.C.T. that the yearly income of the deceased was more than Rs. 40,000/-. On appreciation of oral and documentary evidence, the Claims Tribunal has recorded a finding that the deceased was earning only Rs. 2,400/- per month. That means that the deceased was earning Rs. 28,800/- per annum. Therefore, we hold that the Tribunal had jurisdiction to entertain the application filed by the appellants-claimants under Section 163-A of the Act and that in entertaining that application, the MACT has not committed any illegality as contended by the learned Standing Counsel for insurance company.
11. The learned Counsel for the respondents further placed reliance on the judgment of this Court in the case of Ravinder and Anr. v. Subhash Chand and Anr. 2006 (2) R.C.R. (Civil) 525 to contend that this Court by taking notice of the judgment of the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd. 2004 A.C.J. 934 has come to the conclusion that it was open to convert proceedings from Section 166 to Section 163-A of the Motor Vehicles Act. The learned Counsel also placed reliance on the judgment of this Court in Gurmeet Kaur and Ors. v. Hardeep Singh and Anr. 2006 A.C.J. 218, to contend that it was open to the claimants to abandon the part of their claim. The learned Counsel also placed reliance on the unreported judgment of this Court in Civil Revision No. 5761 of 2004 titled as Kalu and Anr. v. Karnail Singh and Ors. decided on 29.7.2005 to contend that it was open to the claimants to amend the claim petition by converting it one from Section 166 to one under Section 163-A of the Motor Vehicles Act.
12. I have gone through the judgments referred to above by Mr. Ashish Grover and find that these do not help his case. The Hon'ble Karnataka High Court in Sharabai and another's case (supra) did not lay down that a petition can be brought under Section 163-A of the Motor Vehicles Act by claiming the lesser income than the one which was being drawn by the deceased. The Hon'ble High Court merely held that the pleadings of a party could never be placed on the pedestal of finding by Tribunal. In the said case, the Hon'ble High Court held that the claimants had claimed that the income of the deceased was Rs. 1,00,000/- but the finding recorded by the Tribunal was that they failed to prove the same on record. The Hon'ble High Court went on to hold that it was not the finding of the Tribunal that yearly income of the deceased was more than Rs. 40,000/-. Thus, this judgment is of no help to the case of the respondents. Our own High Court in the case of Ravinder and Anr. (supra) also did not hold that a petition under Section 163-A of the Act would be competent in case income of the deceased was more than Rs. 40,000/-. In the said case, this Court refused to interfere in exercise of its revisional jurisdiction under Article 227 of the Constitution of India against the order allowing the amendment of the claim petition to convert it from one under Section 166 to one under Section 163-A of the Motor Vehicles Act with a view to restrict the income to less than Rs. 40,000/-. Similarly, the judgment of this Court in Gurmeet Kaur's case (supra) is also of no help to the respondents as in that case this Court was pleased to hold that the claimants can be permitted to scale down their claim and mention correct income of the deceased. In the case in hand, the correct income of the deceased was Rs. 12,000/- per month. Therefore, it was not open to the claimants to forego part of the claim, so as to bring the claim under Section 163-A of the Motor Vehicles Act.
In view of the law laid down by the Hon'ble Supreme Court in Deepal Girishbhai Soni and Ors. case (supra), by this Court in Gurmeet Kaur's case (supra) and in view of decision rendered by me in F.A.O. No. 5949 of 2005 (supra). F.A.O. No. 2022 of 2003 filed by the Insurance Company is allowed and order of Tribunal is set aside.
F.A.O. No. 22798 of 2003 filed by the claimants for enhancement of the compensation is dismissed in view of the findings recorded in F.A.O. No. 2022 of 2003. No order as to costs.