Allahabad High Court
The New India Assurance Company Limited ... vs Smt. Maya Devi & 6 Ors. on 15 October, 2019
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 6/Reserved
Case :- FIRST APPEAL FROM ORDER No. - 298 of 2006
Appellant :- The New India Assurance Company Limited Thru Dy.Manager
Respondent :- Smt. Maya Devi & 6 Ors.
Counsel for Appellant :- Jitendra Narain Mishra
Counsel for Respondent :- R.A.Kanojia,Amit Kumar Singh Bhadoria,Anshuman Patnaik,R.A.Kanaujia,Raj Kumar Verma,Rajendra Jaiswal,Shivendra Pratap Singh,Subodh Awasthi
Hon'ble Rajnish Kumar,J.
1. Heard, Shri Jitendra Narain Mishra, learned counsel for the appellant and Shri Shivendra Pratap Singh, learned counsel for the respondent no.7. None appeared for other respondents.
2. The instant appeal has been preferred against the judgment and award dated 11.11.2005, passed in M.A.C.No.208 of 2000;Smt. Maya Devi and others Versus The Harak Chand Flour Mills and others by Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Sitapur by which the claim petition has been allowed and an amount of Rs.2,95,000/- alongwith interest @ 6% per annum has been directed to be paid by the appellant-New Indian Assurance Company Limited.
3. Brief facts of the case are that the deceased Sobaran Lal was working on the post of Munim in M/s. Harak Chand Flour Mills i.e. opposite party no.5. On 28.05.2000 at about 2.15 in the day he was going on tractor No.USH-3956 on bye-pass road in Police Station Ramkoat, district Sitapur for the work of the Mill. The Trolly No.USX-4189 attached with the tractor touched the hanging electric wire. Consequently the electric current came down in the tractor and in the accident the deceased Sobaran Lal died on the spot. Therefore the claim petition was filed claiming compensation.
4. The respondent no.1 i.e. the opposite party no.5 herein (M/s.Harak Chand Flour Mills) filed its written statement denying that the deceased was working as Munim in the Mill and stated that he was working as labour and getting Rs.2000/- per month as salary. The respondent no.1 also denied that it has any relation with the tractor No.USH-3956. It was also stated that Tribhuwan Lal Driver, loading the waste of the mill on tractor trolly, was going from the back gate to dispose it off. When the trolly was going out from the back gate the live wire of 11000 k.w. which was hanging for the last many days, touched the trolly and at that time Sobaran Lal was sitting at the tractor trolly as labour. On account of electric current he jumped but slipped on the floor and died on the spot. It has denied the negligence of the tractor driver and stated that the tractor and trolly were ensured with the New India Assurance Company Limited and it is not liable for payment of any compensation. Tribhuwan Lal, tractor driver had not filed any written statement.
5. The appellant-New India Assurance Company Ltd. denied the accident and stated that there was no fault of the tractor driver in the accident in question and therefore it is not liable to pay any compensation.
6. The Uttar Pradesh Power Corporation had filed written statement denying the accident and stated that under the Motor Accident Claim Petition no compensation can be awarded against it. It was also stated that since the accident had not occurred from its vehicle so no cause of action has accrued against it under the Motor Vehicles Act. It was also stated that the electric wires were not loose at the spot of accident and there was no negligence of the electricity department, therefore, it is not liable to pay any compensation.
7. Considering the pleadings of the parties four issues were framed. Smt. Maya Devi, wife of the deceased as P.W.1 and Dhani Ram as P.W.2 were got examined on behalf of opposite party nos.1 to 4/claimants. A certified copy of the General Diary, copy of the post mortem report of deceased Sobaran Lal and 7 photographs of the spot of accident were filed by the respondents/claimants. The opposite parties got examined the tractor driver Tribhuwal Lal as O.P.W.1. They had filed copy of the cover note of Insurance Policy, driving licence of the driver Tribhuwan Lal, photocopy of certificate of tax of tractor and photocopy of cover note of the Insurance Policy of the tractor trolly, report of Inspector and certificate of licensing authority.
8. After hearing the parties and considering the material available on record learned Tribunal allowed the claim petition and awarded the amount as aforesaid and directed to the appellant Insurance Company to pay the compensation. Hence the present appeal has been filed.
9. Learned counsel for the appellant had submitted that the accident in question had occurred due to negligence of the U.P. Power Corporation as the live electric wires were hanging on the road, therefore the appellant-Insurance Company is not liable to pay the compensation awarded by the Tribunal. To buttress his arguments he submitted that the P.W.2, the eye witness, has stated in his evidence that the accident had occurred as the hanging electric wires had touched the tractor trolly. In the cross examination he has stated that if the trolly would have been of normal height the live wires would not have touched the trolly. The O.P.W.1 Tribhuwan Lal has also stated in his evidence that the wires were hanging so the trolly touched it. In his cross examination he has stated that the electric wires were hanging and if he would have driven the tractor keeping it left or right side, the accident could have been saved, but there was no other way as there were ditches on the road. The learned Tribunal has recorded a finding in regard to issue no.1 that if the tractor driver would have driven the tractor cautiously after seeing the electric wires the accident could have been saved. Therefore, the accident in question had occurred due to hanging of the live electric wires which was on account of negligence of the electricity department and therefore the U.P. Power Corporation Ltd. is liable to pay the compensation. In this regard learned counsel for the appellant has relied on the judgment of Hon'ble Apex Court in the case of M.P. Electricity Board Versus Shail Kumari and others;(2002) 2 SCC 162.
10. He further submitted that as per the certificate issued by the licensing authority Sitapur i.e. Paper No.60-Ga tractor driver Tribhuwan Lal was having the driving licence for driving the tractor w.e.f. 22.12.1990 to 21.12.1995 and from 09.06.2000 to 08.06.2003. The accident in question had occurred on 28.05.2000, therefore, on the date of accident he was not having valid and effective driving licence, but the learned Tribunal on the basis of the judgment of this court in the case of Oriental Insurance Company Ltd. Versus Nathuni Prasad and another;2004(1) T.A.C. (All.) dealing with the issue no.3 held that since prior to accident and after the accident the driver had valid and effective driving licence therefore it would be treated that he was having the valid and effective driving licence on the date of accident also. The learned counsel for the appellant submitted that the finding recorded by the learned Tribunal is erroneous and perverse because the said judgment is not applicable on the facts and circumstances of the present case because there is a big difference of about 5 years between the validity of both the licences. Therefore, the said judgment could not have been applied in the present case. There was violation of terms and conditions of the Insurance Policy and it cannot be deemed that he was having valid and effective driving licence on the date of accident only because he had obtained the driving licence w.e.f. 09.06.2000 immediately after the accident. In this regard learned counsel for the appellant has relied on Ram Babu Tiwari Versus United India Insurance Co.Ltd. and others;2008(3) T.A.C. 769 (S.C.), Ishwar Chandra and others Versus Oriental Insurance Co.Ltd. and others;2007(2) T.A.C. 393 (S.C.) and National Insurance Company Limited Versus Vidhyadhar Mahariwala and others;(2008) 12 SCC 701.
11. Lastly, learned counsel for the appellant submitted that the deceased Sobaran Lal was sitting on the tractor as a gratuitous passenger which is apparent from the evidence of P.W.2. He has stated in his cross examination that at the time of accident the deceased was sitting on the left side of the driver. O.P.W.1; driver of the tractor Tribhuwan Lal has also stated in his cross examination that Sobaran Lal had himself sat on the tractor. He was not asked by him or owner of the Factory. But it has not been considered by the learned Tribunal while dealing with the issue no.2. However, he fairly admitted that this plea was not taken before the Tribunal but submitted that under Section 168 of the Motor Vehicles Act 1988 (here-in-after referred as the Act of 1988) on receipt of an application for compensation made under Section 167 the Claims Tribunal is required to hold an inquiry into the claim. The Claims Tribunal has all the powers of the Civil Court under Section 169 of the Act, therefore, if the inquiry would have been held by the learned Tribunal in accordance with law it would have come out because there was evidence to this effect.
12. On the basis of above learned counsel for the appellant submitted that the impugned judgment and award passed by the learned Tribunal is not sustainable in the eyes of law and is liable to be set aside and the appeal is liable to be allowed.
13. Learned counsel for the respondent no.7 submitted that the claim petition was filed under the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal and no liability can be fastened on the opposite party no.7 i.e. the U.P.Power Corporation Limited under the Motor Vehicles Act, 1988. The learned Tribunal has rightly allowed the claim petition against the appellant-Insurance Company in accordance with law. There is no illegality or error in the judgment and award passed by the learned Tribunal. Therefore the appeal is liable to be dismissed against the opposite party no.7.
14. I have considered the submissions of the learned counsel for the parties and perused the record of FAFO as well as the trial court.
15. The deceased Sobaran Lal was going with the work of the Mill on 28.05.2000 at about 2.15 in the day from tractor No.USH-3956 when the wires of the electricity touched the trolly No.USX-4189 attached with the tractor. Consequently electric current came down into the tractor and the deceased died on the spot. P.W.2, an eye witness has stated in his evidence that the driver Tribuwan Lal was driving the tractor rashly and negligently and if he would have been driving slowly and the wires tight, the accident could have been saved. In his cross examination he has stated that angles of 4-5 fit height were installed in the trolly above normal height and if trolly would have been of the normal height the electric wires would not have touched it and the accident would not have occurred. The O.P.W.1; Tribhuwan Lal has stated in his cross examination that he had not seen the electric wires prior to accident. He has further stated in his cross examination that if he would have driven the tractor left or right the accident would have saved but there was no other way because there were ditches on the road.
16. After considering the evidence and material on record learned Tribunal has recorded a categorical finding in regard to issue no.1 that there is no fault of the electricity department and if the tractor driver would have driven the tractor carefully and after seeing the electric wires the accident would not have occurred. Therefore the accident in question is the outcome of the negligence of the tractor driver in which the deceased Sobaran Lal had died. Admittedly 4-5 fit heigh angles were fitted with the trolly, therefore the trolly was 4-5 fit higher than the height of the trolly of normal height. A perusal of the photographs filed by the respondents-claimants also indicates that the angles of 4-5 fit height were fitted over normal height of the trolly. In such a situation the tractor driver was to be more careful while driving the tractor. As per his statement he had not seen the wires prior to the accident, on the other hand he stated that if he would have driven the tractor from left or right, the accident could have been saved, so he must have seen the wires before accident but he has given contradictory statements to save him. This court is in agreement with the findings recorded by the learned Tribunal in regard to issue no.1 on the basis of material and the evidence on record. The learned Tribunal has rightly held that there was no fault of the electricity department in the accident therefore the judgment relied by the learned counsel for the appellant in this regard is of no assistance to his case.
17. The petition for compensation was filed under Section 163-A read with Section 166 of the Motor Vehicles Act, 1988. Section 163-A provides that the owner of the motor vehicle or 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. Section 166 of the Act provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made by the persons mentioned under sub clause (a) to (d). Section 165 provides that the State Government may constitute the Motor Accident Claims Tribunals for the purpose of adjudicating upon the claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of the motor vehicles, or damages to any property of a third party so arising, or both. Therefore the claims under the Motor Vehicles Act can be filed before the Motor Accident Claims Tribunal claiming compensation in regard to death due to accident arising out of the use of motor vehicle. Therefore when the Tribunal comes to the conclusion that the accident had occurred arising out of the use of motor vehicle, the respondents-claimants are entitled for the compensation under the Act.
18. The Hon'ble Apex Court interpreted the words "accident arising out of the use of a motor vehicle" in the case of New India Assurance Company Ltd. Versus Yadu Sambhaji More;(2011) 2 SCC 416; 2011 (99) AIC 135. The facts of that case in brief were that a petrol tanker was got hit by a truck due to which petrol started leaking from the tanker. At day break the local people started collecting the petrol leaking out from the tanker. In the melee the petrol caught fire and there was a big explosion in which 46 persons lost their lives. The legal heirs filed the claim petition. The owner and insurer contested the claim petition on the ground that the fire and the explosion causing the death of those who had assembled at the accident site could not be said to be an accident arising out of the use of a motor vehicle. The claims Tribunal observed that the fire and the explosion could not be said to be an accident arising out of the use of the tanker. Against the order of the Claims Tribunal appeals were filed before the High Court. The learned Single Judge of the High Court allowed the appeal and reversed the order passed by the Claims Tribunal. Against the decision of the Single Judge, the owner of the petrol tanker and the insurance company filed a Letters Patent Appeal which was dismissed by the Division Bench of the High Court. The owner of the petrol tanker and the insurance company then approached to the Hon'ble Apex Court challenging the judgment and order of the High Court. The S.L.P. was dismissed by the Apex Court in view of the decision in Shivaji Dayanu Patil Versus Tatschala Uttam More;1991(3)SCC 530. The Hon'ble Apex Court, after considering the question as to whether the fire and explosion of the petrol tanker in which Deepak Uttam More lost his life could be said to have resulted from an accident arising out of the use of a motor vehicle namely the petrol tanker, answered the question in the affirmative, that is to say, in favour of the claimant and against the insurer.
19. The Hon'ble Apex Court, in the case of Rita Devi Versus New India Assurance Co. Ltd.;(2000) 5 SCC 113, relying on interpretation of Section 92-A of the Motor Vehicles Act, 1939 in the case of Shivaji Dayanu Patil Versus Vatschala Uttam More;(1991) 3 SCC 530 held that the murder of the deceased was due to an accident arising out of the use of motor vehicle. The relevant paragraphs 16 to 18 are reproduced below:-
16. In the case of Shivaji Dayanu Patil v. Vatschala Uttam More[(1991) 3 SCC 530 : 1991 SCC (Cri) 865] this Court while pronouncing on the interpretation of Section 92-A of the Motor Vehicles Act, 1939 held as follows: (SCC p. 532, para 12) "... Section 92-A was in the nature of a beneficial legislation enacted with a view to confer the benefit of expeditious payment of a limited amount by way of compensation to the victims of an accident arising out of the use of a motor vehicle on the basis of no-fault liability. In the matter of interpretation of a beneficial legislation the approach of the courts is to adopt a construction which advances the beneficent purpose underlying the enactment in preference to a construction which tends to defeat that purpose."
17. In that case in regard to the contention of proximity between the accident and the explosion that took place this Court held: (SCC pp. 549-50, para 36) "36. This would show that as compared to the expression ''caused by', the expression ''arising out of' has a wider connotation. The expression ''caused by' was used in Sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii) of the Act. In Section 92-A, Parliament, however, chose to use the expression ''arising out of' which indicates that for the purpose of awarding compensation under Section 92-A, the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression ''arising out of the use of a motor vehicle' in Section 92-A enlarges the field of protection made available to the victims of an accident and is in consonance with the beneficial object underlying the enactment."
18. In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle."
20. A Division Bench of this court in the case of U.P.State Road Transport Corporation and another Versus Rajendra Kumar Gupta and others;2012 SCC OnLine All 994 considered the accident "arising out of the use of a motor vehicle". The brief facts of the said case are that the deceased Vaibhav Gupta son of the claimant was travelling from Jaunpur to Lucknow by Bus no.UP-65-AR-1874 owned by U.P. State Road Transport Corporation. The deceased requested the bus driver to stop the bus to attend the natures call. The bus was stopped by the driver at a place where a live high voltage electric wire was hanging. While getting down from the bus, the deceased got in touch with the electric wire, fell down on the road and died due to electric shock. The Motor Accident Claims Tribunal after considering the evidence and material on record came to the conclusion that the deceased died due to negligence of the driver of bus and passed the impugned order. The U.P.S.R.TC. challenged the order before this court. This court after considering the several judgments of the Hon'ble Apex court as well as the facts of the case came to the conclusion that it cannot be said that at the time of accident the deceased was not using the motor vehicle, or that the accident did not took place, arising out of the use of the motor vehicle and considering the other points also dismissed the appeal.
21. The other submission of the learned counsel for the appellant was that the driver was not having the valid and effective driving licence on the date of accident therefore the insurance Company is not liable to make payment of compensation. In regard to issue no.3 the learned Tribunal on the basis of a certificate of the licensing authority Sitapur has categorically recorded that the tractor driver Tribhuwan Lal was having driving licence w.e.f. 22.12.1990 to 21.12.1995 and w.e.f. 09.06.2000 to 08.06.2003 while the accident had occurred on 28.05.2000, therefore, undisputably the driver Tribhuwan Lal was not having valid and effective driving licence on the date of accident. But on the basis of the judgment of this court in the case of Oriental Insurance Co.Ltd. Versus Nathuni Prasad and another (Supra) the learned Tribunal held that the driver was having valid and effective driving licence on the date of accident. In the said case this court held that if the driver had a valid licence and it was again renewed in his favour, it shall be taken that he was competent to drive the vehicle and the claim petition cannot be dismissed on this ground.
22. The Hon'ble Apex Court, considering this issue, in the case of Iswar Chandra and others Versus Oriental Insurance Co.Ltd. and others (Supra) and after considering Section 15(1) of the Act regarding renewal of driving licence held that the accident took place on 28th April, 1995 and as on the said date, the renewal application had not been filed, the driver, did not have a valid licence on the date when the vehicle met with the accident. The relevant paragraphs 7 to 10 are extracted below:-
"7. Section 15(1) of the Act and the first proviso appended thereto reads as under :
"15. Renewal of driving licences. (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the dale of its expiry: Provided that in any case where the application for the renewal of a licence is made more than thirty days after the dale of its expiry, the driving licence shall be renewed with effect from the date of its renewal:"
8.From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28.04.1995. As on the said date, the renewal application had not been filed, the driver, did not have a valid licence on the date when the vehicle met with the accident.
9. In Swaran Singh (supra), whereupon the learned counsel appearing on behalf of the appellants relied upon, it is stated :
"45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry.
46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry."
10. This aspect of the matter is now covered by a decision of this Court in National Insurance Company v. Kusum Rai & Others;(2006) 4 SCC 250:2006 (3) T.A.C.1, wherein this Court referring to Swaran Singh (supra), opined :
"14. This Court in Swaran Singh clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis-a-vis the driver being not possessed of a valid licence was considered in Swaran Singh stating: (SCC pp. 336-37, para 89)
89. Section 3of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are:
(a) motorcycle without gear,
(b) motorcycle with gear,
(c) invalid carriage,
(d) light motor vehicle,
(e) transport vehicle,
(f) road roller, and
(g) motor vehicle of other specified description.
The definition clause in Section 2of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are goods carriage, heavy goods vehicle, heavy passenger motor vehicle, invalid carriage, light motor vehicle, maxi-cab, medium goods vehicle, medium passenger motor vehicle, motor-cab, motorcycle, omnibus, private service vehicle, semi-trailer, tourist vehicle, tractor, trailer and transport vehicle. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for motorcycle without gear, [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for light motor vehicle is found to be driving a maxi-cab, motor-cab or omnibus for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence."
23. The aforesaid judgment has been followed by the Hon'ble Apex Court in the case of Ram Babu Tiwari Versus United India Insurance Co.Ltd. and others (Supra) and National Insurance Company Limited Versus Vidhyadhar Mahariwala and others (Supra). Similar view has been taken by Hon'ble Apex Court in the case of Singh Ram Versus Nirmala and others;(2018) 3 SCC 800, relevant paragraphs 7 and 8 of which are extracted below:-
"7. In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had evidently failed to take reasonable care [Proposition (vii) of Swaran Singh [National Insurance Co. Ltd.v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] ] since he could not have been unmindful of facts which were within his knowledge.
8. In the circumstances, the direction by the Tribunal, confirmed by the High Court, to pay and recover cannot be faulted. The appeal is, accordingly, dismissed. There shall be no order as to costs."
24. In view of above this court is of the considered opinion that the driver Tribhuwan Lal of the tractor, involved in the accident, was not having a valid and effective driving licence on the date of accident on 28.05.2000, as such there was breach of terms and conditions of policy. Therefore, the findings recorded by the learned Tribunal in regard to issue no.3 are perverse and erroneous and not sustainable and are hereby set aside.
25. The last submission of learned counsel for the appellant regarding sitting of the deceased as gratuitous passenger on the tractor, learned counsel for the appellant himself has admitted that the said plea was not taken before the tribunal, therefore, once the said plea was not taken before the tribunal, the same could not have been considered by the learned Tribunal. Now the question arises as to whether the learned Tribunal has committed any illegality or error in not considering it while holding inquiry in to the claim as provided under Section 168 of the Act of 1988, exercising the powers of the Civil Court under Section 169 of the Act, 1988. Section 169 of the Act provides the procedure and powers of Claims Tribunal, which is extracted below:-
"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 evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects 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 (2 of 1974).
(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 inquiry."
26. Section 169(1) of the Act of 1988 provides that 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. Sub Section (2) of Section 169 provides that the claims Tribunal shall have all the powers of a Civil Court for the purpose as mentioned therein and for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. Sub-section (3) of Section 169 of the Act provides that 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 inquiry. The Tribunal has to follow the summary procedure subject to the Rules while holding the inquiry under Section 168 of the Act.
27. In exercise of powers conferred under the Motor Vehicles Act 1988 the Uttar Pradesh Motor Vehicles Rules, 1998 have been framed. Chapter IX of the Rules deals with the Claims Tribunals. Rule 204 provides the application for compensation. Rule 209 provides that after considering the application and the written statements and oral statements of the parties, the Claims Tribunal shall proceed to frame the issues on which the right decision of the claim appears to it to depend. Rule 211 provides that after framing the issues the Claims Tribunal shall proceed to record evidence thereon which each party may like to produce. Rule 220 provides that the Claims Tribunal in passing orders, shall record concisely in judgment the findings on each of the issues framed and the reasons for such finding and make an award specifying the amount of compensation to be paid by the insurer or in the case of a vehicle exempted under sub-section (2) or (3) of Section 146 by the owner thereof and shall also specify the person or persons to whom compensation shall be payable.
28. In view of above, it is apparent that the Claim petition is to be decided as per the procedure prescribed under the Rules. The issues are to be framed on the pleadings of the parties to which right decision of the claim appears to depend. Therefore, the Claims Tribunal has to decide the petition on the basis of the pleadings. So far as the powers of Civil Court conferred on the Claims Tribunal, Rule 221 provides the provisions of the Code of Civil Procedure 1908, which may be applied to proceedings before the Claims Tribunal, namely, Rules 9 to 13 and 15 to 30 of Order V; Order IX, Rule 3 to 10 of Order XIII, Rules 2 to 21 of Order XVI; Order XVII; and Rules 1 to 3 of Order XXIII. None of the provisions provide that the claims Tribunal would make an inquiry beyond pleadings for the right decision and award the just and reasonable compensation. Therefore the Claims Tribunal has to hold the inquiry into the claim for determining just and reasonable compensation on the basis of pleadings and law.
29. The Insurance Company can contest the claim arising out of the motor accident on the grounds mentioned in Section 149(2) of the Act of 1988, which includes the breach of a specified condition of the policy and a condition excluding liability for injury caused. The plea of gratuitous passenger is based on the terms and conditions of the Insurance policy which can be said to be a breach of the terms and conditions of policy and if the same has not been raised before the Tribunal and no issue was framed in this regard, it cannot be said that the learned Tribunal has committed any error in not considering the same.
30. In view of the aforesaid facts and circumstances since the driver of the tractor involved in the accident was not having a valid and effective driving licence on the date of accident so there was a breach of terms and conditions of policy, therefore, the Insurance Company cannot be fastened with the liability of paying compensation on behalf of owner of the vehicle. Therefore, this court is of the considered opinion that the compensation awarded by the learned Tribunal has to be paid by the owner of tractor no.USH-3956 and trolly no.USX-4189 i.e. the respondent no.5. The impugned judgment and award dated 11.11.2005 is liable to be modified to the extent that the appellant Insurance Company shall make the payment of the compensation awarded by the learned Tribunal with liberty to recover the same from the owner of the vehicle in accordance with law and the judgment of the Hon'ble Apex Court in the case of Oriental Insurance Company Limited Versus Shri Nanjappan and others;(2004) 13 SCC 224.
31. The appeal is partly allowed. The appellant-Insurance Company is directed to make the payment of awarded compensation to the claimants-respondents within a period of two months from today, if not paid, with liberty to recover the same from the owner of the vehicle as aforesaid. No order as to costs.
32. The Lower Court record and the amount deposited before this Court, if any alongwith the statutory deposit shall be remitted to the concerned Tribunal within a period of four weeks from today for adjusting towards the compensation to be paid to the claimants under the award.
(Rajnish Kumar,J.) Order Date :-15.10.2019 Banswar