Allahabad High Court
The Oriental Insurance Comp. Ltd. ... vs Smt. Rani And Ors. on 12 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 1546, (2019) 3 ALL WC 2838 (2019) 4 ADJ 31 (ALL), (2019) 4 ADJ 31 (ALL)
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (AFR) Court no. 29 (Reserved) Case :- FIRST APPEAL FROM ORDER No. - 757 of 2011 Appellant :- The Oriental Insurance Comp. Ltd. Amethi Sultanpur Through Respondent :- Smt. Rani And Ors. Counsel for Appellant :- Anil Srivastava Counsel for Respondent :- Brijesh Yadav Vijay,G.S. Triparhi,Hari Prakash Srivastava,Mata Prasad Yadav Hon'ble Vikas Kunvar Srivastav,J.
1. This First Appeal From Order filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to ''Act' in short) against the judgment and award dated 26.04.2011 as well as order dated 23.03.2011, rejecting the application under Section 170 of the Motor Vehicles Act, 1988, preferred by the appellant in Motor Accident Claim Petition No. 232 of 2009, passed by Motor Accident Claims Tribunal (hereinafter referred to ''Tribunal' in short)/Additional District Judge, Court no. 6, Sultanpur, whereby, a compensation in favour of claimants-respondents to the tune of Rs. 4,17,500/- alongwith interest @ 7% per annum was awarded.
2. Brief facts of the case are that on 22.06.2009 at about 3:00 p.m. the deceased-Ramhet was going on his Motorcycle No. UP 42-G/2180 from village Umaradeeh to Jamo alongwith his father-in-law Shyam Lal and mother-in-law Dhanpata Devi. When he reached near Dharmshala of Jivnanandan Tiwari Ka Purwa, a Mini Truck No. 44 AH/4081 which was driven rashly and negligently, dashed the Motorcycle from the front side. On account of serious injuries sustained by the deceased-Ramhet, he died on the spot and his father-in-law Shyam Lal and mother-in-law Dhanpata Devi received severe injuries.
3. Regarding accident, a First Information Report was lodged by Ram Kumar, brother-in-law of the deceased on the same day at Police Station Jamo, District Sultanpur as Case Crime No. 375/2009, under Sections 338, 279, 427, 304-A of Indian Penal Code. Post-mortem of the deceased-Ramhet as well as medical examination of Shyam Lal and Dhanpata Devi was conducted in District Hospital, Sultanpur.
4. The Motor Accident Claim Petition No. 232 of 2009 was filed by the wife of the deceased, two minor children and his parents before the Motor Accident Claims Tribunal/Additional District Judge, Court no. 6, Sultanpur. It is claimed that at the time of death, the deceased-Ramhet was a healthy and young man and was earning a sum of Rs. 5000/- per month by taxi driving, being a skilled driver. There was no other earning member in the family of the deceased. In the Claim Petition, the claimants have claimed the compensation to the tune of Rs. 12,62,000/-.
5. By the Motor Accident Claims Tribunal, following seven issues were framed:
(i) Whether the deceased-Ramhet was died due to injuries sustained in the accident dated 22.06.2009 occurred between Truck no. 44 AH/4081 and the Motorcycle No. UP 42-G/2180, driven by the deceased.
(ii) Whether there was contributory negligence on the part of deceased.
(iii) Whether Truck no. 44 AH/4081 was insured, if yes, whether there was any violation of the terms and conditions of the policy of insurance.
(iv) Whether there were necessary documents at the time of driving of Truck no. 44 AH/4081
(v) Whether the petition suffers from non-joinder of necessary party for the reason the insurer of Motorcycle is not made party.
(vi) Whether opposite party no. 3 is entitled for the benefit of Section 149(2) of Motor Vehicles Act.
(vii) Whether the claim-petitioners are entitled for compensation, if yest to what extent.
6. In support of their case, the claim-petitioners before the Motor Accident Claims Tribunal have produced the documentary evidences, namely, copy of First Information Report as Exhibit 7-ga-1, post-mortem report of deceased-Ramhet as Exhibit 7-ga-2 as well as seven other documentary evidence, namely, certified copy of chargehseet (22-ga/2), Site map (23-ga/2), post-mortem examination report (23-ga-2), driving licence of the deceased (24-ga-1), registration certificate of the vehicle of deceased (25-ga/1) as well as copy of insurance of the vehicle (25-ga/2).
7. From the side of respondents, oral evidence has not been adduced before the Motor Accident Claims Tribunal. On behalf of respondent no. 1(Dev Raj Singh) and respondent no. 2 (Ram Sumer), documentary evidences, namely, certified copy of registration certificate of vehicle, tax receipt, photocopy of vehicle permit, pollution certificate, fitness certificate, insurance cover note of the vehicle and driving licence have been produced. On behalf of respondent no. 5 (National Insurance Company), cover-note of insurance policy, registration certificate etc. were produced.
8. The claim-petitioners have produced PW-1-Smt. Rani and PW-2-Shyam Lal (injured eye witnesses). The opposite party no. 3-Oriental Insurance Company is the insurer who has insured the offending motor vehicle Truck no. 44 AH/4081. From the pleadings of the parties, it appears that the contract of insurance as to the third party risk was effective on the relevant date of accident. From the pleadings, it also appears that the fact that the victim-deceased-Ramhet who was driving the Motorcycle No.UP 42-G/2180, met an accident with Truck 44 AH/4081 wherein suffered severe injuries and succumbed to death, is not disputed.
9. Learned Motor Accident Claims Tribunal, Sultanpur taking into consideration the evidence of eye witness PW-2-Shyam Lal held that the offending vehicle Truck No. 44 AH/4081 has wrongly and negligently collided with the Motorcycle driven by Ramhet (deceased) which led in death due to severe injuries. The Motor Accident Claim Petition was filed by the heirs of the deceased of the accident dated 22.06.2009, under Section 166 of the Motor Vehicles Act.
10. It also appears from the judgment, impugned in this appeal, that learned Motor Accident Claims Tribunal discussed the liability to pay compensation to the claim-petitioners by the insurer/appellant for and on behalf of the owner of the offending vehicle Truck No. no. 44 AH/4081.
11. The Motor Accident Claims Tribunal has further discussed in its judgment that the driver of the offending Motor Vehicle Truck no. 44 AH/4081, namely, Ram Sumer had valid and effective licence at the relevant date of accident. Further, the determination of compensation was done on the basis of age of the victim using multiplier ''17' as given in the table of IInd Scheduled, under Section 163 (A) of the Motor Vehicles Act.
12. Aggrieved therefrom the insurer has preferred appeal on the following grounds:
(1) The impugned judgment and award is entirely misconceived and against the material on record and settled law.
(2) The deceased was driving the Motorcycle alongwith two pillion riders which shows his extreme negligence and carelessness, but learned Tribunal has failed to appreciate the same.
(3) This was a case of contributory negligence as the accident occurred between two vehicles coming from opposite directions while the deceased was driving his Motorcycle, he saw the Truck coming towards him from a distance of 25 meters.
(4) The application preferred by the appellant under Section 170 of the Motor Vehicles Act was also rejected.
(5) The owner of the disputed vehicle did not effectively contest the aforesaid case nor produced any eye witness.
(6)The owner of the Motorcycle though was impleaded as party but he did not contest the case and the case proceeded ex-parte against him.
(7) The learned Motor Accident Claims Tribunal has given erroneous finding regarding sole negligence on the part of the driver of Truck.
(8) The driver of the Truck in question was never produced for his examination and cross examination.
(9) The award is excessive and exaggerated.
13. Heard learned counsel for the appellant Sri Anil Srivastava, learned counsel for the claimant-respondents and perused the record of court below in the light of arguments submitted by them.
14. First of all the argument regarding excessiveness of award of compensation by the learned Motor Accident Claims Tribunal is to be looked into.
15. How to calculate the compensation is made clear by Hon'ble the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another reported in [AIR, 2009, Supreme Court, 3104]. The law laid down in the case of Sarla Verma for determination of compensation has also been adopted and future prospect has also been added by Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others reported in [AIR 2017, Supreme Court 5157]. To have uniformity and consistency, Tribunals should determine the compensation in cases of death, by following the well settled steps as given in the case of Sarla Verma (supra) are as under:
"Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the ''loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added."
16. The claim petition was presented before the Motor Accident Claims Tribunal. The MACT from the materials available on record found the age of victim of the accident, the deceased-Ramhet, 32 years. The evidence in this regard before the MACT was the driving licence of the deceased wherein his date of birth was given as 01.01.1977. The post-mortem report has also confirmed the age of the deceased-Ramhet about 32 years. According to the guidelines set by Hon'ble Supreme Court in the case of Smt. Sarla Verma (supra), the Tribunal first of all proceeded to ascertain the multiplicand and for this purpose, the learned MACT did not find the income of the deceased, though alleged from the agricultural work and taxi driving, proved by evidences. Therefore, on the then prevailing rate, Rs. 100/- was taken as minimum income of the deceased, as such the annual income was worked out notionally at Rs. 36,000/- per annum. The learned MACT deducted 1/3 of the said amount as the amount spent by the deceased on account of personal and living expenses. Therefore, the balance Rs. 24000/- was held to be the annual income whereupon the dependent-claim petitioners had their dependency for livelihood.
17. Next step to be ascertained by the learned Motor Accident Claims Tribunal is to ascertain the proper 'multiplier' depending on the age of the victim. Learned MACT had found the age of deceased 32 years. In accordance with the guidelines by Hon'ble Supreme Court, the 'multiplier' applicable for the victims falling under the age group of 31 to 35 years is '17'. Learned MACT correctly chosen the multiplier '17' and, thus, worked out the total compensation amount as Rs. 4,08,000/-. Further, as per guidelines of Hon'ble Supreme Court, Rs. 2000/- for the cremation, Rs. 25,00/- for the loss of estate and Rs. 5000/-, also added by the tribunal for the loss of concert, was granted to the widow-the claim petitioner. The interest is also awarded at the proper rate of 7% per annum, chargeable from the date of petition till the date of actual payment. As such the amount worked out by the tribunal as compensation to be awarded to the claim-petitioners is not excessive. The ground taken in the appeal in this regard and the argument made is baseless.
18. Learned counsel for the offending Truck No. 44 AH/4081 has cited the judgment rendered in the case of New India Assurance Company Ltd. Vs. Salma Begum reported in [2014(4) T.A.C. 630 (All.)] which relates to the quantum of compensation. The law given in the case of Sarla Verma by the Apex Court for determination of compensation has been adopted by Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others reported in [AIR 2017, Supreme Court 5157].
19. So far as the excessive award of amount of compensation is concerned, the argument is quite baseless as the learned Motor Accident Claims Tribunal did not rely simply on the oral evidence of the claim-petitioners regarding the monthly income having been earned by the deceased from taxi driving @ Rs. 5000/- per month but notionally fixed Rs. 3000/- per month taking income Rs. 100/- per day as per then prevailing rate of minimum wages on notional basis and determined the compensation taking help of guidelines given by Hon'ble Apex Court in the case of Sarla Verma (supra).
20. Learned Tribunal has calculated and determined the award amount after following all the norms.
21. So far as the liability of Insurance Company is concerned, the same has been fixed in view of law laid down by this Court in the case of New India Assurance Company Ltd. Vs. Rula and others reported in [(2000) 3 SCC 195]. Para nos. 9, 10 and 11 of the said judgment are quoted hereinunder :
"9. Section 149 casts a duty on the insurer to satisfy judgments and awards against persons insured in respect of third party risks. Sub-section (1) of Section 149 is quoted below :
"149. Duty of insurers to satisfy judgments and awards against person insured in respect of third party risks -- (1) If, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) [or under the provisions of section 163A] is obtained against any person insured by the policy then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments."
10. The contract of insurance in respect of motor vehicles has, therefore, to be construed in the light of the above provisions. Section 146(1) contains a prohibition on the use of the motor vehicles without an insurance policy having been taken in accordance with Chapter 11 of the Motor Vehicles Act. The manifest object of this provision is to ensure that third party, who suffers injuries due to the use of the motor vehicle, may be able to get damages from the owner of the vehicle and recoverability of the damages may not depend on the financial condition or solvency of the driver of the vehicle who had caused the injuries.
11. Thus, any contract of insurance under Chapter 11 of the Motor Vehicles Act, 1988 contemplates a third party who is not a signatory or a party to the contract of insurance but is, nevertheless, protected by such contract. As pointed out by this Court in New Asiatic Insurance Co. Ltd. vs. Pessumal Dhanamal Aswani & Ors. AIR 1964 SC 1736, the rights of the third party to get indemnified can be exercised only against the insurer of the vehicle. It is thus clear that the third party is not concerned and does not come into the picture at all in the matter of payment of premium. Whether the premium has been paid or not is not the concern of the third party who is concerned with the fact that there was a policy issued in respect of the vehicle involved in the accident and it is on the basis of this policy that the claim can be maintained by the third party against the insurer."
22. As such, as the offending vehicle was insured by the appellant and the insurance coverage was effective at the relevant date of accident, there is no doubt as to the responsibility of the Insurance Company to demnify the third party who suffered the risk. While the argument of appellant in this regard has no force, particularly in the absence of any pleading and evidence regarding breach of any terms and conditions of the policy coverage by the appellant.
23. Thus, learned Motor Accident Claims Tribunal has not committed any error in reaching at the conclusion for award of compensation to the claim-petitioners against the the appellant-Insurance Company as insurer of the offending motor vehicle as the insurance coverage was effective at the relevant time of accident.
24. Argument on contributory negligence is raised.
25. Vehemence of argument submitted by learned counsel for the appellant is upon the issue of contributory negligence in order to emphasis the argument that the learned Motor Accident Claims Tribunal erred in finding at conclusion that no contributory negligence is committed by the deceased-Motorcycle driver.
26. So far as the contributory negligence is concerned, this plea was raised and issue no. 2 was framed by the Tribunal but the Claim-petitioners produced PW-2-Shyam Lal as eye witness and according to his narration, the offending vehicle Truck was being driven rashly and negligently. Since he himself was a pillion rider of the Motorcycle, which was being driven by deceased-Ramhet, and met with an accident, he further stated that the Truck driver was driving the Truck rashly and negligently, whereas the Motorcycle was being driven by deceased-Ramhet rightly.
27. Since the plea of contributory negligence was taken by the the appellant-Oriental Insurance Company-opposite party no. 3 in claim petition, therefore, burden of proving the fact of contributory negligence was on the part of the driver of the Motorcycle. Though, the Truck driver, namely, Ram pher was impleaded as opposite party no. 2 in the Claim Petition by the Claim-petitioners and he was duly served with the notice but neither the owner of the Truck nor the Oriental Insurance Company-insurer of the Truck called the driver for examination-in-chief and to verify the fact of the accident and the negligence therein.
28. Perusal of issue no. 7 framed by learned Motor Accident Claims Tribunal, it is clear that accident was occurred due to negligent driving of the truck driver. At the relevant time of accident, offending vehicle Truck no. 44 AH/4081 was insured. Truck driver had a valid licence and insurance policy was effective at that point of time. Vehicle was insured by the appellant. Learned Motor Accident Claims Tribunal did not rely simply on the oral evidence of the claim-petitioners regarding the monthly income having been earned by the deceased from taxi driving @ Rs. 5000/- per month but notionally fixed Rs. 3000/- per month taking income Rs. 100/- per day as per prevailing rate of minimum wages on notional basis and determined the compensation taking help of schedule appended in Section 163(A) of the Act.
29. Apart from all this, perusal of lower court record shows that, even initial burden to prove own pleadings is not discharged by the appellant as no documentary evidence has been produced on behalf of the appellant-Oriental Insurance Company or on behalf of the owner of the offending vehicle Truck no. 44 AH/4081 to prove the fact of negligence on the part of Motorcycle driver i.e. deceased-Ramhet in the accident.
30. Hon'ble Apex Court in its judgment and order dated 09.02.2018 passed in the case of Archit Saini and Another Vs. The Oriental Insurance Company Limited and Others, Civil Appeal No. 7300-7309 of 2016, held as under:
".......While considering a claim petition, the Tribunal is required to hold an enquiry and act not as criminal court so as to find whether the claimants have established the occurrence beyond shadow of any reasonable doubt. In the enquiry, if there is prima facie evidence of the occurrence there is no reason to disbelieve such evidence. The statements coupled with the facts of registration of FIR and trial of the accused in a criminal court are sufficient to arrive at a conclusion that the accident has taken place. Likewise, in Kusum Lata Vs. Satbir, 2011 (2) RCR Â(C) 379 (SC) Hon'ble Apex Court has held that in a case relating to motor accident claims, the claimants are not required to rove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
31. On the other hand, the chargesheet submitted by the police in relation to the accident in question clearly shows the negligence on the part of Truck driver. The learned Motor Accident Claims Tribunal has discussed all these evidences in the judgment impugned in this appeal while deciding issue no. 2, regarding contributory negligence on the part of Motorcycle driver i.e. the deceased in the accident.
32. Site Plan attached with the chargesheet submitted by the Police, taking into account the eye witnesses and factual state on the spot of accident, is also sufficient to show the preponderance of probabilities that the offending Truck was driven rashly and negligently and the accident took place at wrong side of the road.
33. In the findings, on the basis of ocular or documentary evidence adduced or produced by the appellant before the learned Motor Accident Claims Tribunal, the learned Motor Accident Claims Tribunal had not erred in reaching at conclusion that it was the offending Truck which committed negligence by rash and negligence driving resulting into an accident wherein the deceased-Ramhet-Motorcycle driver died. Therefore, on the point of contributory negligence, the submissions made by learned counsel for the appellant, have no force.
34. Learned counsel for the appellant-Oriental Insurance Company, in support of his argument has relied upon the judgment of Hon'ble Apex Court rendered in the case of Bijoy Kumar Dutta Vs. Bidyadhar Dutta and Others reported in [2006(1) T.A.C. 969(S.C.)] wherein Hon'ble Apex Court observed that MACT has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident.
35. In the instant case, the collision was between the Truck and Motorcycle on account of rash and negligent driving of Truck driver resulted into death of Motorcycle driver, as such, the facts of the aforesaid judgment are not similar to the present case.
36. In this regard it would be necessary to draw attention towards standard of proof of any fact before the Motor Accident Claims Tribunal which is a summery procedure, particularly when the burden of proof of any fact is on the part who pleads the same on it's own pleadings.
37. In the case of Mangla Ram Vs. The Oriental Insurance Company Ltd. And Others [Civil Appeal Nos. 24992500 of 2018, arising out of SLP(Civil) Nos. 2814142 of 2017], Hon'ble Apex Court has held as under:
"13. The other socalled reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted......."
18. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Ors.16, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under the IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in paragraph 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus:
"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient 16 (1980) 3 SCC 457 disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider no fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard."
19. In Dulcina Fernandes (supra), this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi (supra). In paragraphs 8 & 9, of the reported decision, the dictum in United India Insurance Co. Ltd. Vs. Shila Datta17, has been adverted to as under:
"8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a threeJudge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10) ''10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
* * *
(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. ... (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.'
9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, SCC p. 519) ''10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.' " 17 (2011) 10 SCC 509 In paragraph 10 of the reported decision [Dulcina Fernandes and Ors. (supra)], the Court opined that nonexamination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."
38. Section 101 of the Evidence Act, 1872 is quoted hereunder:
"101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
39. Burden of proof has two distinct meanings, firstly the ''legal burden' which may be used to indicate the burden of proof on the pleadings which means that it rests on the parties. This fixed at the beginning of the trial and is settled as a question of law. Secondly, ''evidential burden', which may also be used in the sense of adducing evidence in order to establish a prima facie case upon which the accused must not have been guilty if he does not tender evidence to create a reasonable doubt.
40. On the basis of facts, evidences both documentary and oral, I am of the view that the motor accident claim-petitioners in this case have successfully established as to the standard of proof required in the Motor Accident Claims Tribunal in their case. The fact of accident is almost admitted as the appellant itself takes plea of contributory negligence and doesn't deny the factum of accident by the offending Motor vehicle. The certified copy of First Information Report, the post-mortem report, the chargesheet submitted by the Investigating Officer of the concerned police station, the site map prepared by the Investigating Officer are commutatively successfully proving the guilt of committing negligence and rash driving of the truck thereby hitting the Motor bike of the deceased which was on right side of the road and it was the Truck driver who came by sheer negligence and rash driving to the wrong side of the road and this caused the accident. As such, there is no contributory negligence. Learned Motor Accident Claims Tribunal did not find any evidence in rebuttal produced or adduced by the owner of the offending vehicle or his insurer-the present appellant-Oriental Insurance Company Ltd.
41. The argument made by learned counsel for the appellant contending on the fact from the record of lower court that the application moved by the Insurance Company under Section 170 of the Motor Vehicles Act was erroneously rejected by the learned Motor Accident Claims Tribunal.
42. Regarding argument by learned counsel for the appellant as to rejection of application moved under Section 170 of the Motor Vehicles Act, this would be relevant to quote Section 170 of the Motor Vehicles Act which is as under:
"170. Impleading insurer in certain cases.--Where in the course of any inquiry, the Claims Tribunal is satisfied that--
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made."
43. I perused the lower court record. The appellant-Oriental Insurance Company has already been impleaded in the Claim Petition as opposite party no. 3. Moreover, the owner of the offending vehicle (insured) is also impleaded. Both of them have filed their written statements. When the Insurance Company has already been impleaded as opposite party no. 3, then it had full right to contest the case.
44. In a Full Bench judgment of Allahabad High Court headed by Hon'ble Dr. Dhananjaya Yeshwant Chandrachud (as he then was the Chief Justice), Hon'ble Dilip Gupta, J, Hon'ble Pradeep Kumar Singh Baghel, J, while deciding the First Appeal From Order No. 2174 of 2014, United India Insurance Co Ltd Vs Smt Shashi Prabha Sharma & 4 Ors, Hon'ble Dr. Justice D.Y. Chandrachud observed as under:
"Where a claim is brought before the Tribunal under Section 166, the driver and owner have to be impleaded as respondents. The claimant may or may not implead the insurer as a party to the proceedings. However, sub-section (2) of Section 149 provides that no sum shall be payable by the insurer under sub-section (1) in respect of a judgment or award unless, before the commencement of the proceedings, the insurer had notice of the proceedings. The insurer to whom a notice of the proceedings is given, shall be entitled to be made a party thereto. Section 149 forms a component of Chapter XI which provides for insurance of motor vehicles against third party risks. Section 146 makes it obligatory to obtain an insurance policy covering third party risks. No person can allow or cause to allow a motor vehicle to be used in a public place without an insurance policy being in force in accordance with the requirements of the Chapter. Section 147 defines the requirements of such a policy and the limits of liability. If a judgment or award in respect of the liability which has to be covered under Section 147 (3) (b) is obtained against the insured, after a certificate of insurance is obtained, the insurer is obligated to pay the compensation payable to the person to whom the benefit of the decree enures, even though the insurer is entitled to or has actually cancelled or avoided the policy."
45. His Lordship Hon'ble Dr. Justice D.Y. Chandrachud further observed as under:
Two eventualities are contemplated in Section 170 in which the Tribunal may, in the course of its enquiry, direct that the insurer who may be liable in respect of the claim, shall be impleaded as a party to the proceedings. The first is, where the Tribunal is satisfied that there is a collusion between the claimant and the person against whom the claim is made. The second is, where the person against whom the claim has been made, has failed to contest the claim. Upon being impleaded, the insurer shall have, without prejudice to the provisions of sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
A Bench of three learned Judges of the Supreme Court in National Insurance Co Ltd Vs Nicolletta Rohtagi7, considered the question whether, in a situation where the insured had not preferred an appeal under Section 173, it would be open to the insurer to prefer an appeal against an award of the Tribunal questioning the quantum of compensation as well as the finding in regard to the negligence of the offending vehicle. The Supreme Court observed that under the provisions of Section 149 (2), the insurer was conferred the right to be made a party to the case and to defend it. The right being a creature of the statute, its content would depend upon the statutory provision. In that context, the Supreme Court observed as follows:
"...After the insurer has been made a party to a case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, he is entitled to defend the action on grounds enumerated in the sub-section, namely, sub-section (2) of Section 149 of 1988 Act, and no other ground is available to him. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other ground which is available to an insured or breach of any other conditions of the policy which do not find place in sub-section (2) of Section 149 of 1988 Act. If an insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer than what the statute has specifically provided for."
46. Discussing various case laws given by Hon'ble the Apex Court, the aforesaid Full Bench has conclusively held as under:
"The position as it emerges from the decisions of the two three Judge Bench judgments of the Supreme Court in Nicolletta Rohtagi and Shila Datta (supra) is as follows:
(I) Where the insurer has not been impleaded as a respondent to the claim proceedings and a notice is issued by the Tribunal as required by Section 149 (2), the position of the insurer is that of a mere noticee who can contest the proceeding only on one of the grounds available under sub-section (2);
(II) Under Section 170, the Tribunal can implead the insurer where, in the course of its enquiry, it is satisfied that (i) there is a collusion between the person making the claim and the person against whom the claim is made; or (ii) the person against whom the claim is made, has failed to contest the claim;
(III) Once the insurer is impleaded by the Tribunal on the satisfaction of the conditions specified in Section 170, the insurer has a right to contest the claim on grounds which are available to the insured or to a person against whom the claim has been made. In such a situation, where the award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the award on all available grounds including the issue of negligence or contributory negligence of the offending vehicle as well as on the quantum of compensation even if the insured has not filed an appeal. In such a situation, the insurer is not confined to contesting the appeal only on the statutory defences available under Section 149 (2); and (IV) Where the insurance company has already been impleaded as a respondent, either by virtue of its being impleaded as a party by the Tribunal under Section 170 [covered by (II) and (III) above] or as a party respondent by the claimants in the claim petition, it would be entitled to contest the claim petition by raising all grounds without being restricted to the statutory defences under Section 149 (2). Whatever be the reason or ground for the insurer being impleaded as a party, it is entitled to raise all contentions that are available to resist the claim, once it is a party respondent to the proceedings. Consequently, in the appeal, the insurer would not be restricted to contesting the award only on the basis of the statutory defences available under Section 149 (2) but can challenge the award on all grounds available to the insured or the person against whom the claim has been made."
47. On the basis of discussions made in the Full Bench judgment of our Court, in the present case, the plea of rejection of application under Section 170 of the Motor Vehicles Act by the learned Motor Accident Claims Tribunal, is of no force because statutorily when the appellant was already impleaded in the claim petition has full right to contest the claim petition on all the grounds in addition to those available under Section 149(2) of the Motor Vehicle Act. All the grounds which have been taken in the claim petition by filing written statement are discussed by the Tribunal. As such, the same cannot be raised afresh unless the opportunity of contest is not afforded by the Tribunal. There was no necessity to move application under Section 170 of the Motor Vehicles Act as opposite party nos. 1 and 2 (Devraj Singh and Ram Sumer) who have filed their written statements in the claim petition and arrayed in the appeal as respondent nos. 6 and 7, have contested their case with all the grounds of defence. No prejudice in any manner is caused.
48. Likewise, by filing written statement (paper no. 12-kha), the Oriental Insurance Company has also contested the claim case taking all the grounds of defence available to it.
49. In view of the discussions made hereinabove, there is no need to interfere with the judgment and award of the learned court below. The appeal is liable to be dismissed and it is hereby dismissed.
50. The judgment and award dated 26.04.2011 as well as order dated 23.03.2011, rejecting the application under Section 170 of the Motor Vehicles Act, 1988, preferred by the appellant in Motor Accident Claim Petition No. 232 of 2009, passed by Motor Accident Claims Tribunal/Additional District Judge, Court no. 6, Sultanpur, whereby, a compensation in favour of claimants-respondents to the tune of Rs. 4,17,500/- alongwith interest @ 7% per annum is awarded, is hereby confirmed.
51. Appellant is directed to pay the entire compensation amount as awarded by the learned Motor Accident Claims Tribunal at the rate of interest given therein, payable from the date of application till actual payment is made to the claimant-petitioners within one month from the date of judgment. Failing in compliance of the appellate order, the learned Motor Accident Claims Tribunal is directed to execute the recovery proceedings within one month thereafter to recover the awarded amount from the appellant-Oriental Insurance Company Ltd. in accordance with law and pay the same to the claimant-petitioners after adjusting the statutory deposit, if any made, during the pendency of appeal. Interim order, if any, shall stand vacated.
52. Let the lower court record be sent back.
Order Date : 12.02.2019 kkv/ [Vikas Kunvar Srivastav,J.]