Allahabad High Court
National Insurance Co. Ltd. vs Jai Prakash Tripathi And Anr. on 28 January, 2004
Equivalent citations: II(2004)ACC677, 2004ACJ1377
Author: A.K. Yog
Bench: A.K. Yog
JUDGMENT
A.K. Yog and V.N. Singh, JJ.
1. Heard Mr. Anand Kumar Sinha, on behalf of the appellant as well as Mr. M.D. Misra, on behalf of claimants-respondents.
2. Alok Kumar Tripathi, son of Jai Prakash Tripathi claimant/respondent No. 1, aged about 18 years and student of B.A. 1st year in Evening Christian College, Allahabad, while he was going on road near Railway Bridge of Indian Oil, Jhalwa Road, Police Station, Dhomanganj, Allahabad was hit by a tanker registration No. USB 4634 and died while he was taken to the hospital. A copy of the claim petition has been annexed as Annexure 1 to the affidavit sworn by K.K. Singh, employee of National Insurance Co. Ltd. in support of the stay application filed in the present first appeal from order.
3. In column No. 7 of the claim petition, names of the claimants have been disclosed as:
(1) Jai Prakash Tripathi aged 37 years (father);
(2) Suman Tripathi aged 35 years (mother);
(3) Renu Tripathi aged 16 years (sister);
(4) Amit Kumar Tripathi aged 13 years (brother).
4. F.I.R. was lodged on the same day, which was registered as Crime No. 441 of 1998 under sections 279/304A, Indian Penal Code by the father of the deceased. A decree has been placed before us, which shows the owner of the tanker and National Insurance Co. Ltd. were the opposite parties. The impugned judgment and award of Motor Accidents Claims Tribunal dated 31.10.2003 also disclosed the owner of the vehicle and insurance company referred to above filed their written statement paper No. l0 ka and 12 ka.
5. The parties led evidence as desired and contested the matter. The concerned Tribunal framed four issues, namely:
(i) Whether the incident took place on 8.9.1998 at 8 a.m. as mentioned in the claim petition and Alok Kumar Tripathi (deceased) son of Jai Prakash Tripathi, respondent No. 1, was hit by tanker No. USB 4634 while it was driven by its driver negligently and rashly?
(ii) Whether the aforesaid vehicle was insured with the appellant National Insurance Co. Ltd.?
(iii) Whether driver had valid licence at the time of accident in question?
(iv) Whether claimants are entitled to any relief? If so, to what extent and from whom?
6. The Tribunal held that the claimants have successfully proved that the tanker was being driven by the driver rashly and negligently at the time of fatal accident and there was no negligence of the deceased Alok Kumar Tripathi, who died because of the injuries received during the said accident. The insurance company made no effort to prove that insurance policy was not genuine or valid and tanker was not insured at the time of accident; the driver possessed a valid licence at the time of accident; lastly relying upon the two decisions referred in the impugned award, it took note that father of the deceased boy is a practising lawyer in the High Court, deceased boy possessed N.C.C. (B) certificate; he had learnt English shorthand and typing during the period 10.3.1998 to 7.9.1998 and that he was an able-bodied young boy and accordingly awarded a sum of Rs. 5,00,000 as compensation, out of which Rs. 1,00,000 each apportioned to the minor brother and sister and Rs. 1,50,000 each to the father and mother along with 8 per cent interest per annum, from the date of filing of claim till its actual payment.
7. In the instant case, insurance company appellant did not file application under Section 170 of Motor Vehicles Act before the Tribunal. This fact is not denied and rather admitted by the learned counsel for appellant insurance company that no application was filed.
8. At the outset, learned counsel for appellant submitted that mother and minor sister and brother of the deceased were not shown as claimants in the claim petition. Hence, the compensation could not be awarded in their favour. As already noted above, names of the aforesaid persons as dependent has been shown in column No. 7 in the petition.
9. Section 166 of the Motor Vehicles Act, 1988 contemplates that application under Section 166(1) may be made where death has resulted from the accident by all or any of the legal representatives of the deceased as the case may be. Proviso to Section 166(1) contemplates that all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not joined, shall be impleaded as respondents to the application.
10. The contention of the appellant insurance company cannot be accepted for two reasons, firstly father of the deceased had filed the claim petition indicating the names of other dependants/legal represen-tatives in column No. 7 as already indicated above and secondly, the proviso which requires such legal representatives, who has not joined as claimants to be impleaded as respondents to the application is procedural. Added to it in the facts and circumstances of the instant case, we find that no objection of any kind was taken by any of the opposite parties earlier.
11. It is also well settled in law that benefit of decree passed in favour of one may enure to the benefit of others. Considering that, we are at present dealing with compensation under the Motor Vehicles Act which is social legislation, we adopt liberal approach and hold that the fact that mother and minor brother and sister were not impleaded as respondent did not vitiate the proceedings. Expression 'shall' in proviso to Sub-section (d) be read as 'may'. The only argument raised on behalf of the appellant insurance company before us is regarding quantum of compensation not being just/or reasonable.
12. The learned counsel for appellant referred to Section 168 of the Act wherein the relevant words used are, "the Claims Tribunal shall, ...after giving...an opportunity of being heard, hold an inquiry into the claim...may make an award determining the amount of compensation, which appears to it to be just and specifying the person or persons to whom compensation shall be paid..."
13. The learned counsel for caveator Mr. M.D. Misra, however, objected to the aforesaid argument being raised on behalf of the appellant as a preliminary objection pointing out that appeal at the instance of insurance company shall not be maintainable on the records contained in the memo of appeal in view of Section 149(2) which restrict the grounds which may be available to the insurance company when the insurance company had not obtained permission of the Tribunal by filing a petition under Section 170 of the Motor Vehicles Act to contest the matter on merits.
14. The learned counsel for the appellant failed to point out any ground which may be permissible in law. In view of the embargo placed by Section 149 of the Act upon the insurance company, the question whether quantum of compensation awarded by the concerned Tribunal is excessive is not open to the appellant insurance company. The present appellant did not file application under Section 170 of the Act. It has to confine to that ground contemplated under Section 149 of the Act.
In view of the above, this contention of the appellant insurance company fails.
In view of the above discussion, we find that present first appeal from order is devoid of merit. It is, accordingly, dismissed. No order as to costs.