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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
ICICI Lombard General Insurance Company Limited, Chandigarh - Appellant
Versus
Aditya S/O Sh. Anil Kumar and Ors.– Respondents
First Appeal from Order No. 5 of 2016
Decided On : 03-03-2022
Motor Vehicles Act - Section 173 – Civil Procedure Code, 1908 - Order 41 Rule 33 – Accident – Death – Compensation Awarded – Liability of insurance company – When liable - Claimants filed a claim petition under S.166 of Act, averring therein that deceased alongwith claimants was going from Mandi to Delhi in Bus being driven by respondent No. 5 herein, in a rash and negligent manner, due to which it collided with truck, deceased expired in the accident - It is averred that the accident took place due to rash and negligent driving on part of respondent No.5 herein.
Finding of the Court:
Order 41 Rule 33 CPC enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections - At this stage, learned counsel for appellant-Insurance Company argued that this Court has no power to award any extra amount/enhance amounts already awarded by learned Tribunal below, since no cross objections/ appeal has been filed by the claimants - Consequently in view of above, award passed but learned Tribunal below needs to be modified in following manner - So far interest rate awarded by learned Tribunal below is concerned, same calls for no interference - Impugned Award passed by learned Tribunal below is modified to aforesaid extent only.
Result: Appeal is partly allowed
JUDGMENT :
Instant appeal filed under S. 173 of the Motor Vehicles Act (hereinafter, ‘Act’) lays challenge to award dated 3.10.2015 passed by learned Motor Accident Claims Tribunal (II), Mandi, District Mandi, H.P. in MAC Petition No. 642/2013, whereby learned Tribunal below, while allowing claim petition having been filed by respondents Nos. 1 to 3/claimants, (hereinafter, ‘claimants’) saddled the appellant-insurance company with the liability to pay compensation to the tune of Rs.41,29,259/- alongwith interest at the rate of 7.5% per annum, to the claimants, from the date of filing of petition, till realization.
2. Precisely, the facts of the case, as emerge from the record, are that the claimants filed a claim petition under S.166 of the Act, averring therein that on 26.12.2010, deceased Seema Devi, alongwith claimants was going from Mandi to Delhi in Bus bearing registration No. HR-69-A-6158, being driven by respondent No. 5 herein, in a rash and negligent manner, due to which it collided with truck bearing registration No. HP-19-A-2268. Seema Devi, expired in the accident. It is averred that the accident took place due to rash and negligent driving on the part of respondent No.5 herein. It is further averred that the deceased Seema Devi was in network marketing with RMP Info-Tech Pvt. Ltd. and was earning Rs.40,000/- per month. It is also averred that claimants No.1 and 2 were being looked after by the deceased, as such, entitled for the compensation on account of death of the deceased.
3. Claim put forth by claimants came to be resisted by respondent No.4 by filing reply, wherein preliminary objections of locus-standi and maintainability have been taken. It is averred in the reply that the accident had not taken place due any fault of the driver of the bus. Respondent No.1 also stated in the reply, that since the bus in question was insured with respondent No.3, as such, it was liable to indemnify the claimants.
4. Respondent No. 5, while filing separate reply, took preliminary objections of maintainability, locus-standi, non-joinder and mis-joinder of necessary parties. On merit, he stated that the case has been wrongly registered against him and the accident had taken place due to rash and negligent driving on the part of the driver of the truck bearing registration No. HP-19-A-2268.
5. Appellant-Insurance Company, respondent No.3 before learned Tribunal below, while filing its reply, took preliminary objections of maintainability, non-joinder and mis-joinder of necessary parties. It is averred by the appellant-Insurance Company in its reply that the insurer of the Truck has not been made party in the petition. On merit, factum of accident has not been denied, but it is averred by the appellant-Insurance Company in its reply that the same was the result of rash and negligent driving on the part of the driver of the truck.
6. On the basis of pleadings of parties, learned Tribunal below framed following issues on 23.9.2011:
2. Whether respondent No. 2 was driving the vehicle in a rash and negligent manner which led to the accident? OPP
3. Whether the petitioners are entitled for compensation to the extent of Rs.20,00,000/-? OPP
4. Whether the petition is not maintainable? OPR
5. Whether the petition is bad for non-joinder and mis-joinder of necessary parties? OPR
6. Whether the petitioner has no locus-standi to file the present petition? OPR
7. Relief”
7. Subsequently vide impugned Award dated 3.10.2015, learned Tribunal below allowed the claim petition and awarded sum of Rs.41,29,259/- as compensation in favour of claimants Nos. 1 and 2 only, alongwith interest at the rate of 7.5% per annum from the date of petition till realization. Si
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