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2016 Supreme(HP) 2411
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIVEK SINGH THAKUR, J.
ICICI Lombard General Insurance Co. - Petitioner
Versus
Bimla Devi and others - Respondents
CWP No. 3922 of 2010
Decided On : 08-11-2016
For the Petitioner: Mr. Jagdish Thakur.
For the Respondents:Mr. Karan Singh Kanwar, Mr. Janesh Gupta, Advocate, vice Mr. I.N. Mehta.
The court's discretion to adjudicate a dispute on merits in the interest of justice, despite the availability of alternative remedies, and the reassessment of compensatory amounts based on the claimant's income and disability percentage.
Headnote:
Insurance Company - Motor Accident Claims - Motor Vehicles Act, 1988 - Section 173, Article 226/227 of the Constitution - Soma Devi's case, New India Assurance Co. Ltd. Vs. Prem Chand - The court discussed the maintainability of the present petition under Article 226/227 of the Constitution in view of the provisions of the Motor Vehicles Act, 1988 and the precedents set by Soma Devi's case and New India Assurance Co. Ltd. Vs. Prem Chand. The court exercised its jurisdiction under Article 226 of the Constitution to decide the petition on merits in the interest of justice and for the benefit of the claimant.
Fact of the Case:
The petitioner, an Insurance Company, challenged the award passed by the Motor Accident Claims Tribunal (MACT) on the ground of perversity. The respondent, a claimant, had been awarded compensation for disability suffered in a bus accident. The petitioner contended that the claimant's income and disability percentage were incorrectly assessed.
Finding of the Court:
The court exercised its jurisdiction under Article 226 of the Constitution to decide the petition on merits in the interest of justice and for the benefit of the claimant, despite the availability of alternative remedies under the Motor Vehicles Act. The court modified the impugned award by reassessing the claimant's income, disability, and other compensatory amounts, and adjusted the interest rate on the compensation.
Issues: The issues involved the maintainability of the petition under Article 226/227 of the Constitution, the assessment of the claimant's income and disability percentage, and the interest rate on the compensation.
Ratio Decidendi: The court exercised its discretion to adjudicate the dispute on merits in the interest of justice and for the benefit of the claimant, despite the availability of alternative remedies under the Motor Vehicles Act. The court reassessed the claimant's income, disability, and other compensatory amounts, and adjusted the interest rate on the compensation.
Final Decision: The court modified the impugned award by reassessing the claimant's income, disability, and other compensatory amounts, and adjusted the interest rate on the compensation. The petition was decided in favor of the claimant.
JUDGMENT :
Vivek Singh Thakur, J.
Present petition has been filed by petitioner Insurance Company assailing the award dated 9.3.2010, passed by the Motor Accident Claims Tribunal-II, Solan (hereinafter referred to as the MACT) in MAC Petition No. 17-NL/2 of 2009, vide which respondent No. 1/claimant has been awarded compensation of Rs. 10,00,000/- for her disability suffered on account of accident dated 11.12.2008 during her travel in Bus No. HP-64-4697 owned by respondent No. 2 and being driven by respondent No. 3.
2. I have heard learned counsel for the parties and perused documents placed on record.
3. Learned counsel for petitioner-Company submits that in present petition impugned award has been assailed on the ground of perversity and in view of ratio laid down by this Court in National Insurance Company Ltd. Vs. Soma Devi 2003 ACJ 1919 and New India Assurance Co. Ltd. Vs. Prem Chand and others, 2008 (1) ACJ 679, present petition is maintainable against the award passed by the MACT.
4. In Soma Devi’s case, referred supra, Full Bench of this Court has held as under:-
“15. It, therefore, becomes abundantly clear that in all such like cases where the award on the face of it is a perversity, or is based on fraud, and the insurance company has no remedy under the Motor Vehicles Act of either challenging the award in appeal or being either to have it recalled or reviewed by the Tribunal itself, the power of judicial review by this Court in the exercise of its extraordinary jurisdiction under Articles 226/227 of the Constitution can always be invoked and exercised by this Court in dispensing justice to the parties.
16. For the foregoing reasons, therefore, while dealing with the reference made to us vide single Bench order dated 18.7.2003, we hold that with respect to an insurer, if it challenges the award passed by the Motor Accidents Claims Tribunal only on the ground of compensation being high, excessive or unreasonable, in a petition filed under Articles 226/227 of the Constitution, such a petition in view of Section 173 of Motor Vehicles Act, 1988 is not maintainable. This was the limited, rather the only question of law, which was referred to us for consideration and we have answered it accordingly. All the writ petitions shall now be listed before the appropriate single Benches for disposal according to law.
Reference answered and disposed of.”
5. Following ratio of law laid down by Full Bench in Soma Devi’s case, Division Bench of this Court in Prem Chand’s case supra had entertained petition under Article 226 of Constitution of India on the ground of perversity with following observations:-
“5. We are bound by the decision of the Full Bench of this court and according to us the only two grounds on which the award passed by Motor Accidents Claims Tribunal can be challenged in a writ petition by the insurance company are that the award is perverse or that it is based on fraud. In the present case, there is no allegation of fraud and the only allegation is that the award is perverse.”
6. It is submitted on behalf of petitioner that at the time of filing of present petition, petitioner Insurance Company had limited right to assail the impugned award, as present petition has been filed prior to pronouncement of Hon’ble Supreme Court in United India Insurance Company Ltd. Vs. Shila Datta, reported in (2011) 10 SCC 509 and therefore, petitioner was not having any alternative remedy to assail quantum of compensation awarded in impugned award, rather only available remedy to petitioner was present petition and thus petition be decided on merit.
7. Learned counsel for respondent submits that accident had occurred in the year 2008 and respondent No. 1/claimant is waiting for her lawful claim for last eight years. Claim petition was also decided in the year 2010 and for more than last six years, present petition is pending in this Court an
