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2017 Supreme(All) 313
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : ATTAU RAHMAN MASOODI, J.
ORIENTAL INSURANCE CO. LTD. LKO. ....Appellant
Versus
Smt. DAYA DEVI AND OTHERS ....Respondents
(First Appeal From Order No. 504 of 2014, decided on 10th March, 2017)
Counsel :
U.P.S. Kushwaha for the Appellant; Akhter Abbas, Km. Vishwa Mohini and Sarvesh Kumar Pandey for the Respondents.
Headnote:(A) Motor Vehicles Act, 1988—Sections 169 (1) and 169 (2)—U.P. Motor Vehicles Rules, 1998—Rule 212—Evidence—Method of recording—Examination-in-chief on affidavit—Validity—By adopting such a procedure course of trial would remain summary—Once affidavits for examination-in-chief are filed and entertained it is open to parties to cross-examine a witness—There is nothing objectionable about such a procedure even if corresponding provisions of CPC may not be applicable. [Para 5]
(B) Motor Vehicles Act, 1988—Sections 103 (1A) and 217(2)(b)—Permit—Buses plied on basis of old permits—Illegality/Legality—New permits are issued as per new Rules and buses plied on basis of old permits cater public need—Do not indulge into any violation of law unless proved to contrary. [Para 12]
(C) Motor Vehicles Act, 1988—Sections 2(30), 168, 157—Motor Vehicle—Owner of—Liability under cover of insurance policy—UPSRTC stepped into shoes of owner by virtue of Section 2 (30)—Hence UPSRTC in view of Section 157 becomes liable to pay. [Para 13]
Result; Appeal Dismissed.
Hon’ble Attau Rahman Masoodi, J.—Heard Sri U.P.S. Kushwaha, learned counsel for the appellant and Sri Akhter Abbas, learned counsel who has put in appearance on behalf of UPSRTC. Sri Sarvesh Kumar Pandey, learned counsel represented the claimants-respondent Nos. 1 and 2. Respondent Nos. 3 and 4 have remained unrepresented, despite service being sufficient.
2. Sri U.P.S. Kushwaha, learned counsel in the present appeal questioning the correctness of impugned judgement and award rendered by Motor Accident Claims Tribunal in MACP No. 12/2013, has essentially argued on the question of fixation of liability by the Tribunal upon the insurer and has thus challenged the validity of impugned award on the ground that the Tribunal while adjudicating upon the case has adopted an invalid procedure which is beyond the scope of Motor Vehicles Act, 1988 (hereinafter referred to as the Act).
3. Insofar as the ground of procedure adopted by the Tribunal is concerned, it was argued that invariably Motor Accident Claims Tribunals entertain examination-in-chief through affidavits which is not permissible as per the provisions contained in U.P. Motor Vehicles Rules, 1998 when read in the light of Section 169 (1) and 169 (2) of the Act.
4. Learned counsel for the appellant while inviting attention of this Court to Rule 212 of the U.P. Motor Vehicles Rules, 1998 in the light of Section 169, has submitted that once the statutory rules prescribe a particular mode of entertaining and recording evidence, there is no scope left for the Tribunal to record evidence in any manner except as prescribed.
5. To appreciate the argument so advanced, it would be necessary to refer to Section 169 of the Act as well as the Rule-212 mentioned above, which for ready reference are 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.”
“Rule 212. Method of recording evidence.—The Claims Tribunal shall, as examination of a party or a witness proceeds, make a brief memorandum of the substance of what is deposed and such memorandum shall be written and signed by the Claims Tribunal and shall form apart of the record:
Provided that the evidence of any medical witness shall, as nearly as may be, be taken down word for word :
Provided further that where the claims tribunal is unable to make a memorandum it shall cause the reason of such inability to be recorded and shall cause the memorandum to be made in writing from its dictation.”
6. Learned counsel for UPSRTC, on the other hand, at the very threshold of his arguments in reply, placed reliance upon a Full Bench judgement of this Court in the case of National Insurance Company Ltd. v. Smt. Pushpa Devi and others, 2016(11) ADJ (LB)(FB), wherein the Court has elaborately dealt with the issue as to the procedure which is applicable and may be adhered to, while adjudicating upon the claims instituted before the Tribunals. Para-21 of the Full Bench judgement being relevant is extracted below:
“21. Thus, we are of the o
