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2020 Supreme(All) 224
IN THE HIGH COURT OF ALLAHABAD
Jaspreet Singh, J.
The New India Assurane Co. Ltd. thru A.M., Legal Cell – Appellant
Versus
Smt. Neelam Jaiswal & Ors. – Respondents
First Appeal From Order No. 366 of 2005
Decided On : 28-01-2020
For the Appellant : Anand Mohan, G.S. Chadha, H.S. Chadha, I.P.Singh Chadha
For the Respondent: Ravindra Pratap Singh
Point of Law:
Usually power under Rule 33 is exercised when portion of decree appealed against or portion of decree held liable to be set aside or interfered by appellate court is so inseparably connected with portion not appealed against or left untouched that for reason of latter portion being left untouched either injustice would result or inconsistent decrees would follow.
Headnote:
Motor Vehicle Act, 1988 – Sections 163-A, 166, 140 – Code of Civil Procedure, 1908 – Order 41 Rule 33, Order 41 Rule 22 –Claim petition was filed before Motor Accident Claims Tribunal/Additional District Judge, with averments that deceased was riding his scooter – It is pleaded truck which was being driven rashly and negligently hit scooter of deceased who fell and sustained grievous injuries result he died on spot –Accident was reported to police concerned by real brother of deceased and case was registered in respect thereto –Total claim compensation of rupees eleven lakh forty seven thousand one hundred and twenty was claimed –Owner of offending truck filed his written statement wherein he pleaded that his vehicle was duly insured which was valid – It also pleaded that vehicle had valid permit and its driver also had effective and valid licence –Substantial plea raised by truck owner was to effect that on date of accident his truck was at Muzaffar Nagar and that in FIR also no truck number was mentioned and that police also filed final report and in view thereof involvement of truck was questionable while specific plea was taken that no accident had occurred from aforesaid truck –Tribunal after considering evidence concluded that accident occurred on account of rash and negligent driving of truck wherein deceased received injuries and ultimately he expired –Tribunal also found that aforesaid truck was duly insured – Its driver had valid licence and all necessary papers, accordingly upon assessing compensation, it awarded sum of rupees three lakh forty seven thousand alongwith six per cent interest by means of award – It is this award which has been assailed in instant appeal – Held, This Court is also fortified in its view in light of judgment of Apex Court in case of Lakshmanan and others Vs. G. Ayyasamy reported in 2016 (13) SCC 165 – Judgment/award passed by Motor Accident Claim Tribunal, Court is satisfied that same does not suffer from any error and is based on material evidence available on record and is accordingly affirmed – Appeal Dismissed. (Paras 33, 34, 35)
Facts of Case:
Claim petition was filed before Motor Accident Claims Tribunal/Additional District Judge, with averments that deceased was riding his scooter – It is pleaded truck which was being driven rashly and negligently hit scooter of deceased who fell and sustained grievous injuries result he died on spot – Accident was reported to police concerned by real brother of deceased and case was registered in respect thereto – Total claim compensation of rupees eleven lakh forty seven thousand one hundred and twenty was claimed – Owner of offending truck filed his written statement wherein he pleaded that his vehicle was duly insured which was valid – It also pleaded that vehicle had valid permit and its driver also had effective and valid licence –Substantial plea raised by truck owner was to effect that on date of accident his truck was at Muzaffar Nagar and that in FIR also no truck number was mentioned and that police also filed final report and in view thereof involvement of truck was questionable while specific plea was taken that no accident had occurred from aforesaid truck – Tribunal after considering evidence concluded that accident occurred on account of rash and negligent driving of truck wherein deceased received injuries and ultimately he expired –Tribunal also found that aforesaid truck was duly insured – Its driver had valid licence and all necessary papers, accordingly upon assessing compensation, it awarded sum of rupees three lakh forty seven thousand alongwith six per cent interest by means of award – It is this award which has been assailed in instant appeal.
Findings of Court:
This Court is also fortified in its view in light of judgment of Apex Court in case of Lakshmanan and others Vs. G. Ayyasamy reported in 2016 (13) SCC 165 – Judgment/award passed by Motor Accident Claim Tribunal, Court is satisfied that same does not suffer from any error and is based on material evidence available on record and is accordingly affirmed.
Result: Appeal Dismissed
JUDGMENT :
1. Heard Shri I. P. Chadha learned counsel for the appellant and Shri R. P. Singh learned counsel appearing for the claimant-respondents no.1, 2 and 3. None has put in appearance on behalf of the respondents no.4 to 6 and accordingly the appeal has been heard in their absence.
2. The insurance company has preferred the instant appeal being aggrieved against the award dated 18.01.2005 passed in Claim Petition No.442 of 1998 by the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Barabanki wherein a sum of rupees three lakh forty seven thousand alongwith six per cent interest per annum has been awarded in favour of the claimant-respondents no.1, 2 and 3.
3. The submission of the learned counsel for the appellant is two fold:-
(i) The claim petition was bad at the very inception since it mentioned that it was being filed under Section 163-A, 166, 140 of the Motor Vehicles Act, 1988. Thus, it has been urged that the claimants could not have simultaneously pressed their claim petition in the aforesaid sections and they had to elect whether it was under 163-A or under Section 166. This not having been done, has vitiated the proceedings and accordingly the award is bad.
(ii) It has also been urged that a specific plea was taken by the offending truck owner that his truck was not involved in the accident which is said to have occurred within the jurisdiction of Barabanki while at the alleged given time and date of the accident the said truck was stationed at Muzaffar Nagar. It has also been stated that in the FIR which was lodged post the accident. The truck number was not mentioned nor the police upon investigation found the involvement of the aforesaid truck. Consequently, the finding given by the tribunal in respect of the truck being involved in the accident also suffers from error and for the said reason, the award cannot be sustained.
4. Per contra Shri R. P. Singh learned counsel for the respondents no.1, 2 and 3 has submitted that merely by quoting wrong provisions under which the claim petition is filed will not denude the jurisdiction of the Authority of the Claims Tribunal.
5. In light of the pleadings and the evidence led it was clear in the mind of the parties that the claim petition was proceeded under Section 166 and merely by incorporating Section 163-A in the nomenclature of the claim petition alongwith Section 166-A will not make claim petition to be bad and the aforesaid submissions of the learned counsel for the appellant does not merit consideration.
6. It has further been submitted by Shri R.P.Singh that a specific issue was framed and in light thereof the party had to lead evidence. Since the owner of the truck had raised a plea in his written statement that on the date and time of the alleged accident the aforesaid truck was at Muzaffar Nagar, this plea was required to be proved by the truck owner. However, he led no evidence on the aforesaid point and therefore merely by taking a plea in the written statement will not partake the nature of evidence before the tribunal, to consider the aforesaid plea as having been proved and thus the other ground as raised by the learned counsel for the appellant also has no force.
7. The Court has heard the learned counsel for the parties and also perused the record.
8. Briefly, the facts giving rise to the aforesaid appeal are, that the claim petition bearing No.442 of 1998 was filed before the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Barabanki with the averments that Ashok Kumar Jaiswal on 10.11.1998 was riding his scooter bearing number UME 8120 and was moving towards Zaidpur. It is pleaded that while he had reached Phalahri Chauraha in police station Barabanki, a truck bearing number HR-37/2901 which was being driven rashly and negligently hit the scooter of Ashok Kumar Jaiswal who fell and sustained grievous injuries as a result he died on the spot. The accident was reported to the police concerned by the real brother o
