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2017 Supreme(MP) 519
IN THE HIGH COURT OF MADHYA PRADESH
S.K. Awasthi, J.
Gangaram v. State of M.P. and others
Miscellaneous Appeal No.96 and 98 of 2006 (Gwalior); against award dated 4.10.2015 passed by Motor Accidents Claims Tribunal, Morena in claim case No.26/2003 and 27/2003. Decided on 28.8.2017
Raman Tiwari for appellants in both appeals;
None for respondents No.1 in both appeals; Mahesh Goyal for respondents No.2 and 3 in both appeals.
Headnote:(1) Motor Vehicles Act, 1988 -- Ss.173, 140 and 2(30) -- Evidence Act, 1872 -- S.3 -- Civil P.C. 1908 -- O.1R.10 -- appeal against award -- CMO Municipal Council deputed driver of tractor involved in accident -- on mere statement -- it cannot be believed that he was not driving offending vehicle -- doctrine of non-joinder or misjoinder of parties does not apply to claim proceedings -- claimants cannot be made to suffer for mistake of their counsel -- appellants not obliged to make municipal council as party in claim petition -- trial Court committed error in dismissing claim petition amount under heads of pain and suffering special diet transportation expenses and lost of income -- appellant Gangaram is entitled to get Rs.78,500/- instead of Rs. 58,000/- and Ashok Kumar is for Rs. 95,000/- instead of Rs. 66,000/-as compensation -- respondents No.2 and 3 shall be jointly or severally liable to pay -- appeals allowed in part.
Held : The respondents have not examined the CMO, Municipal Council, Morena to controvert that actually Sobharam was not the driver of the vehicle and he has not issued the letter (Exh. P-47) , therefore, on the mere statement of Sobharam, it cannot be believed that he was not driving the offending vehicle, thus, the Tribunal has committed error in holding that it is not proved that who was the driver of the offending vehicle at the time of accident. It is also clear from the evidence of appellants that the vehicle was being driven rashly and negligently by the driver Sobharam.
Section 166 is not a civil suit and the provision of Order 1 rule 10 is not applicable in the motor accident claim case.
Hence, it is clear that section 2(30) of the Act, appellants were not obliged to make Municipal Council, Morena as party in the claim petition, therefore, the trial Court has committed error in dismissing the claim petition.
(2) Civil P.C. 1908 -- O.1 Rr.9 and 10 -- non joinder of parties -- claim case -- doctrine of non-joinder or misjoinder of parties does not apply to proceedings under -- if counsel of claimants not arrayed Municipal Council as party -- then claimants cannot be made to suffer for mistake of their counsel.
Held : The doctrine of non-joiner or misjoinder of parties does not apply to the proceeding initiated under section 166 of the Motor Vehicles Act 1988. If the counsel of the claimants was not arrayed the Municipal Counsel Morena as party, then the claimants cannot be made to suffer for the mistake of their counsel. AIR 1981 Ori.123 relied on.
(3) Evidence Act, 1872 -- S.3 -- claim case -- appeal -- respondents not examined CMO to controvert that Sobharam was not driver of vehicle -- and letter not issued by him -- therefore, on mere statement cannot be believed that he was not driving offending vehicle -- Tribunal committed error in holding that -- it is not proved that who was driver at time of accident -- it is clear that vehicle was being driven rashly negligently by Sobharam driver. [Para 12
¼1½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 173] 140 rFkk 2¼30½ & lk{; vf/kfu;e] 1872 & /kkjk 3 & flfoy izfdz;k lafgrk] 1908 & vkŒ 1 fuŒ 10 & vf/kfu.kZ; ds fo:} vihy & eq[; uxj ikfydk vf/kdkjh] uxjikfydk ifj"kn~ esa nq?kZVuk esa varxzZLr VªSDVj ds pkyd dh izfrfu;qfDr dh & ek= dFku ds vk/kkj ij & ;g fo'okl ugha fd;k tk ldrk fd og mYya?kudkjh ;ku ugha pyk jgk Fkk & i{kdkjksa ds vla;kstu ;k dqla;kstu dk fl}kar nkos dh izfdz;k ij ykxw ugha gksrk gS & nkok djus okys dks vius dkmUlsy dh =qfV dh Hkqxrus ds fy, ugha NksM+k tk ldrk & vihykFkhZx.k uxjikfydk ifj"kn~ dks nkok ;kfpdk esa i{kdkj cukus ds fy, ck/; ugha & fopkj.k U;k;ky; us nkok ;kfpdk [kkfjt djus esa =qfV dkfjr dh vf/kdj.k us d"V rFkk fo'ks"k [kqjkd] vkokxeu [kpZ rFkk vk; ds uqDlku ds 'kh"kZ ds v/khu fdlh jde dk fu/kkZj.k ugha fd;k & vihykFkhZ xaxkjke :i;s 58]000@& ds LFkku ij :i;s 78]500@& rFkk v'kksd dqekj :i;s 66]000@& ds LFkku ij 95]000@& izfrdj ds :i esa izkIr djus ds gd~nkj gSa & izR;FkhZx.k dzŒ 2 rFkk 3 lkewfgd :i ls ;k vyx&vyx vnk djus ds fy, mRrjnk;h gS & vihysa Hkkxr% LohdkjA
vfHkfu/kkZfjr % izR;FkhZx.k us eq[; uxjikfydk vf/kdkjh uxjikfydk ifj"k~n eqjSuk dk bldk [kaMu djus ds fy, ijh{k.k ugha fd;k fd okLro esa 'kksHkkjke ml okgu dk pkyd ugha Fkk rFkk mlus i= ¼izn'kZ ih@47½ tkjh ugha fd;kA blfy, ek= 'kksHkkjke ds dFku ij fo'okl ugha fd;k tk ldrk fd og mYya?kudkjh ;ku ugha pyk jgk Fkk bl izdkj izkf/kdj.k us ;s vfHkfu/kkZfjr djus esa =qfV dkfjr dh fd ;g fl} ugha fd nq?kZVuk ds le; vijk/k 'kkfey ;ku dk pkyd dkSu FkkA vihykFkhZx.k dh vfHklk{; ls ;g Hkh Li"V gS fd ;ku pkyd 'kksHkkjke }kjk rsth o ykijokgh }kjk pyk;k tk jgk FkkA
/kkjk 166 ds v/khu okn flfoy okn ugha gS rFkk vkΠ1 fuΠ10 ds mica/k eksVj nq?kZVuk nkos ds ekeys esa ykxw ugha gSA
blfy,] ;g Li"V gS fd vf/kfu;e dh /kkjk 2¼30½ ds v/khu vihykFkhZx.k nkok ;kfpdk esa uxjikfydk ifj"k~n dks i{kdkj ds :i esa tksM+us ds fy, ck/; ugha gSA blfy, fopkj.k U;k;ky; us nkok ;kfpdk [kkfjt djus esa =qfV dkfjr dhA
¼2½ flfoy izfdz;k lafgrk] 1908 & vkŒ 1 fuŒ 9 rFkk 10 i{kdkjksa dk vla;kstu & nkok izdj.k & mica/kksa ds v/khu i{kdkjksa ds vla;kstu ;k dqla;kstu dk fl}kar dk;Zokgh esa ykxw ugha & ;fn nkosnkjksa ds dkmUlsy us uxjikfydk ifj"k~n dks i{kdkj ds :i esa ugha tksM+k & rc nkosnkjksa dks muds dkmUlsy dh Hkwy dh Hkqxrus ds fy, ugha NksM+k tk ldrkA
vfHkfu/kkZfjr % i{kdkjksa ds vla;kstu ;k dqla;kstu dk fl}kar eksVj ;ku vf/kfu;e] 1988 dh /kkjk 166 ds v/khu izkjaHk dh xbZ dk;Zokgh esa ykxw ugha gksrkA ;fn nkosnkjksa ds dkmUlsy }kjk uxjikfydk dk ifj"k~n eqjSuk dks i{kdkj ds :i esa ugha tksM+k x;k rc nkosnkjksa ds dkmUlsy }kjk dh xbZ Hkwy ds fy, nkonkjksa dks ugha NksM+k tk ldrkA ;g Hkh izLrqr fd;k fd eq[; uxjikfydk vf/kdkjh uxj ifj"k~n eqjSuk dks nkok ;kfpdk esa i{kdkj cuk;k x;kA blfy, ;g ugha dgk tk ldrk fd nkok ;kfpdk esa mfpr i{kdkj u tksM+us ls nkok ;kfpdk izHkkfor gSA , vkb vkj 1981 mM+hlk 123 voyafcrA
¼3½ lk{; vf/kfu;e] 1872 & /kkjk 3 & nkok izdj.k & vihy & izR;FkhZx.k us eq[; uxjikfyd vf/kdkjh dks mldk [kaMu djus ds fy, ijh{k.k ugha fd;k fd 'kksHkkjke ml ;ku dk pkyd ugha Fkk & rFkk i= mlds }kjk tkjh ugha fd;k x;k & blfy, vfHkdFku ij fo'okl ugha fd;k tk ldrk fd og mYya?kdkjh ;ku ugha pyk jgk Fkk vf/kdj.k us ;g vfHkfu/kkZfjr djus esa =qfV dh fd ;g fl} ugha fd nq?kZVuk ds le; pkyd dkSu Fkk & ;g Li"V gS fd ;ku pkyd 'kksHkkjke }kjk rsth o ykijokgh ls pyk;k tk jgk FkkA ¼iSjk 12½
1. Since both the appeals, arise out of the same accident and challenging the same award, therefore, the same are being finally disposed of by common judgment.
2. The appellants have filed these appeals under section 173 of the Motor Vehicles Act, 1988 (for brevity, the 'Act') against the award dated 4.10.2015 passed by the Motor Accidents Claims Tribunal, Morena (for brevity, the 'Tribunal') in Claim Cases No.26/2003 and 27/2003, whereby dismissing their claim petitions for not impleading the Municipal Council Morena as party in the claim petitions.
3. Brief facts of the case are that on 17.1.2001 at about 7:30 am, Gangaram along with Ashok Kumar was going from MS Road towards Ramjanki Mandir, Morena by a motor cycle bearing registration No.MP06 H4375. Gangaram was driving it while Ashok Kumar was the pillion rider. When they reached near Ramjanki temple, at that time driver of the offending tractor bearing registration number CIG 2916 drove the tractor rashly and negligently and dashed against the motor cycle due to which the claimants sustained grievous injuries. The incident was reported to the Police Station Kotwali, Morena and an FIR was registered at Crime No.702/2001 for the offence punishable under sections 279, 337 and 338 of IPC. The claimants were brought to District Hospital Morena where they were hospitalized for a period from 17.10.2001 to 24.10.2001. After that they were shifted to Gwalior where they were treated by Dr. Ravi Goyal. Gangaram sustained fracture on his right thigh and he was operated. Due to these injuries, he sustained permanent disability and he is unable to perform his normal work. The applicant Ashok received grievous injury in the right hand and femur bone.
4. Respondents denied the alleged accident and averments made in the claim petition.
5. The Tribunal after framing the issues recorded evidence of both the parties and tested the claim and after appreciation of evidence the Tribunal found proved the accident and found that the claimants sustained grievous injuries in the accident, therefore, Gangaram is entitled to receive Rs.58,000/- and Ashok is entitled to receive Rs.66,000/- as compensation, but Tribunal has dismissed the claim petition on the ground that the tractor belongs to Municipal Council Morena and same has not been made party in the claim petition in spite of the Court order dated 9.12.2002.
6. Being aggrieved by the findings recorded by the Tribunal, the appellant has preferred this appeal.
7. Learned counsel for the appellants submitted that the Tribunal has wrongly dismissed the claim of the appellants for want of impleading necessary party. He further contended that the Tribunal came to the conclusion that the appellants suffered permanent disabilities, but in spite of this, the Tribunal has assessed only Rs.58,000/- as compensation with respect to Gangaram and Rs.66,000/- as compensation with respect to Ashok Kumar. Hence, he prayed that impugned award is on lower side and deserves to be enhanced.
8. On the other hand, learned counsel for the the respondents No.2 and 3 supported the impugned award and submitted that the same is based on sound reasonings and is in accordance with the provisions of law.
9. I have taken note of rival contentions canvassed on behalf of the parties and perused the record in their context.
10. In this case, the questions emerge for determination are (I) Whether at the time of accident the driver Sobharam s/o Khubiram was driving the offending vehicle (tractor No. CIG 2916); (ii) Whether the Tribunal was right in dismissing the claim petition on account of non-joiner of necessary party, i.e. Municipal Council Morena, and (iii)Whether the amount of compensation as assessed by the Tribunal requires enhancement?
11. With regard to first question, in the present case, the Tribunal has concluded that it is proved that the accident has been occurred by tractor bearing registration number CIG 2196 which belongs to Municipal Council Morena, but i
