Back
SIKKIM HIGH COURT
S.P. Wangdi, J.
The Branch Manager, New India
Assurance Co. Ltd. —Petitioner
versus
Meena Devi & Ors. —Respondents
Civil Revision Petition No. 4 of 2009 with Civil Revision Petition No. 08 of 2009
Decided on : 11.12.09
Civil Revision Petition No. 04/2009
For the Petitioner:Mr. Sudesh Joshi, Advocate with Ms. Manita Pradhan, Advocate.
For the Respondent Nos. 1, 2, 3 and 4:Mr. Ajay Rathi, Advocate with Ms. Sushma Pradhan, Advocate.
For the Respondent No. 5:Mr. A.K. Upadhyaya, Senior Advocate with Mr. Dhurba Tewari and Mr. Ashim Chettri, Advocates.
Civil Revision Petition No. 08/2009
For the Petitioner:Mr. A.K. Upadhyaya, Senior Advocate with Mr. Ashim Chettri and Mr. Dhurba Tewari, Advocates.
For the Respondent Nos. 1, 2 and 3: None.
For the Respondent Nos. 4 & 5:Mr. D.R. Thapa, Advocate with Mr. Ramesh Sharma, Advocate.
IMPORTANT POINT
Revision petition is not maintainable against award passed by Motor Accident Claims Tribunal.
Headnote:(i) Motor Vehicles Act, 1988—Sections 168 and 173—Accident—Death— Compensation of Rs.16,31,460 awarded by Tribunal payable by Appellant— Insurance Company—Insurance Policy is a contract between insurer and insured—Law enjoins party raising objections to specifically plead and prove all objections before Claims Tribunal—Grounds raised in instant petition cannot be allowed to be raised at this stage when admittedly it was neither raised in their written objection nor was it placed orally before Claims Tribunal by application of principles of waiver, estoppel and acquiescence—Appellant cannot raise a question as an abstract question of law before High Court in present petition—Impugned award upheld—Award with necessary deduction to be paid by petitioner to respondents alongwith cost of Rs. 10,000. (Paras 15 and 16)
2008(7) SCC 305—Relied on.
(ii) Motor Vehicles Act, 1988—Sections 149(2) and 173—Appeal—If in a claims case, insured does not contest claims or award, it would be permissible for insurer to seek remedy of appeal under Section 173 on all grounds available and not restricted to those contained in sub-section (2) of Section 149—Petitioner has a remedy of appeal—In the interest of justice revision petition to be treated as appeal. (Para 13)
2002(2) SCC 265: 2003(3) SCC 524: MACT Appeal No.1 of 2009—Relied on.
(iii) Civil Procedure Code, 1908—Section 115—Revision—Maintainability in claim proceedings—Claims Tribunal not being a subordinate Court under High Court for purpose of Section 115 CPC, revision petition would not be maintainable. (Para 10)
1999(2) TAC 732: 2007(5) SCC 428: 2000 ACJ 1545—Referred to.
Result: Petition dismissed.
S.P. Wangdi, J. —These two revision petitions have been taken up together for disposal by this common judgment as the question involved for adjudication in them are substantially the same.
Civil Revision Petition No.4 of 2009.
This revision petition is directed against the award of the Member, Motor Accident Claims Tribunal, East and North Sikkim at Gangtok, dated 23.2.2007, by which the petitioner, New India Assurance Company Limited, Gangtok Branch through its Branch Manager, was made liable for payment of death compensation of Rs.16,31,460 (Rupees sixteen lakhs thirty one thousand four hundred and sixty), against the death of the victim, Dev Bahadur, the husband of the respondent No.1 and the father of the respondent Nos.2, 3 and 4 respectively.
2. The undisputed facts of the case are that on 3.5.2004 at about 9.35 a.m. bus bearing registration No.SK-4/3889 owned by the respondent No.5 in which the victim Dev Bahadur, S/o Lt. Man Bahadur was travelling as its conductor met with an accident near Traffic Point, Singtam Bazar, PO & PS Singtam, East Sikkim, in which he was fatally injured and was declared dead when brought to the Singtam District Hospital. Joint claim petition under Sections 140 and 166 of the Motor Vehicles Act, 1988 was filed by the respondent Nos.1, 2, 3 and 4 before the Motor Accident Claims Tribunal, East and North Sikkim at Gangtok, registered as M.A.C.T. Case No.23 of 2007, claiming compensation for the death caused to the victim, due to the aforesaid accident against the respondent No.5 as the owner of the accident bus and the petitioner, New India Assurance Company Limited, Gangtok Branch through its Branch Manager with which the bus had been insured. The Accident Claims Tribunal on completion of the due process under Section 166 of the Motor Vehicles Act, 1988, passed the impugned judgment awarding compensation of Rs.16,31,460 to be paid by the petitioner with interest @ 10% per annum with effect from the date of the claim petition to be paid within two months from the date of the judgment.
3. In the revision petition, the only ground set up by the petitioner for assailing the impugned judgment was that the Tribunal had wrongly assessed the compensation under the schedule provided in the Motor Vehicles Act when it was quite respondent No.5 and had died during the course of his employment due to the accident of the vehicle belonging to the respondent No.5 which necessitated assessment of the quantum of compensation as per schedule IV prescribed under the Workmen’s Compensation Act, 1923. On account of such erroneous assessment, the amount of compensation arrived at was exorbitantly high and therefore, the award called for being quashed and set aside. Apart from the above, the petitioner also sought to challenge the award of interest @10% as being on the higher side, in view of the prevailing rate of interest in commercial transactions by banks.
4. It may be stated that the revision petition having been filed beyond the period prescribed under the law, an application for condonation of delay under Section 5 of the Limitation Act, 1963 was filed along with the revision petition. This was allowed by this Court vide order dated 23.7.2009 in Civil Misc. Application No.42 of 2009 and the revision petition was taken up for hearing on admission on 5.8.2009. On being admitted, arguments on behalf of the parties were finally heard on 8.12.2009. In the meanwhile, on 20.11.2009, upon hearing the parties, the points for consideration in the case were narrowed down to the following:
“(i) Whether the delay in filing the Revision Petition can be condoned.
(ii) Whether the revision petition is maintainable.
(iii) Whether the defence of the Insurance Company can be allowed to be raised on the admitted position, that it was neither raised in their written statement nor was it placed orally before the Tribunal.
(iv) Subject to the finding on the above, whether the defence taken by the Insurance Company
