Shivjee Rai v. Arun Rai

being aggrieved by the same, in so far as the liability of payment of compensation was cast upon the owner of the offending vehicle as well as the amount is concerned, had preferred a review application on 26.10.2007 before the Tribunal which was dismissed only on 28.1.2010 on grounds of jurisdiction. It is submitted that the petitioners relying upon a judgment of the Apex Court on the issue of the power of review and recall vested in the Tribunal, had made another attempt to seek review of the judgment and award by filing a second application on

6.10.2010 and which again was dismissed on 27.3.2012 and within 90 days thereafter, the present appeal has been filed. I have heard learned counsel for the parties on the prayer for condonation of delay and I have perused the reasons assigned therefor. 3 Patna High Court MA No.301 of 2012 (13) dt.14-11-2013 Although the prayer is being vehemently opposed by Mr. Priyadarshi but considering the explanation given by appellants for the delay occurred in filing the appeal, this Court is satisfied that there has not been any deliberate laches or delay on the part of the appellants in pursuing their remedy and that it was being bona-fidely pursued by the appellants before the Tribunal concerned. It is only when their attempt to seek a review of the judgment and award was finally rejected that the issues which were raised for preferring the review application, has been raised in this appeal. For the reasons aforementioned, the prayer is allowed, the delay is condoned. Interlocutory application is allowed. Re: M.A.No. 301 of 2012 As already indicated hereinabove, this appeal is directed against the judgment and award passed by the Motor Vehicle Accident Claims Tribunal, Vaishali at Hajipur in Claim Case No. 63 of 2003. The facts are not in dispute, the death of the son of the claimant in a road accident is also not in dispute. In fact, the Tribunal has accepted the claim and has also awarded the compensation of Rs. 3 lacs in favour of the claimants by directing 4 Patna High Court MA No.301 of 2012 (13) dt.14-11-2013 the owner of the offending vehicle to make payment of the compensation amount. The claimants who are appellants before this Court are aggrieved by two aspects of the judgment and award impugned in this appeal namely; (a) In view of the statutory provisions underlying Section 149 of the Act, it is the Insurance Company who are legally bound to indemnify and make payment of the compensation amount, (b) Even when the Tribunal had computed a compensation of Rs. 3, 68,000/-, merely because in the estimation of the claimants, the compensation amount was Rs. 3 lacs, the said amount has been reduced to 3 lacs. (c) The interest ought not to have been made conditional and ought to have been awarded from the date of filing of the claim case. The appellants raising such issues had initially moved the Tribunal in review applications and which having been rejected, they are in appeal before this Court. It has been submitted by Mr. Shahi, appearing on behalf of the appellants that even when the claimants had enclosed a copy of the Insurance policy demonstrating that the offending vehicle was duly insured by the respondent-Insurance Company and the 5 Patna High Court MA No.301 of 2012 (13) dt.14-11-2013 genuineness as well as the validity thereof, was never in doubt, rather has been admitted by the Tribunal, merely because the owner of the offending vehicle did not chose to appear before the Tribunal, the liability has been shifted on the owner despite the statutory provisions underlying Section 149 of the Act. He further submits that two deaths occurred in the road accident. One of them is the son of the claimants namely Dinesh Rai and the other is one Gautam Kumar. It is submitted that the dependents of the other deceased Gautam Kumar had filed a claim case before the Claim Tribunal at Muzaffarpur and in which claim case the owner of the offending vehicle had appeared and filed the Insurance policy. The Tribunal at Muzaffarpur vide judgment and award dated 10.11.2006 passed in Claim Case No. 238 of 2003, while allowing the claim case, directed the Insurance Company to make payment of the compensation amount and which has since been paid. The copy of the judgment and award has been placed on record vide Annexure-2 to the supplementary affidavit. It is submitted that the Insurance Company has discharged its liability under the award passed by the Tribunal at Muzaffarpur and have not preferred any appeal as against that. It is submitted that it is in this background that the appellants had preferred a review application seeking a modification in the judgment and award 6 Patna High Court MA No.301 of 2012 (13) dt.14-11-2013 impugned and which has been rejected by the orders dated

28.1.2010 and 27.3.2012 inter alia on grounds of absence of jurisdiction. In so far as the issue of enhancement of a compensation is concerned as raised in this appeal, Mr. Shahi has submitted that even when the law stands settled on this issue regarding the power vested in the Tribunal to compute a just compensation notwithstanding the amount claimed by claimants, yet the Tribunal has even while computing a higher compensation, has reduced the same merely because claimants’ estimation of the compensation amount was low. He further submits that in view of the statutory provisions underlying Section 171 of the Act, the Tribunal has committed a serious error in awarding a conditional interest. The arguments of Mr. Shahi has been strenuously contested by Mr. Priyadarshi. Learned counsel in fact while questioning the very maintainability of the appeal submits that the appellants not being the person aggrieved, cannot maintain this appeal. It is submitted that the claimants are not to be concerned with the person on whom the liability has been cast and since the claim has been allowed by the Tribunal, the claimants cannot raise any grievance on the anvil of casting of liability. He further submits that the delay of more than four years is fatal for the consideration 7 Patna High Court MA No.301 of 2012 (13) dt.14-11-2013 of the present appeal and which should be rejected. The owner has appeared through Mr. Jain and who has supported the contentions of the appellants that his vehicle was duly insured by the Insurance Company as on the date of accident. I have heard learned counsel for the parties and I have perused the materials on record. The facts are not in dispute. The dispute is whether the appellants can be stated to be a person aggrieved and whether the issues raised by him merits consideration. Even if there may be a semblance of significance in the argument of Mr. Priyadarshi on the issue of person aggrieved, definitely the appellants are fully within their rights to question the award if the same has not been decided in consonance with the statutory provisions. Merely because an award has been passed in favour of the claimant, does not take away his right or precludes him to question the same on the strength of the statutory provisions. It is not in dispute that the policy had been brought on record by the claimants and had not been contested by the Insurance Company, meaning thereby the vehicle was insured. Once this position is clear, merely because the insured did not appear, that was no ground to cast the liability on the insured even when Section 149 cast a duty on the insurer to satisfy the judgment and award passed against insured. The error 8 Patna High Court MA No.301 of 2012 (13) dt.14-11-2013 committed by the Tribunal is even more glaring because the Insurance Company never raised any objections regarding the genuineness or validity of the policy. There was thus no reason for the Tribunal to have directed the insured to make payment of the compensation amount even when the Act casts the liability on the insurer. The Tribunal was clearly in error of jurisdiction. That being the legal position, definitely the claimants have made out a case for appeal. My conclusion aforementioned answers issue No.(a) raised by the claimants. That would bring to this Court to the issue no.(b), regarding enhancement of the compensation amount. Admittedly the claimants had asked for a compensation of Rs. 3 lacs. The computation has been made by the Tribunal in the light of the statutory provisions governing the case and according to the calculation, the claimants were found entitled to a compensation of Rs.3,68,000/-. Once the Tribunal had come to a conclusion regarding the quantum of compensation of Rs. 3,68,000/- admissible to the claimants, it was immaterial whether the claimants had asked for lower compensation. When the Act requires the Tribunal to compute a just compensation, it can either be below the amount claimed or above that. Certainly, if the claimants would have asked for compensation of Rs. 5,00,000/-, 9 Patna High Court MA No.301 of 2012 (13) dt.14-11-2013 the Tribunal would not have increased the compensation amount from Rs. 3,68,000/- to Rs. 5 lacs merely on the asking of the claimants. It is for the Tribunal to do the exercise and arrive at a just compensation. This issue in fact does not remain res integra and stands concluded by judgments of the Supreme Court reported in (2003) 2 SCC 274 (Nagappa Vs. Gurudayal Singh & Ors.) and (2011) 14 SCC 639 (Ranjana Prakash & Ors. Vs. Divisional Manager & Anr.). My conclusion aforementioned answers issue No.(b) and the claimants are found entitled to a compensation of Rs. 3, 68,000/-. This brings this Court to the last issue regarding payment of interest. The conditional award of interest is clearly in the teeth of the statutory provisions underlying Section 171 of the Act which provides for payment of interest from the date of filing of the claim case if not earlier. Again this issue stands answered in the case reported in AIR 2009 SC 3098 (Thazhathe Purayil Sarabi & Ors. Union of India & Anr.). For my conclusions drawn hereinabove, I hold the claimants entitled to a compensation of Rs. 3,68,000/- which would be accompanied with interest as quantified by the Tribunal i.e. 10% payable from the date of filing of the claim case i.e. 18.8.2003 10 Patna High Court MA No.301 of 2012 (13) dt.14-11-2013 until the date of award i.e. 1.9.2007 with the clear stipulation that if the compensation amount together with interest is not paid within three months from the date of receipt/production of a copy of this order by the claimants, the interest would continue to run until the date of its realization. The appeal is allowed. Let the Lower Court Records received in connection with Claim Case No. 63 of 2003 Additional District Judge, F.T.C. 3- cum-Motor Vehicle Accident Claims Tribunal, Vaishali at Hajipur forthwith. Bibhash/- (Jyoti Saran, J)