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B. Srinivasa Reddy and anr. Vs. Khatumbi and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberMisc First Appeal No. 136 of 1973
Judge
Reported inILR1974KAR994; 1974(2)KarLJ213
ActsMotor Vehicles Act, 1939 - Sections 95(1), 96(1), 96(2), 96(6), 110A, 110A(3), 110B, 110D, 110E and 111A; Mysore Motor Vehicles Rules, 1963 - Rules 343, 346 and 360; Code of Civil Procedure (CPC), 1908 - Sections 100 - Order 1
AppellantB. Srinivasa Reddy and anr.
RespondentKhatumbi and ors.
Appellant AdvocateH. Kumaraswamy, Adv. for M.S. Gopal, Adv.
Respondent AdvocateP.K. Basheer Ahmed and ;R. Narayana, Advs.
Excerpt:
.....- ' 19. a like view was taken by a bench of the bombay high court in bessarlal v. we fail to appreciate how can the statutory defences be raised unless the insurer is made a party......wife and children of kaza hussain, the victim of the fatal accident. respondent 7 herein is the insurance company with which the motor bus had been insured against third party risk.2. the claimants presented an application under section 110-a of the act before the tribunal, claiming a compensation of rs. 25,000 for the death of kaza hussain. in the proceedings before the tribunal, the appellants and the insurance company were respondents 1 to 3, respectively. to that application the appellants filed one set of objections and the insurance company filed an independent statement of objections in which it pleaded, inter alia, that the bus was driven by a person who did not possess a valid driving licence and that the bus did not also have a valid permit.3. the tribunal framed issues and.....
Judgment:

Chandrashekhak, J.

1. This appeal under Section 110-D of the Motor Vehicles Act, 1939, (hereinafter referred to as the Act), is from a judgment of the Motor Accidents Claims Tribunal, Tumkur, (hereinafter referred to as the Tribunal), awarding compensation for the death of a person in an automobile accident. Appellants 1 and 2 are the owner and the driver respectively of the motor bus involved in the accident. Respondents 1 to 6 herein (hereinafter referred to as the claimants) are the wife and children of Kaza Hussain, the victim of the fatal accident. Respondent 7 herein is the Insurance Company with which the motor bus had been insured against third party risk.

2. The claimants presented an application under Section 110-A of the Act before the Tribunal, claiming a compensation of Rs. 25,000 for the death of Kaza Hussain. In the proceedings before the Tribunal, the appellants and the Insurance Company were respondents 1 to 3, respectively. To that application the appellants filed one set of objections and the Insurance Company filed an independent statement of objections in which it pleaded, inter alia, that the bus was driven by a person who did not possess a valid driving licence and that the bus did not also have a valid permit.

3. The Tribunal framed issues and proceeded to try the case. On 3-8-1972 the claimants filed a memo stating that they did not intend to press their claim against the Insurance Company and that their claim against it (the Insurance Company) might be dismissed as not pressed. On the basis of that memo, the Tribunal made an order on that day itself dismissing the application as against the Insurance Company. Subsequently, the Tribunal recorded the evidence of witnesses examined by the claimants. On 27-10-1972, the Tribunal adjourned the case to 3-11-1972 stating that both sides should close the evidence on 3-11-1972. On 3-11-1972 the Tribunal recorded the evidence of the claimants' witnesses. The claimants closed their evidence. The appellants were not ready with their witnesses on that day. They prayed for an adjournment to enable them to produce their witnesses. The Tribunal declined to grant an adjournment, heard arguments on that day itself and pronounced judgment on 7-11-1972 awarding a compensation of Rs. 5,000 against the appellants only.

4. In this appeal Mr. Kumaraswamy, learned counsel for the appellants, urged the following two contentions:

(i) The Tribunal should have held that the Insurance Company was a necessary party and should not have dismissed the Claimants' application as against the Insurance Company.

(ii) The Tribunal was not justified in refusing an adjournment and thereby depriving an opportunity to the appellants to examine their witnesses.

5. Elaborating his first contention, Mr. Kumaraswamy argued that after the Insurance Company was served with a notice, the Tribunal should not have dismissed the application as against it (the Insurance Company) merely because the Claimants did not press their case against it. On the other hand, Mr. R. Narayan, learned counsel for the Insurance Company, contended that the Claimants had the choice to implead or not to implead the Insurance Company as a party and to ask or not to ask for any judgment against it and that if the Claimants did not themselves press their claim as against the Insurance Company, the Tribunal could not compel the Insurance Company to continue as a party and could not pass a judgment against it.

6. To appreciate the rival contentions of the parties it is necessary to set out the relevant provisions of the Act and the rules made thereunder relating to the procedure before the Tribunal.

7. Sub-section (1) of Section 96 of the Act provides, inter alia, that if a judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (i) of Section 95, is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor in respect of the liability, together with costs and interest.

8. Sub-section (2) of Section 96 of the Act provides that no sum shall be payable by an insurer under Sub-section (1) of Section 95 in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings. That sub-section also provides that the insurer to whom notice of any such proceeding is given, shall be entitled to be made a party thereto and to defend the action on any of the grounds specified in Clauses (a) to (e) of that sub-section.

9. Section 110-B of the Act provides, inter alia, that in making the award the Tribunal shall specify the amount payable by the insurer, the owner or the driver of the vehicle involved in the accident or by all or any of them.

10. Section 111-A of the Act empowers the State Government to make rules for the purpose of carrying into effect the provisions of Sections 110 to 110-E and such rules may, in particular, provide, inter alia, for the form of application for claims of compensation and the particulars it may contain and the procedure to be followed by the Claims Tribunal in holding enquiry under Chapter VIII of the Act. Such rules may also provide which of the powers vested in a Civil Court may be exercised by the Tribunal.

11. Rule 343 of the Mysore Motor Vehicles Rules, 1963 (hereinafter referred to as the Rules) made by the State Government, in exercise of the powers conferred by Section 111-A of the Act, provides, inter alia, that every application for payment of compensation made under Section 110-A of the Act shall he made in Form No. 82 appended to the Rules.

12. Rule 346 of the Rules provides, inter alia, that the Tribunal shall send notice together with copies of the application under Section 110-A of the Act to the owner of the motor vehicle involved in the accident and to its insurer.

13. Rule 360 of the Rules provides, inter alia, that certain provisions of the First Schedule to the Code of Civil Procedure shall apply to the proceedings before the Tribunal, The provisions of Order I of the Code of Civil Procedure which deal with parties to a suit, are not made applicable to the proceedings before the Tribunal.

14. Form No. 82 in the Schedule to the Rules specifies the particulars to be stated in such application. Such particulars include the name and the address of the insurer of the vehicle involved in an accident.

15. Neither the Form (Form No. 82) nor any provisions of the Act or the Rules, requires the claimant to implead the insurer as a party to his application under Section 110-A of the Act. In fact, the cause title containing the names of parties to the proceedings before the Tribunal, is not shown as a part of the form. The form merely provides for mentioning the names and the addresses of the owner and the insurer of the vehicle involved in the accident.

16. Rule 346 of the Rules requires the Tribunal to send notices along with copies of the application under Section 110-A of the Act, to the owner and the insurer of the vehicle involved in the accident.

17. Neither the Act nor the Rules requires that the claimant making an application under Section 110-A of the Act, should implead as respondent or opponent the insurer of the vehicle involved in the accident. A duty is cast on the Tribunal to send a notice of such application to the insurer. When such notice is issued to the insurer, he can be regarded as a party to the proceedings before the Tribunal.

18. A similar view was expressed by a Bench of this Court consisting one of us, in M. F. A. No. 353 of 1969 (Karnataka) (The Concord of India Insurance Co. Ltd. v. Rudregowda). There, the question that arose for determination was whether an insurer can be impleaded as a party to an application under Section 110-A of the Act after the expiry of the period of limitation prescribed by sub-Section (3) of that section, for presentation of such application. Dealing with that question, this is what that Bench observed:

'There is no express provision in the Act or the rules made thereunder, which requires that the insurer of a motor vehicle involved in an accident, should be impleaded as party in a petition under Section 110-A in which compensation is claimed as against the owner of that vehicle.........

All that is necessary to make the insurer so liable, is to give him through the court or the Tribunal, notice of the proceeding, in which compensation is claimed as against the insured.'

19. A like view was taken by a Bench of the Bombay High Court in Bessarlal v. Motor Accidents Claims Tribunal, Greater Bombay, : AIR1970Bom337 . Their Lordships observed at p. 340 :

'It is quite clear on a reading of the prescribed form that it does not direct the claimant for compensation to include in the application any party as defendant and/or opposite party. We apprehend that all the relevant facts are in this connection left to be ascertained by the Claims Tribunal which has been entrusted with the very serious duties of finding out all the parties who may be liable to pay compensation by recording evidence to be produced by the parties concerned................'

20. As the insurer becomes a party to the proceedings before the Tribunal by virtue of the notice issued to him by the Tribunal, the claimant who makes an application under Section 110-A of the Act, has no right to give up the insurer as a party to the proceedings before the Tribunal, nor can he ask the Tribunal to delete the insurer as a party to those Proceedings. The view we have taken receives support from the following observations of a Bench of the Madhya Pradesh High Court in M. P. State Road Transport Corporation v. Jahiram, : AIR1969MP89 :

'......Their Lordships of the Supreme Court have in British India General Insurance Co. Ltd. v. Captain Itbar Singh, (AIR 1959 SC 1381) indicated the nature of defences that are available to an insurer upon being impleaded as a party. We fail to appreciate how can the statutory defences be raised unless the insurer is made a party. That is the only manner in which the insurer can avoid its liability. In view of the clear provisions contained in Section 96 (2) and (6) of the Motor Vehicles Act, it can hardly be asserted that an insurer is not a party to an action for recovery of damages. Thus, the insurer must, of necessity, be a party to such proceedings.'

21. After notice was issued to the Insurance Company and it filed its statement of objections and the Tribunal framed issues as to whether the Insurance Company was not liable to pay any compensation to the claimants, the Tribunal could not, in our opinion, delete the Insurance Company as a party to the proceedings even if the Claimants stated that they did not press their case against the Insurance Company. So long as the Claimants did not give up their claim against the owner of the vehicle involved in the accident, the insurer to whom a notice had already been issued, was necessary party because under Section 96 (1) of the Act the insurer is liable to pay the person entitled to the benefit of the decree Passed against the insured.

22. Thus, the Tribunal was not justified in dismissing the Claimants' application as against the Insurance Company merely because the Claimants did not press their claim against the Insurance Company. The judgment of the Tribunal is vitiated by this material illegality.

23. However, Mr. Narayan contended that the appellants who were respondents 1 and 2 before the Tribunal, did not urge before the Tribunal that the Claimants could not give up the Insurance Company as a party to the proceedings and that hence they should not be permitted to urge this point in this appeal. The question whether the Insurance Company can be given up by the Claimant and whether the Tribunal can decline to make an award against the Insurance Company solely on the ground that the Claimant did not press his claim against the Insurance Company, are pure questions of law and do not involve investigation of any disputed questions of fact. Hence, there is no impediment for our permitting those questions being raised for the first time in this appeal.

24. There is considerable force in the contention of Mr. Kumaraswamy that the Tribunal should not have refused the appellants' request for an adjournment to enable them to examine their witnesses, But, it is not necessary to express any final opinion on this point as the judgment of the Tribunal has to be set aside on the other ground stated earlier.

25. We may also point out another error committed by the Tribunal. The Tribunal awarded compensation to the Claimants under the head 'pecuniary loss to the dependents'. The Tribunal has overlooked that in the case of a fatal accident, compensation also be given under another head 'loss of expectation of life.'

26. In the result, we allow this appeal, set aside the judgment of the Tribunal and remand the case to the Tribunal. The Tribunal is directed to treat the Insurance Company as continuing to be a party in the proceedings. It is likely that the Insurance Company did not cross-examine P. Ws. 1 to 3 thinking that it (the Insurance Company) had ceased to be a party to the proceedings in view of the Claimants themselves stating that they did not press their case against the Insurance Company. We direct the Tribunal to recall P. Ws. 1 to 3 if the Insurance Company desires to cross-examine them. We also direct the Tribunal to afford opportunity to the appellants and the Insurance Company to examine witnesses, if they so desire. It will be open to the Claimants also to adduce further evidence if they so desire.

27. In the circumstances of the case, we direct the parties to bear their own costs in this appeal.

28. The Tribunal is directed to dispose of the case very expeditiously.

29. Appeal allowed.


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