Case: Mansuklal Keshavjibhai Patel Vs. United India Insurance Co. Ltd. & Others

1. This appeal is directed against the judgment of the learned Single Judge of the Gujarat High Court whereby he allowed the appeal filed by respondent No. 1 under Section 173 of the Motor Vehicles Act, 1988 (for short, the Act), set aside award dated 24.10.1997 passed by Motor Accident Claims Tribunal (Main), Nadiad (for short, the Tribunal) in MACP No. 215/1987 and declared that liability of respondent No. 1 would be limited to Rs. 30,000/- and the said respondent is entitled to refund of the amount paid in excess of Rs. 30,000/- with interest at the rate of 12% per annum and proportionate costs. In an accident which occurred on 23.10.1986 involving the taxi owned by respondent No. 3, the appellant suffered grievous injuries. He filed claim under Section 166 of the Act for award of compensation to the tune of Rs. 2,50,000/- by asserting that the accident was caused due to rash and negligent driving of the taxi by respondent No. 2. He further pleaded that due to accident he had suffered grievous injuries and was treated for compound fracture in the right hand and as a result of that he suffered permanent disability. Respondent Nos. 2 and 3 contested the claim and denied the allegation of rash and negligent driving of taxi. They pleaded that the accident occurred when a truck dashed on the right side of the taxi and the appellants hand was injured because it was kept outside the window. Respondent No. 1 also contested the claim and pleaded that it was not liable because the driver was not holding valid driving licence. 2. On the pleadings of the parties the Tribunal framed the following issued: (1) Whether the applicant proves that he sustained injuries because of the rash and negligent driving of the driver of the vehicle involved in the accident? (2) Whether the applicant is entitled to compensation? If yes, what amount and from whom? (3) What award and order? 3. After considering the evidence produced by the parties the Tribunal held that the accident was caused due to rash and negligent driving of the taxi. The Tribunal then considered the issue relating to quantum of compensation and held that the appellant is entitled to total amount of Rs. 1,46,000/- with running interest at the rate of 12% per annum from the date of filing the claim petition with proportionate costs. The Tribunal ordained payment of compensation by respondent Nos. 1 to 3. 4. The appeal filed by respondent No. 1 was allowed by the learned Single Judge by relying upon Section 95(2) of the Act and the judgment of this Court in New India Assurance Company Ltd. v. C.M. Jaya and Others, I (2002) SLT 290=95 (2002) DLT 500 (SC)=I (2002) ACC 299 (SC)=(2002) 2 SCC 278. 5. Mr. Haresh Raichura, learned Counsel for the appellant argued that in view of the law laid down by the Constitution Bench in New India Assurance Company Ltd. v. C.M. Jaya and Others (supra) the liability of respondent No. 1 may be limited, but the learned Single Judge of the High Court committed serious error by giving an option to the said respondent to recover the amount from the appellant and/or respondent No. 3. He submitted that the appellant cannot be made to refund the amount paid after a gap of 24 years. 6. Learned Counsel for respondent No. 1 fairly stated that his client should be given liberty to recover the excess amount from respondent No. 3. 7. We have considered the submissions of the learned Counsel for the parties and are convinced that the learned Single Judge committed serious error by not specifying the person from whom respondent No.1 may recover the amount paid to the appellant. It is not in dispute that respondent No. 3 had not questioned the award of the Tribunal by filing an appeal under Section 173 of the Act. Therefore, he shall be deemed to have admitted his liability and the mere fact that the Tribunal had fastened liability to pay compensation on respondent No. 1, along with respondent Nos. 2 and 3, the owner cannot be absolved of the responsibility to refund the excess amount paid by respondent No. 1 to the appellant.

Decision:
1[ds]7. We have considered the submissions of the learned Counsel for the parties and are convinced that the learned Single Judge committed serious error by not specifying the person from whom respondent No.1 may recover the amount paid to the appellant. It is not in dispute that respondent No. 3 had not questioned the award of the Tribunal by filing an appeal under Section 173 of the Act. Therefore, he shall be deemed to have admitted his liability and the mere fact that the Tribunal had fastened liability to pay compensation on respondent No. 1, along with respondent Nos. 2 and 3, the owner cannot be absolved of the responsibility to refund the excess amount paid by respondent No. 1 to the appellant.