IN THE HIGH COURT 0F SIKKIM GANGTOK M.A.C. APPEAL NO.01 0F 2008 1. SONAM BHUTIA S/O LATE GAYSHING BHUTIA. 2. RINZING ONGMU BHullA, D/O SONAM BHUTIA. 3. DOMA BHUTIA, D/O SONAM BHUTIA. 4. CHUNNU BHUTIA, (MINOR) D/O SONAM BHUTIA. 5. KARMA TASHI BHUTIA, (MINOR0 S/O SONAM BHullA. ALL RESIDENTS OF LINGDUM BUSTY, EAST SIKKIM . (APPELLANT NOS. 4 & 5 BEING MINOR ARE REPRESENTED BY THEIR FATHER, APPELLANT NO.1). •.... Appellants Versus 1. BHAI TSHERING BHUIIA, R/O SAZONG BUSTY, P.O.RUMTEK, EAST SIKKIM. 2. BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, MALHOTRA TOWER, 2ND FLOOR, PRADHAN NAGA, SILIGURI. FOR THE APPELLANTS : FORTHE RESPONDENTS : ..... Respondents MR. D. R. THAPA, ADVOCATE WITH MS. KAMAL GIRI AND MS. JAYA CHEITRI, ADVOCATES. MS. NAVTARA SARDA, ADVOCATE. pRESEr\lT : THE I+oN'BLE MR. ]usTICE S. p. WANGDI, ]uDGE Date of last hearina : 27th Auaust, 2009 Date of iudqment : 1St September, 2009 JUDGMENT S.P.Wancldi,J. The short question involved in this appeal is, as to whether the Leaned Member, Motor Accident Claims Tribunal, East and North Sikkim at Gangtok, was right in fixing the liability compensation upon the owner of the vehicle in MA.C.T. Case No.05 of 2004, vide its Order dated 28.12.2006, on the ground that the registration number of the vehicle was not mentioned in the insurance poliey, a fact not disputed dy the Insurance Company. 2, The undisputed facts of the case is that, the victims had died ih. a being 16.01 motor vehicle accident while travelling in the ill-fated vehicle Commander Jeep with registration No.SK 04/2917, on J00 and that the accident had occurred due to the rash and neglig:ent driving of the driver and that the insurance policy filed as exhibit: 3` Trib Vehicl which bot 3, pertains to the vehicle which met with the accident. The fact to be noted in this case is that, the learned had awarded interim compensation u/S. 140 of the Motor Act, 1988 in all 7 claims cases arising out of the same accident included the present one and that finally in its award u/S 166 in 6 claims cases, the learned Tribunal had allowed the claims ng the liability for making payment of the compensation upon owner as well and insurer i.e., the respondents No.1 and 2. A copy| of the judgment in M.A.C.T. No. 06 of 2004 dated 31.07.2006 one of such cases invoMng the same vehicle, i.e., commander SK 04/2917, has been filed as Annexure P2 to the memo of Mr. D. R. Thapa, the learned Counsel for the appellants that the order of the learned Tribunal being inconsistent with the orders passed in other cases referred to above, including the judg Very ment: Same in M.A.C.T.No.06 of 2004 (supra), as those arose from the accident giving rise to the claim in the present case, the same deserves to be set aside and both t 5, NO.2, the liability of the claim fixed upon e respondents ].ointly and severally. Ms, Navtara Sarda, the learned Counsel for the respondent had limited submissions to make which pertained to the maintainabil not be the rel ity of the appeal. They were: (a) that the appellants could said to be the `aggrieved persons' since they had been granted =f of compensation sought for by them and that, the `aggrieved :ehr::nit'h[:::::,I;u::tint:k:nagvepabye::ntth:f°t::e:o°mfptehnesavt:oh:C':a:g::nesnt fixed Vehic thea having appeal the learned Tribunal in its award; (b) that u/S 173 of the Motor Act, 1988, an appeal cannot be maintained without depositing ounts prescribed in the first proviso thereof, and the appellant failed to comply with the said provision which is mandatory, the cannot be maintained. Ms. Sarda referred to 2004 /Z/ r4C 710 ttlp) .in TrfuJhe rITH"fer Of Bondugula Samyuktha Devi vs. T. Sreed ar Aeddy add Of]Aers to support her submission that the I, claimait I was not the `aggrieved person' as raised in contention (a) by her. IIn so far as contention (b) is concerned, referring to the I provisions of Sections 173 Motor Vehicles Act, 1988 and the first proviso' thereto, she submitted that no appeal filed by a person ;:g9a:r':c!|:udrfb:,::o:::redp::,t::a:mRSs:::ouonoa'o:°our'd5obo;oeonft:::':emdo::tt:: Replying to submission (a) of Miss Sarda, Mr. Thapa reliance upon AJfl Z99g SC Z34J in the matter of Jswar Eta/- 9/vs. Hart-AarBeAera and submitted that, in a suit for recovery ::aa,:siubnott:go:I:::mT::redf::::ne:a:,:etrheedp::i:t:ffhtaosr::eeansep:aayrte,:u::: amount from either of the defendants and decree is passed against of them, it is open to the plaintiff to invoke jurisdiction of the appella:te court, for decreeing suit even against the other. It was i±edbyMr.Thapathata-Ithoughthec;vilprocedurecodeisnot subm applica'ble to proceedings under the Motor Vehicles Act, 1988, its :]rt':ac::i:Sh:s°:'odt::::'n::daep,P:yth:hAe:eo:rt°hv:S:::e:°framme:::heprae:'nc::arr Inrepllytocontentlon(b)raisedonbehalfofrespondentNo.2,itwas submitted in the pertai Person fall wit by Mr. Thapa that the deposit of the amounts contemplated First Proviso to Section 173 of the Motor Vehicles Act, 1988, s to an appeal against an award by which the appellant is a required to pay an amount. Since the appellant herein does not in such category of persons, there is no necessity for him under -y i the afbresaid provision to make such deposit and the appeal is maintainable for that reason. Mr. Thapa referred to the case of Rame'Sh Singh and Another vs. Cinta Devi and Others .. AIR 1,996 SC . thoug the op be sou Zj]60 which as per him, sets out this position of law. Having heard the learned Counsels and after giving my consideration to the entire facts and circumstances, I am of nion that the Order of the learned Tribunal does not appear to d in fixing the liability of payment of the compensation awarded :eyg]::it]uopn°nn:hmeb:rwnoefr::°enevebha]::ed::d°nn::efi:nn:y:::'t|:nth,:t::: appropriate column of the insurance policy, when there was no dispute on this, as it was an admitted position that the vehicle was insured under the said policy (Ext.3). The fact has neither been denied in the written objection against the claim filed on behalf of the respondent No.2, nor were witnesses on behalf of the claimants cross-examined on this point. In fact, the only challenge in so far as the policy is concerned, is that, the terms of the policy had been grossly violated. On perusal of the written objections contained in the trial Court records, it appears that, other than raising objections of formal nature, nothing of substance was taken. The Insurance Company chose not to lead any evidence to disprove t:he case of the appellants. Further more, as noted above, 6 claims in respect of cleat:h arising out of the same accident, involving the same vehicle, being Commander Jeep, having registration No.SK 04/2197 against the very same insurance policy, had been allowed making both the insured as well as .the insurer f\\,i,, jointly and severally liable for payment thereof. And, I am informed at the bar that the respondent No.2 has in due compliance of the award, made payments of the compensation in all those cases. 9, In the admitted position, therefore, it is not understood as to how the learned Tribunal took a different view in this case and fixed the liability of payment only upon the owner, exonerating the respondent No.2, i.e., the Insurance Company therefrom. Apart from this, I find from the case of the Patna High Court in the matter of Narayan Sahavs. Oriental Fire and General Insurance Company ffd. reported in 2cOL7AC7 jl97, that in a case where the insurance poliey did not disdose the name and number of vehicle for which the poliey was issued, the Tribunal was unjustified in holding the claimant liable to prove the partioulars of insurance policy when the Insurance Company did not dispute that it had stood as insurer of the vehicle. Paragraph 8 of the judgment is reproduced below: - no. The issue No.IV is not of much significance because it is largely on account of the important issue No.Ill that Tribunal has answered issue No.IV holding that the claimant is not entitled to any compensation. But in deciding this issue also the Tribunal has committed an error of law in holding that the irisurance company cannot be made liable to pay the compensation although it was admitted that the truck was insured with the insurance company at the relevant time because the claimant has ffled a photocopy of the insurance policy, ExhA, which does rot disclose the name and number Of vehicle for which the policy was issued. In a summarv irrauirv, once the insurance comDarv did not dispute that it has stood as insurer of the truck, the Tribunal was uniustified in holdina the claimant liable to Drove the Dartioulars of insurance Dolicv." (ar7?;chasis s\!tjqc7/fad/ Although the above judgment is not binding upon this Court, I have alluded to it and am persuaded to apply the principle enunciated lT\w therein, as the facts in that case appear to be para-materia to the ones in the case at hand. As already indicated, when the fact that the accident vehicle, commander jeep with registration No.SK 04/2917, had been insured under Policy of Insurance Ext.3, has not been disputed by the opposing party, there could not have been any scope for the learned Tribunal to disbelieve such contention. 9, The other contention pertaining to the maintenance of the appeal raised on behalf of the respondent No.2 deserve to be rejected for the reasons stated in seriatim to the contentions as hereafter g'Ven: - Contention fa) I have no hesitation in agreeing with the submissions of Mr. D. R. Thapa, Ieamed Advocate, that the appellants would fall in the category of `aggrieved persons' and that it is permissible for them to seek decree against both the respondents in the facts. and circumstances of the present case, where relief had been sought for against both, jointly and severally but had been granted only against one, i.e., the respondent No.1, the owner. Contention /bl In my view, the contention that in the present case, the appellants not having deposited the amount as required under the First Proviso to Section 173 of the Motor Vehicles Act, 1988, the appeal would not be maintainable, is fallacious in the face of the very provision. To appreciate this, we may extract the relevant provisions of Ssection 173 below: - -\-, C7 ``173. Appeals. - Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court: ................................." (highlighting supplied) From the words ``no appeal by the person who is required to pay any amount in terms of such award" highlighted above, makes it abundantly clear that deposits as contemplated in the First Proviso u/S 173, is to be made only by persons appealing against an award requiring to pay compensation in pursuance thereof. In the present case, as the appellants do not fall in such category, they are not required to make such deposit. The contention, therefore, stands hereby re].ected. The judgment of Bo„dugH/a Sa"j/witrta Oeirt- /sHpraJ referred to by Ms. Sarda, is clearly distinguishable from the facts and circumstances of the present case. In that case, the owner, insurer and the driver of the accident vehicle having been impleaded as parties to the proceedings and the tribunal by its award fixing liability of making payment of the compensation upon the owner and the insurer leaving the driver on the principle that in a claim petition filed under the Motor Vehicles Act, 1988 or Motor Vehicles Act, 1939, the owner would be vicariously liable to pay compensation to t:he claimants under the theory of vicarious liability, the claimants who were the appellants, would not be said to be aggrieved for the award not having been passed against the driver also. That appeal was thus held to be not maintainable. The following extract of the judgment will substantiate this position:- 4. Though, Tribunal held that the accident occurred due to the rash and negligent drMng of the first respondent, it passed an award, for the entire amount claimed by the appellant, only against Respondents 2 and 3 .i.e. owner and insurer Of the jeep involved in the accident but did not fix the liabHity of the first respondent an so the Doint for consideration is whether a claimant in a Motor Vchide AAccident Claim. can be said to be aaarieved bv the Tribunel not makirra the driver liable, but Dasses an award for the entire claim acrainst owner and insurer of the vehicle that caused the accident ? 5. It is well known that in a claini Detition filed under the Motor Vehicles Act, 1988 or the Motor Vehicles Act 1939. the driver of the vehicle that caused the accident is not a necessarv Dartv. Thouah the driver is rrot mad a Dartv, the owner is vicariousiv liable to Dav the comDensation Davable to claimant/s`, under the theorv of vicarious liability. 6. In view of EXA-14 insurance policy, third respondent insurer also is made "able to pay the compensation payable to the appellant and that award became final. 7. Since the appellant filed the claim petition seeking compensation for the death of her son, but not for punishing the first respondent for his causing the accident, and since the main object in constituting Special Tribunals in motor accident cases is to see that clalmants in motor vehicle accident cases receive just compensation for the injuries or death of the victims, and for that reason the Pariiament thought it fit to make third party risk compulsorily insurable and made the insurer liable to pay the compensation arrived at dy the Tribunal, and singe aDDellant can recover the entire comDensation from the insurer as Der the award of the Tribunal. aDDellant cannot be said to be aacirieved bv the Tribunal not oassina an award aflainst the first respondent, who was drivinci the vehicle at the time of accident. 8. As per Section 173 of the Motor Vehicles Act, 1988. only a person aggrieved by the award of claims Tribunal can prefer an appeal. Since appellant cannot be said to be aggrieved by non-passing of an award, dy the Tribunal, against first respondent, I hold that this appeal is not maintainable. Point is answered accordingly." ( underlining emphasised ) JO, In the above facts and circumstances, it is hereby ordered that the award of the learned Motor Accidents Claims Tribunal, East 10 and North at Gangtok, (Annexure Pl to the memo of appeal) hereby stands modified to the extent that the respondents Bhai Tshering Bhutia and the Branch Manager, the New Insurance Company Ltd., Malhotra Tower, Pradhan Nagar, Siliguri who are the respondents No.1 and 2 respectively, shall be held to be both jointly and severally liable for payment of the compensation awarded thereby. The rest of the award having not been challenged remains undisturbed and maintained in the present form. ZJ. Since considerable time has elapsed even after the payment of the interim award u/S. 140 of the Motor Vehicles Act, 1988, it is directed that necessary payment of the compensation in terms hereof be made within a .period of one month from the date of this judgment. Failure to make the payment within that period shall result in the respondents requiring to pay additional interest or 2% cent on the award, making it 12% from the date of default. No order as to costs. Records of the lower court be sent forthwith.