IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.79 of 2007 The New India Assurance Company Limited, a body corporate constituted under the Companies Act, having its Head Office at New India Assurance Building,87, Mahatma Gandhi Road, Fort, Bombay 400023 and amongst others a Divisional Office at Govind Bhawan, New Dak Bunglow Road, Patna 800001 known as D.O. No.II (Code No.540800)and represented through Mr. Diwakar Bag, Deputy Manager at Regional Office, B.S.F.C.Building, VI Floor, Fraser Road, Patna 1, a duly constituted Attorney of the Company. ……….Opposite Party No.2/Appellant/Petitioner. Versus 1. Smt. Pratima Awasthi widow of Late Ramesh Kumar Awasthi, resident of Mohalla Awasthi Niwas, Manaspath, P.S. –Khajekala, District-Patna. …………Claimant/Respondent No.1/Opp. Party No.1 2. Bhikari Rai S/o Late Raj Ballam Rai, resident of village-Madanpur, P.S. –Gauspur, Via- Hazipur, District-Vaishali (Owner of Truck No. BR 31 / 7529) 3. Arvind Kumar Roy S/o Sri Harendra Roy, resident of village-Chaknaur, P.O. Balwakolwari, District-Vaishali (Driver of Truck No. BR 31-7529) ….. Opposite Party No.1 & 2/Respondents No.2 & 3/ Opp.Parties No.2 & 3. For the petitioner : M/s R.K. P. Singh and Manish Kumar, Advocates For respondent no.1 : M/s Ajay Kumar and Mukesh Pd. Singh, Advocates. ----------- 04/ 25.11.2008 I.A. No.2016 of 2008 has been filed by the petitioner for condoning the delay in the filing of the review petition. Learned counsel for the petitioner submits that against the order of this court dated 28.02.2007 passed in M.A. No. 443 of 2003 the instant review petition was filed on 24.04.2007, although according to the stamp report limitation had expired on 11.04.2007. Hence, for condoning the aforesaid delay of about thirteen days, specific explanation has been given in the aforesaid interlocutory application, which appears to be genuine and bonafide. In the said circumstances, I.A. No. 2016 of 2008 is allowed and delay in the filing of the review petition is condoned. 2. Heard learned counsel for the petitioner as well as learned 2 counsel for claimant-respondent no.1. 3. This petition has been filed on behalf of the New India Assurance Company Limited for review of order of this court dated 28.02.2007 by which M.A. No. 443 of 2003 filed by the petitioner was dismissed. The petitioner has raised a point claiming that the said order dismissing appeal was a cryptic order and such orders have been deprecated by the Hon’ble Apex Court in its decision in case of State of Punjab and Another Vs. Navdeep Kaur and Others, reported in (2004) 13 Supreme Court Cases 680. 4. In the said circumstances and in the ends of justice and also in view of the fact that any delay in the matter is bound to affect the claimant adversely, both the parties have been heard today at length in support of their respective cases. 5. The matter arises out of Claim Case No. 89 of 1994, which was filed by the sole claimant-respondent no.1, the widow of the deceased Ramesh Kumar Awasthi, who was driving his Fiat car bearing Registration No. WMF 6126 from Fatuha to Patna in the evening of 06.08.1994 and when he reached near Pakki Dargah More, a Mini Truck model TDV 407 bearing Registration No. BR 31-7529 loaded with banana was coming from Patna towards Fatuha and due to rash and negligent driving it dashed against the car of the deceased causing serious damage to the car and multiple grievous injuries on the person of the deceased, who was brought to a nursing home in Patna City but subsequently he died due to the said injuries on 09.08.1994. It is an admitted fact that a 3 criminal case was lodged against the driver of Mini Truck and charge sheet has been submitted against him in the said case. 6. The aforesaid claim case was placed before the learned 8th Additional District Judge-cum-Motor Vehicle Accident Claim Tribunal, Patna, whereafter notices were issued to the insurance company (petitioner), who appeared in the case on 06.06.1996 but the written statement was filed by the insurance company after more than two years on 22.08.1998, whereafter issues were framed in the case on 05.01.2002 and evidence of the claimant started on 02.03.2002 and ended on 19.04.2003 but no cross-examination was done on behalf of the insurance company nor it led any evidence even after opportunity was given to it, whereafter evidence was closed and arguments were heard and final order in the claim case was delivered by the learned court below on 30.08.2003. 7. It is also not in dispute that during the said period insurance company filed a petition under section 170 of the Motor Vehicles Act, 1988 (hereinafter referred to as Act for the sake of brevity) for allowing it to raise all the points available to the owner of the vehicle, against whom the claim was made but had failed to contest the claim. The said petition was rejected by the learned court below on 06.06.2003, but it was not challenged before any higher authority by the insurance company and only in the miscellaneous appeal it has raised the said point. 8. Now in the instant review petition the petitioner has raised 4 two points which, according to him, were also taken in the miscellaneous appeal. The first point taken by the petitioner was that since admittedly there being head-on collision of the car driven by the deceased with the Mini Truck, the inference would be that there was contributory negligence and in that circumstances it had to be considered that what compensation would be payable by the insurance company of Mini Truck, namely, the petitioner and the owner/insurer of the car but in the instant case neither the said owner nor the insurer of the car has been impleaded as party. On this point he relied upon a decision of the Hon’ble Apex Court in case of Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and Others, reported in (2006) 3 Supreme Court Cases 242. 9. The second point raised on behalf of the petitioner is that since the owner of Mini Truck impleaded in the claim case had not contested the claim case although the claim was against him, the insurance company should have been allowed to contest on all the points, which could have been taken by the said owner in view of the provision of section 170 of the Act, but his petition under the aforesaid provision filed in the court below on 28.04.2003 was rejected by the learned court below on 06.06.2003. He further submits that although he did not file a separate appeal against the said order dated 06.06.2003 but in view of the provision of Order 43 Rule 1-A of the Code of Civil Procedure where any order is made under the Code against a party and thereupon any judgment 5 is pronounced against such party and a decree is drawn up, such party may in an appeal against the decree contend that such order should not have been made and the judgment should not have been pronounced, he had every right to challenge the said order dated 06.06.2003 in miscellaneous appeal filed against final order passed in the claim case. He also avers that the learned court below by rejecting the said petition of the petitioner under section 170 of the Act clearly violated the provisions of law and did not give the opportunity to the petitioner to which it was legally entitled. 10. So far the second point raised by the petitioner is concerned, it is quite apparent from the fact of the case that the petitioner had appeared in the claim case on 06.06.1996 and after two years filed its written statement on 22.08.1998 whereafter issues were also framed but neither the insurance company cross- examined the witnesses of the claimant nor produced any witness of its own although proper opportunity was given by the court below and the petition under section 170 of the Act was filed by the insurance company only thereafter on 28.04.2003. In the said circumstances, it is quite apparent that the said application filed by the insurance company was absolutely frivolous and it was not a bonafide one as it was not filed at the stage before the evidence had started or even when the evidence of the claimant was going on because if the insurance company sought to raise the point of contributory negligence then it had to be based on some evidence but no evidence had been led by the insurance company although 6 full opportunity was given to it. Furthermore, it was through out proved by relevant materials including the charge sheet, which was submitted against the driver only and hence merely on the basis of accident due to collision, no such order could be passed as prayed by the insurance company. 11. So far calculation of compensation is concerned, it has been specifically held by the Hon’ble Apex Court in case of Abati Bezbaruah Vs. Dy. Director General, Geological Survey of India and Another, reported in (2003) 3 Supreme Court Cases 148 that calculation has to be done as per Second Schedule of the Act without any deviation and only in exceptional cases deviation may be resorted to where due to extreme exigency it is found just and fair. Furthermore, since the deceased was a salaried person, his income has to be considered for computation of compensation as per the decision of the Hon’ble Apex Court in case of National Insurance Co. Ltd. Vs. Indira Srivastava and Others, reported in (2008) 2 Supreme Court Cases 763. From the facts and circumstances of the case, it is quite apparent that the learned court below while passing its impugned order in the claim case considered all these matters without committing any error. 12. So far the first point raised by the petitioner is concerned, learned counsel for the petitioner relied upon a decision of the Hon’ble Apex Court in case of Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and Others (supra), but in that case the bus in question was being driven in abnormal zigzag fashion which hit 7 the car driven by the deceased and it was held that it was natural for the deceased, as a prudent man, once having observed abnormal driving in zigzag fashion of bus from afar , to have taken care and precaution to avoid a head-on collision. However, here the case is completely different as there was no abnormal driving in zigzag fashion of the Mini Truck in question, as it was found to be driven only in rash and negligent manner which cannot factually be observed by the driver of the car coming from the front. So far the provision of Order 43 Rule 1-A of the Code of Civil Procedure is concerned, it will not be applicable to the instant case as the impugned order is the final order passed in claim case and is not based upon the earlier order passed by that court on the petition of the petitioner. Furthermore, since legally there is no leave, the insurance company cannot raise the plea of contributory negligence apart from the fact that it is well proved that there was no contributory negligence. In the said circumstances the first point raised by the petitioner is also not sustainable in law. 13. In the aforesaid facts and circumstances, this court finds that the miscellaneous appeal was rightly dismissed by this court vide the impugned order and that there is no merit in the claim of the petitioner. Accordingly this civil review petition is dismissed. 14. As prayed by learned counsel for the petitioner (The New India Assurance Company Limited) let the statutory amount deposited by the petitioner in miscellaneous appeal under the 8 provision of section 173 of the Act be permitted to be withdrawn by the sole claimant-respondent no.1. harish/ ( S.N.Hussain, J.)