SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION NO.1812/2009. The New India Assurance Co.Ltd. Vs. Smt.Asha Devi Garg and ors. 2) S.B. CIVIL WRIT PETITION NO.1813/2009. The New India Assurance Co.Ltd. Vs. Smt.Asha Devi Garg and ors. 3) S.B. CIVIL WRIT PETITION NO.1814/2009. The New India Assurance Co.Ltd. Vs. Smt.Asha Devi Garg and ors. 4) S.B. CIVIL WRIT PETITION NO.1815/2009. The New India Assurance Co.Ltd. Vs. Smt.Asha Devi Garg and ors. Date of order:- May 21, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Vishnu Mehta with Shri Rishipal Agrawal and SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 2 Shri R.D. Meena for the petitioners. Shri S.M. Mehta, Senior Advocate with Shri N.N. Tiwari and Shri Shobit Tiwari for the respondents. **** Reportable BY THE COURT:- These four writ petitions have been filed by the petitioner-New India Assurance Company Ltd. against the common order dated 15/7/2008 passed by the Motor Accident Claims Tribunal Jaipur dismissing its four applications filed for different purposes. First of these applications was filed under Order 14 Rule 5 CPC for amendment and/or for framing of additional issues. Second application was filed for summoning the record of the Regional Transport Authority. Third application was filed for amendment of the written-statement and fourth application was filed for a direction to proceed ex-parte against non-claimant No.1 Jai Gopal, who was driver of the offending vehicle. 2) Since all the four petitions were directed against the common order rejecting above referred to four applications, which were filed at the instance of the same petitioner, SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 3 all these petitions were taken up together for hearing and are being now decided by this common order. 3) Factual matrix of the case is that on 27/3/1997, one Kishori Sharan Garg died in a road accident while driving a Maruti Esteem Car. The car driven by him collided with a truck on National Highway No.8 within the jurisdiction of Police Station Chandwaji, District Jaipur. A first information report bearing FIR No.23/97 for offence under Sections 279 and 304A IPC was registered with the Police Station Chandwaji District Jaipur clearly stating about involvement of above two and a third passenger bus. The truck bearing Registration No.HR- 10/3976 was insured with the petitioner insurance company for the period from 24/8/1996 to 23/8/1997 and the cover note was issued covering this period. Claimants in this case filed claim petitions under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal, Jaipur on 24/8/2006 after more than nine years of the accident claiming a sum of Rs.181,74,80,000/-. The SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 4 enormity of the claimed amount of compensation has alarmed the petitioner insurance company to contest the present matter tooth and nail which has filed above referred to four applications for different purposes. According to petitioner, it issued policy of insurance on the subject vehicle on the strength of such earlier policy issued by the National Assurance Company, which fact was duly recorded in the cover note dated 23/8/1996. It appointed Investigator Shri Hawa Singh to verify the claim and examine all the peculiar circumstances; who visited office of Regional Transport Authority at Rohtak and Sonipath in the State of Haryana so as to ascertain genuineness and authenticity of the registration certificate. He submitted an application before the Regional Transport Authority at Rohtak seeking verification of the particulars contained in the registration certificate of the vehicle from their record. The Regional Transport Authority at Rohtak returned the original application with the remark that particulars of the aforesaid vehicle were not traceable in their records and that the SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 5 Regional Transport Authority at Sonipath be consulted in the matter. When he visited office of Regional Transport Authority at Sonipath, it issued particulars of Registration Certificate on 8/5/2008 indicating that no transfer of this vehicle has been made till date as per their record and that the vehicle was originally registered in their records in the name of Anjit Singh S/o Omprakash and no NOC was issued by RA/RTA for its transfer after 6/9/1990. Another reason for filing the aforesaid application before the Tribunal was that claimants were vigorously prosecuting the insurance claim on the policy of the deceased with the United Assurance Company and petitioner New India Assurance Company. The claimants also filed an application before the Consumer Disputes Redressal Forum at New Delhi for damages caused to the car under the Consumer Protection Act, 2001. Even then the claim petition under Section 166 of the Act of 1988 was filed on 4/8/2006 belatedly after lapse of 9 years and 5 months. Despite there being no prescribed limitation, the Tribunal was still required to see whether SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 6 the delay was satisfactorily explained because even in absence of period of limitation, claim petition was nonetheless required to be filed within reasonable time. Third reason for the petitioner to move one of the aforesaid applications was that since the driver of the offending vehicle Jai Gopal was declared hostile in the criminal case pending against him before the court of learned Judicial Magistrate for offence under Section 304A IPC, proceedings against him in the motor accident claim case are liable to be held ex-parte notwithstanding filing of written-statement and vakalatnama on his behalf. On the basis of the aforesaid, petitioner made yet another application with the prayer that the Regional Transport Authority Sonipath as well as Rohtak be directed to produce entire record relating to registration and transfer of offending vehicles from 6/9/1990 till the date of accident. 4) Arguments have been canvassed for reversing and upholding the common impugned- order by which aforesaid four applications were rejected, however, with a view to facilitate the SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 7 disposal of these petitions in an effective manner, I deem it appropriate to deal with all the four petitions separately in the order in which such applications were considered and decided by the Tribunal. SBCWP No.1812/09:- 5) In this writ petition, petitioner has challenged the order by which its application for amendment of the existing issues and/or for framing of additional issues, was rejected. 6) Claimant respondents filed affidavit of the previous owner Shri Anjit Singh, who sold the vehicle in question to non-claimant Santraj Singh. Santraj Singh (owner) produced the National Permit issued in his name and also registration certificate to show that the vehicle already stood transferred in his name. He made an application to RTA on 5/6/2008 demanding ownership verification of the vehicle on which the said Authority made a remark to the effect that the Registration Certification was not available in their office however, registration of vehicle in question was SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 8 transferred in the name of Santraj on the basis of National Permit granted in his name on the said vehicle which was valid from 4/6/1994 to 4/12/1999. Registration Certificate stands in the name of Santraj Singh. 7) Learned counsel for the petitioner has argued that though the petitioner has proposed for framing of many additional issues however the application would show that the proposed additional issues No.1 to 7 seek to deal with one important aspect, namely; where there is no period of limitation provided by the statute, namely, Motor Vehicles Act, 1988, whether the claim petition under Section 166 filed after an inordinate and unexplained delay of more than nine years is per se maintainable without enquiring into the reasons for the inordinate delay and if not, what is its effect? It is contended that despite omission of sub-Section (3) of Section 166 of the MV Act by Amendment Act of 2001, claim petition was still required to be filed within reasonable period of time. Reliance in support of this argument has been placed on the judgment of Apex Court in Pune SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 9 Municipal Corporation Vs. State of Maharashtra & Ors. (AIR 2007 SC 2414), A.V. Papayya Sastry & Ors. Vs. Government of A.P. & Ors. (AIR 2007 SC 1546) and Rand M.Trust Vs. Koramangala Residents Vigilance Group and others (AIR 2005 SC 894). Learned counsel referring to the objects and reasons of the Amendment Act of 2001 raised argument that omission of sub-section (3) was intended to take care of claimants/injured or the legal heirs of the deceased, who are ignorant about the period of limitation during which application was to be preferred in case of death of the sole bread earner of the family and in many cases, such claimants are virtually on the streets and even in cases where the victims escape death, some of such victims are hospitalized for sufficiently long time. Mere omission of the provisions of limitation does not mean that claimants can file the claim petition at any time they like and that too even after delay of ten years. Law is well settled that even when there is no time limit prescribed for approaching the court or for filing a petition/application before the court, the SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 10 aggrieved party should approach the court within reasonable time or else the petition / application /claim would be liable to be rejected for delay and latches. It is contended that in para 26 of the claim, claimant made a misleading statement that the claim application was within limitation whereas fact is that there was delay of 9 years and 5 months. Petitioner has also proposed an additional Issue No.8 on the premise that non-claimants No.1 and 2 respectively in their written-statement pleaded that accident took place due to rash and negligent driving of Maruti Car bearing No.RJ-14 1C 4788 being driven by the deceased, which collided with the Truck bearing No.HR-10 3976 due to inadvertence of a passenger bus. It is submitted that once it is known that there was contest on a factual aspect of the matter, the Tribunal ought not to have avoided framing issue on such factual contest appearing from the pleadings. It was argued that in the written- statement filed by non-claimants No.1 and 2, reference was made about involvement of third passenger vehicle and this fact was very much SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 11 stated in the first information report lodged with the police also. 8) Per contra, Shri Sagar Mal Mehta, learned Senior counsel appearing for all the non-petitioners argued that the insurance company in the present case has started raising every possible hurdles so as to delay the proceedings, which is evident from the fact that they have filed not one but four applications raising frivolous objections. Section 166 of the Motor Vehicles Act, 1988 was properly amended by the Act of 1994 to do away with the provisions of limitation. There is therefore no justification for insisting that the claim petition was not filed within limitation or otherwise the delay was not satisfactorily explained. Learned counsel relied on the judgment of Supreme Court in New India Assurance Co.Ltd. Vs. C.Padma and another : (2003)7 SCC 713 to argue that Supreme Court in that case clarified every contingency and held that even Article 137 of the Limitation Act, 1963 does not apply to the claims which were filed before the Tribunal under the MV Act. The Tribunal has SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 12 already framed issue with regard to limitation as Issue No.3 and therefore more and additional issues touching upon the aspect of limitation could not be framed. Contention of the petitioner in this aspect was rightly rejected by the Tribunal. It was submitted that there was no question of framing an issue for dismissing the claim application on the ground of non- impleadment of driver/owner and insurer of passenger bus as respondents. Similar application for framing of additional issue was already rejected by the Tribunal vide order dated 27/4/2007 and therefore another application on the same subject matter was not maintainable. 9) Learned counsel for the petitioner in rejoinder has produced copy of the earlier application dated 16/6/2007 by which, it was prayed to frame additional issues. Issues proposed in that application was whether claim petition was time barred and second issue was whether the vehicle in question bearing No.HR- 10/3976 was not insured with the petitioner on the date of accident i.e. 27/3/1997 and if so, SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 13 what is its effect? It was argued that they were entirely different issues. On rejection of such application, it cannot be said that subsequent application would be barred. 10) Upon consideration of rival submissions made by the parties and perusal of the impugned- order, I find that as far as objection with regard to delay vis-a-vis limitation is concerned, after deletion of sub-section (3) of Section 166 of the MV Act, there is as such no limitation prescribed for filing the claim petition but on that aspect of the matter, already Issue No.3 has been framed by the Tribunal. Framing additional issues on the question of delay may not be necessary. What however remains to be considered is that what would be the effect of filing of the claim petition belatedly. Petitioner has proposed not one but as many as seven issues on the question of delay alone. Cumulative reading of proposed issues reveal that insistence of the petitioner is that the claimants were required to satisfactorily explain inordinate delay of 9 years and 5 months and that Tribunal ought to SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 14 have examined as to what would be the effect of such a delay specially when claimants are seeking Rs.181,74,80,000/- as compensation. In my considered view, petitioner insurance company should not be over reactive to the quantum of compensation demanded as ultimately what compensation has to be awarded shall have to be decided by the Tribunal on the basis of the evidence led before it. Issue with regard to limitation having already been framed, ofcourse delay may have the effect on the payment of interest for the intervening period and this aspect of the matter can be duly taken care of by the Tribunal in the last issue framed as to what relief the claimants are entitled to and considering that issue, Tribunal may even decline to award interest for the period of delay so as to mould the relief which at the maximum would be the effect of enormous delay in filing of the claim petition. 11) All those judgments of the Supreme Court cited on behalf of the petitioner on the point of law that even where there is no period of limitation prescribed for availing of a remedy, SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 15 aggrieved person should approach the court within reasonable time, shall have to be therefore examined on the touchstone of the intention of the Parliament in seeking to deliberately delete sub-Section (3), which earlier provided limitation of six months from the date of cause of action arise. Supreme Court in Dhannalal Vs. D.P. Vijayvargiya and others : (1996) 4 SCC 652 held that when sub-section (3) of Section 166 has been omitted, then the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place and even went to the extent of holding that Section 6-A of the General Clauses Act as well as Article 137 of the Limitation Act, 1963 cannot be invoked before the Motor Accident Claims Tribunal because the Motor Vehicles Act is a beneficial legislation and is a self-contained Act which prescribes the mode of filing the application, procedure to be followed and award to be made. Since the object is to give effective relief to the victims and the families of the motor accidents untrammeled by the technicalities of SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 16 the limitation, invoking of Article 137 would defect the intendment of the legislature. 12) Considering, however, pleadings of the parties, especially of the written-statement filed by non-claimant No.2, I find that in para 2 of the additional pleas, it has clearly been stated that accident had taken place due to rash and negligent driving of the non-passenger bus and maruti car which was driven by the deceased himself and that accident took place because driver of the passenger vehicle/bus overtook the maruti car, from the wrong side, as a result of which, driver of the maruti car lost his control of his vehicle and dashed the car into the truck, which was coming on the correct side in conformity with the traffic rules. In my considered view, according to the requirement of Order 14 Rule 1 CPC, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other and according to sub-Rule(2), material propositions are those propositions of law or fact, which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 17 constitute his defence. Sub-Section (3) of Order 14 provides that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. According to sub-Rule(4), issues are of two kinds: (a) issues of fact and (b) issues of law. When specific pleading was made by the non- claimants No.1 and 2 in their written-statement, Tribunal, in my considered view, could not avoid framing of issues on that aspect just because this objection had not been raised by the insurance company or that such objection could not be raised by the insurance company. Law, which is to be ultimately applied on the question of correctness or otherwise on the objection, could not have been considered at the stage of framing of additional issues. Regard being had to enormity of claim and there being such factual assertion in the pleadings, and considering that there was a contest on this factual aspect, which had an important bearing on the ultimate outcome of the claim petition, in my opinion, the Tribunal has erred in law in not allowing the application for framing SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 18 additional issues on this aspect of the matter. Moreover the Tribunal also could not refuse to frame such issues on the premise that owners and drivers of the vehicles are unknown. This is a matter of evidence and it was the burden of concerned party to prove this fact by required degree. The Tribunal would however be free to take its own view of the matter on the basis of evidence led. It cannot however shirk its responsibility in framing the issue arising out of the pleadings of the parties. 13) The Tribunal was not justified in observing that burden of proof for this plea or issue that accident took place due to rash and negligent driving of Truck No.HR-10/3976 would be on the claimants and if in rebuttal respondents at that stage produce evidence showing that accident took place on account of rash and negligent driving of the aforesaid passenger vehicle, claim petition would be liable to be rejected. Tribunal at the stage of framing of issues/additional issues could not decline framing of such additional issue because the evidence in rebuttal obviously would be led SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 19 confined to the issues framed and if despite pleadings that there was involvement of an unknown passenger bus which overtook the maruti car being driven by the deceased from wrong side, this was obviously an important fact necessitating framing of issue. Evidence in rebuttal would naturally be then liable to be read in support of one or the other party. 14) Issues No.8, 9 and 10 as proposed by the petitioner can be combined together thus, “Whether in view of the pleadings contained in para 2 of the additional pleas of written- statement filed by non-claimant, the accident took place due to rash and negligent driving of the maruti car bearing No.RJ-14 1C 4788 driven by the deceased and unknown passenger vehicle/bus and if so, what is the effect of non-impleadment of owner and driver of such unknown passenger vehicle/bus? 15) The writ petition filed by the insurance company to that extent deserves to be allowed and its application before the Tribunal filed under Order 14 Rule 5 CPC deserves to be allowed in part. SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 20 SBCWP NO.1813/09:- 16) This writ petition has been filed by the petitioner insurance company against the order rejecting their application by which it requested the Tribunal to proceed ex-parte against the non-claimant No.1 Jai Gopal, the driver of the vehicle. This application was grounded on the fact that the said driver was facing a criminal trial in the court of learned Civil Judge (Junior Division) Cum First class Jaipur and that he absconded and for that reason, the trial court declared him as absconder and issued standing warrant against him. Since he is not appearing to face the trial, the proceedings were directed to be initiated under Section 83 for attachment of his property. This application merely reflects an over zealous approach on the part of the insurance company, which had no justification to make such application before the Tribunal as the non applicant was duly represented before it by an authorised advocate and also filed written- statement. Filing of the application was wholly uncalled for and the learned Tribunal, in my SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 21 considered view, was fully justified in rejecting such application. The insurance company when engaged in litigation before the Tribunal in a claim petition demanding compensation for death, is expected to behave responsibly and sensibly and not like an ordinary litigant raising such pleas, which are ex-facie frivolous and baseless. Whatever be the effect of the driver having been declared absconder in criminal trial, so long as he is duly represented by his advocate in the present case having filed written-statement, he cannot be proceeded ex-parte even in the proceedings before the Tribunal if he fails to adduce any evidence. 17) The Tribunal was therefore perfectly justified in rejecting the application by which petitioner insurance company had requested to proceed ex-parte against the driver Jai Gopal. The present writ petition filed by the insurance company therefore deserves to be rejected with costs which is quantified at Rs.5,000/-. SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 22 SBCWP NO.1814/09:- 18) This writ petition has been filed by the insurance company against the order rejecting application by which it prayed for a direction to the Regional Transport Authority of Sonepat and Rohtak to produce all the relevant and necessary original records with regard to registration and transfer of vehicle No.HR- 10/3976 from 6/9/1990, when it was first registered and till the date of accident on 27/3/1997. 19) Learned counsel for the petitioner has argued that even though the original record relating to registration/transfer of truck in question was not available with either of the registering authorities at Sonipath or Rohtak, the Tribunal has yet recorded a finding that the registered owner of the vehicle in question was non-claimant Santraj Singh. Learned counsel contended that action of the petitioner to request the Tribunal for summoning the record and seeking amendment in the written-statement was actuated on account of the report of their SBCWP NO.1812/09. SBCWP NO.1813/09. SBCWP NO.1814/09. SBCWP NO.1815/09. 23 investigator Shri Hawa Singh and specially on the basis of Certificate issued by the Registering Authority at Sonipath on 8/5/2008. 20) Learned counsel for the petitioner submitted that the Tribunal illegally ignored the certificate dated 8/5/2008 issued by the RTA Sonipath