IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.88 of 2009 THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED. MOTIJHEEL, MUZAFFARPUR THROUGH THE REGIONAL MANAGER-CUM-CONSTITUTED ATTORNEY, REGIONAL OFFICE, THE ORIENTAL INSURANCE CO. LTD. PIRMUHANI, PATNA …….. …….. APPELLANT Versus 1.BIKAU DHOBI SON OF LATE SADIK DHOBI, RESIDENT OF MOHALLA-BRAHAMPURA, P.S.-BRAHAMPURA, DISTRICT-MUZAFFARPUR 2.MD. HASSAN SON OF LATE SUKHI HUSSAIN, RESIDNET OF VILLAGE-KESHOPUR KORAR, P.S.-THAWE, DISTRICT-GOPALGANJ ……. …….. RESPONDENTS ----------- 12. 27.4.2011. The present miscellaneous appeal has been preferred under section 173 of the Motor Vehicles Act, 1988 against the judgment and award passed by 9th Additional Motor Vehicles Accident Claim Tribunal, Muzaffarpur, (hereinafter to be referred to as ‘Claim Tribunal’)in Claim Case No.118 of 2006 whereby the appellant was directed to make payment of compensation amount of Rs.1,74,500/- to the claimant along with simple interest @ 6% per annum from the date of filing of the case till the date of payment. Heard Mr. Durgesh Kumar Singh, learned counsel for the appellant, Mr.Dhananjay Kumar, learned counsel for respondent no.1 and learned counsel appearing on behalf of respondent no.2/the owner of the vehicle. In the present case, the accident had taken place on 1.5.2006 in which younger brother of the claimant died. In the said occurrence first information report vide Majgarh P.S. Case No.65 of 2006 was registered for the offence under sections 279 and 304A of 2 the Indian Penal Code. After investigation, charge-sheet was submitted against the driver of the vehicle i.e Marshal Jeep bearing registration no. BR-28-6811. It is not in dispute that the vehicle in question was insured by the appellant/ Oriental Insurance Company Ltd. The parents of the deceased had already died and respondent no.1 being elder brother filed the claim case under section 166 of the Motor Vehicles Act claiming compensation of Rs.3,10,000/- under various heads. In the claim case, the appellant participated before the Claim Tribunal and three witnesses were examined in support of the claim and the claimant was examined as A.W.1. In the case first information report, charge sheet and post- mortem report were got exhibited as 1, 2 and 3 respectively. However, the policy in question was not got exhibited. The policy in question was not disputed by the parties before the Claim Tribunal and finally after hearing the parties the Claim Tribunal passed the judgment and award in favour of the claimant and directed for payment of compensation amount as indicated above. Mr. Durgesh Kumar Singh, learned counsel for the appellant has questioned the judgment and award on two folds. It was submitted that since the claimant was not dependant on the deceased, a lump sum amount of compensation was required to be paid in the present case and not in terms of schedule-II of the Motor Vehicles Act. The other point which has been raised is that before the Claim Tribunal the driver of the offending vehicle was not impleaded as a party and in absence of driver before the Claim 3 Tribunal, the Tribunal was not required to proceed. Accordingly, it has been submitted that the judgment and award on both the grounds are liable to be set aside. While elaborating his argument for payment of lump sum amount of compensation, learned counsel for the appellant has heavily relied upon an order passed by this court reported in 2001(2) PLJR 500 (Pappu Mehtar Vs. Subhash Prasad Yadav and Anr.). It was submitted by learned counsel for the appellant that in the said case also the claimant was not treated as dependant and, as such, this court had directed for payment of lump sum amount of compensation. In similar manner, it was submitted that, in the present case, the claimant was not dependant and in this case also the ClaimTribunal instead of directing for payment of such huge amount of compensation, a lump sum amount of compensation was required to be paid by the appellant. On the point of non- impleading of driver of offending vehicle, he has relied upon a judgment reported in (2007) 5 S.C.C.428 (Oriental Insurance Co. Ltd. Vs. Meena Variyal and Ors.) and a judgment reported in 2011 (1) T.A.C. 798 (Bom) (United India Insurance Co. Ltd. Vs. Smt. Ratna Potat Patil and Anr.). It was submitted that the driver was necessary party. Since it was a case of claim due to death of brother of the claimant which had occurred due to rash and negligent driving, in absence of the driver of offending vehicle, this issue was difficult to be decided. The learned Claim Tribunal has proceeded with the claim case even in absence of driver of offending vehicle and, as such, the judgment and award is liable to be set aside. 4 Mr. Dhananjay Kumar, learned counsel for the claimant-respondent no.1 has seriously opposed the prayer of the appellant. It was submitted that the decision referred to by learned counsel for the appellant i.e. Pappu Mehtar’s case (supra) is not applicable in the facts and circumstances of the present case. It was submitted that in Pappu Mehtar’s case claim was itself out rightly rejected by the Tribunal and thereafter the claimant had approached this court and this court, while allowing the appeal, had taken a lenient view and directed for payment of lump sum amount of compensation. On the issue of non-impleading of the driver, it was argued that in any event either owner or Insurance Company was required to be directed for payment of compensation amount and in absence of driver of the offending vehicle, no serious prejudice is caused to either of the parties and, as such, the argument advanced by learned counsel for the appellant that due to non-impleading of driver of the offending vehicle, the award is liable to be set aside is not tenable and is fit to be rejected. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. So far as question of payment of lump sum amount is concerned, no statutory provision has been brought to the notice of the court save and except the order passed in Pappu Mehtar’s case (supra). The said case was decided in view of the peculiar facts and circumstances and, that too, his claim was rejected by the Tribunal and thereafter the court had proceeded to compensate the claimant. Moreover, if statute prescribes a procedure, then, as per the settled law, action is to be 5 taken as per the statute. In the Motor Vehicles Act, 1988 there is specific provision under section 163(A) and in terms of the said provision schedule-II has been appended with this Act and there is specific provision to compute the claim and, as such, the court is of the opinion that the learned Claim Tribunal has rightly computed the claim and passed the judgment and award. So far as argument that in absence of driver, the Claim Tribunal was not required to proceed with the claim is concerned, the court is of the opinion that only due to absence of the driver neither party had suffered serious prejudice. Moreover, as per the scheme of the Act, compensation, in such a case, was required to be paid either by the owner or by the Insurance Company. Accordingly, on both the issues, the present appeal fails and the appeal stands rejected. The statutory amount deposited, under section 173 of the Act by the appellant, at the time of filing of the appeal, is directed to be remitted back to the Claim Tribunal for payment to the claimant. Md.S. ( Rakesh Kumar, J.)