MISC. APPEAL No.517 OF 1999 Against the judgment and award dated 24.7.1999 passed by Sri Hemant Kumar Srivastava, the learned 2nd Additional Motor Vehicle Accident Claim Tribunal, Kaimur at Bhabhua in Claim Case No. 8 of 1991/13 of 1996. The New India Assurance Company ….Opp. Party/Respondent No.5/Appellant Versus Sabhajeet Seth & Ors ……. Applicants/Respondents ******** For the appellant : Mr. R. K. P. Singh, Advocate Mr. Paras Mani, Advocate For the Claimants/Respondents : Mr. Surya Kant Mishra, Advocate Mr. Gajendra Kumar Sah For Respondent No.5 : Mr. Ram Chandra Lal Das Dated : 31st day of August, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The New India Assurance Company Limited has filed this Misc. Appeal against the judgment and award dated 24.7.1999 passed by the learned 2nd Additional Motor Vehicle Accident Claim Tribunal, Kaimur at Bhabhua in Claim Case No. 8 of 1991/13 of 1996. 2. The original claimant respondent No.1 Hira Lal filed aforesaid claim claiming Rs.2,75,000/- on account of death of his son Lal Chand who died in motor accident on 29.8.1990 which took place on G.T. Road near Sakari More. It is alleged that there was head on collusion between two trucks bearing numbers DL1L-2573 and BRB- 8681. The deceased Lal Chand was driving truck No. DL1L-2573. Mungeshwar Sahoo, J. -2- 3. The further case of the claimant is that Smt. Rupa Rai the opposite party No.3 is the owner of truck no. DL1L-2573. On 29.8.1990 the deceased was driving the said truck and was going to Dehari from Varanasi. Near Sakari More the other truck i.e. BRB- 8681 came from the side of Sasaram dashed front portion of the truck. As a result of which one Wakil Khatik and Lal Chand were injured badly. They were taken to hospital but both of them died. The A.S.I., Kudra Police Station has recorded his self statement and Kudra P.S. Case No. 116 was initiated. 4. The further case of the claimant is that he is an old man and was fully dependent on his son the deceased Lal Chand and, therefore, he claimed compensation of Rs.2,75,000/-. 5. It appears that earlier the claim case was filed in the form of suit and thereafter subsequently, it was filed in proper form. Initially Rs. 75,000/- was claimed and subsequently after amendment the compensation was claimed for Rs.2,75,000/-. It further appears that initially the New India Assurance Company Limited was not made party in the claim case but by order dated 4.9.1996 the appellant was made party in the claim case. 6. On being noticed the opposite party No.4 United India Insurance Company Limited who is respondent No.5 in this appeal filed separate contesting written statement. The opposite party No.5 who is present appellant filed a separate written statement. It appears that the United India Insurance Company Limited is an insurer of truck no. BRB 8681 whereas the appellant New India Assurance Company Limited is insurer of truck no. DL1L 2573. 7. The defence of the United India Insurance Company is that the claim application is not maintainable and the accident did not -3- take place as alleged by the claimant. However, the insurance of the truck was admitted. 8. The defence of the appellant The New Indian Assurance Company Limited is that the truck No. DL1L 2573 was not insured. 9. On the basis of the pleadings of the parties the learned Tribunal framed seven issues. After trial the learned Tribunal found that the report of Motor Vehicle Inspector clearly go to show that the driver of both the trucks were responsible for the alleged occurrence as such it is a case of contributory negligence. The learned Tribunal, therefore, held that the United India Insurance Company Limited who is insurer of truck No. BRB 8681 is liable to pay 50% of the total compensation and further held that the appellant is liable to pay 50% of the total compensation. 10. The learned Tribunal calculated just compensation at Rs.1,30,000/- out of that Rs.25,000/- had already been paid under Section 140 of the Motor Vehicle Act and, therefore, the learned Tribunal directed the insurance company appellant and respondent No.5 United India Insurance Company Limited to pay 50% each of the remaining compensation of Rs.1,05,000/- with interest @ 12% per annum from the date of filing of the claim till its final payment. 11. The learned counsel for the appellant Mr. R.K.P. Singh, submitted that in the original application the appellant New India Assurance Company Limited was not made party. Subsequently, by the order of the Court dated 4.6.1996 the appellant was made party and, therefore, the claim application so far it relates to the appellant is time barred. The learned counsel further submitted that originally the claimant claimed compensation of Rs.75,000/- only whereas he amended the compensation and claimed Rs.2,75,000/-. The learned counsel next submitted that the case of the claimant is that because -4- of rash and negligence driving of the driver of truck no. BRB 8681 the accident took place in which the claimant’s son died but the learned court below came to the conclusion that there was head on collusion and the drivers of both the truck are responsible for the same and made a case of contributory negligence. The learned counsel submitted that no case of contributory negligence was made in the claim application nor any evidence was adduced on this point. The learned counsel next submitted that even if the finding of the learned court below regarding contributory negligence is accepted to be valid finding then also the deceased being the driver who contributed 50% for his death and, therefore, from the total compensation 50% should have been deducted because the appellant cannot be held responsible to pay 50% for the contributory negligence of the deceased himself. The learned counsel relied upon various decisions with respect to these points. 12. On the other hand the learned counsel appearing on behalf of the claimants submitted that there is no illegality in the impugned judgment and award. Learned counsel further submitted that no question of limitation arises in this case because by the order of the Court the insurance company-appellant has been made opposite party in the claim application and further that the claim Tribunal is required to assess the just compensation and moreover, the amendment application was filed in the court below for amendment of the claim and after allowing the amendment the claim has been enhanced to Rs.2,75,000/- and, therefore, the same cannot be interfered with in this appeal. The learned counsel further submitted that so far quantum is concerned the insurance company has got no authority to challenge the same. -5- 13. The learned counsel appearing on behalf of the respondent No.5 United India Insurance Company Limited submitted that the respondent No.5 has already deposited 50% of the amount as directed by the learned Tribunal and, therefore, he has already complied with the award. 14. In view of the above facts and circumstances of the case, the questions arise for consideration are, whether the claim application was barred against the appellant and whether the appellant is liable to pay the compensation as awarded by the learned Tribunal. 15. The parties have adduced oral as well as documentary evidence to prove their respective cases. According to the claimants the vehicle no. BRB 8681 is the offending vehicle. From perusal of the judgment it appears that the learned Tribunal found that the witness No.1 and witness No.2 examined on behalf of the claimant had not at all seen the accident and so far accident is concerned they are hearsay witnesses. Further it appears that the learned Tribunal on the basis of Exts. 4, 5 6, 7, 8 and 9 series found that the deceased died because of the accident between truck nos. DL1L 2573 and BRB 8681. 16. It appears that appellant has not adduced evidence in this case. Ext. 9 and 9-A are report of the Motor Vehicle Inspector. On the basis of these reports the learned Tribunal found that the deceased who was the driver of truck No.DL1L-2573 also liable for contributory negligence. 17. Admittedly, the said deceased Lal Chand was the employee of opposite party No.3 who is owner of the truck no. DL1L-2573. The learned tribunal found that because the deceased died in course of his employment while discharging his duties, the owner-opposite -6- party No.3 is liable to pay compensation in respect of the death of Lal Chand and since there was contributory negligence between the drivers of both the truck the learned Tribunal held that the appellant is liable to pay 50% of the compensation awarded. 18. Learned counsel for the appellant relied upon 2003(3) SCC 731 Municipal Corporation of Greater Bombay Vs. Luxman Iyer and others and on the basis of this decision submitted for 50% negligence of the deceased, the appellant is not liable to pay any compensation. From perusal of the said decisions of the Apex Court, it appears that in that case the deceased was a cyclist and, therefore, there was no insurance company involved in that case. 19. Learned counsel next relied upon (1996) 2 SCC 157 Indrani Raja Durai and other Vs. Madras Motor and General Insurance Company and others. In that case it appears that the deceased was driving a motorcycle of his own and in the accident with bus he died. It was held that the negligence was apportioned as 60% - 40%. The insurance company of the bus was directed to pay Rs. 60,000/- out of Rs.1,00,000/- and Rs.40,000/- was held to be foregone because of contributory negligence. It appears that in that case also there was no question of employer and employment. 20. So far limitation is concerned the learned counsel for the appellant relied upon AIR 1962 SC 361 Ramlal and others Vs. Rewa Coolfields Ltd. and submitted that after expiry of time the appellant could not have been added as opposite party-respondent in the claim case. The learned counsel further submitted that there was only six months’ time for filing claim application and the power of the court is to condone the delay was only for six months and beyond that the application was time barred. The appellant has been added as party in the year 1996. The learned counsel on this point also -7- relied upon 1967 SC 278 Ram Prasad Dagaduram Vs. Vijay Kumar Motilal Hirakhanwala and others, 1998 SC 2276 P.K. Ramchandrarn Vs. State of Kerala and another. The learned counsel on the basis of these decisions submitted that the law of limitation has to be applied with all its rigour prescribed by statutes. From perusal of all these decisions it appears that none of the decisions relates to claim of motor vehicle accident. In a decision reported in 1998 (1) PLJR 572 Sonma Devi and others Vs. The Branch Manager Oriental Insurance Company, Biharsharif and others this court held that the deletion of sub Section 3 of Section 166 of Motor Vehicle Act, 1988 by the 1994 Amendment Act can be given to pending claim cases. It appears that in that case the claim application was dismissed on the ground of limitation. This Court set aside the order of dismissal and remanded the matter with a direction to the Tribunal to decide the case on merits. 21. In 1996 (1) ACC 603 SC Dhannalal Vs. D.P. Vijay Vargia and another the Hon’ble Supreme Court also held that benefit of deletion of sub Section 3 of Section 166 of the Motor Vehicle Act can be given to pending claim cases. The said decision of the Hon’ble Supreme Court has been followed by this Court in the case of Sonma Devi (Supra). In view of this settled principles of law laid down by the Hon’ble Supreme Court, I find no force in the submission made by the learned counsel appearing for the appellant. 22. On the point of contributory negligence the learned counsel for the appellant also relied upon (2008) 3 SCC 748 T.O. Anthony Vs. Karvarnan and others and submitted that in no case the appellant is liable to pay 50% for the contributory negligence of the deceased in the present case. From perusal of the said decision, it appears that it is a case of injury and the claimant was held to be -8- guilty of contrary negligence. It appears that in that case the claimant was driver of Kerala State Rod Transport Corporation and, therefore, in that case also insurance company was not involved. In the present case admittedly the deceased was employee of opposite party No.3 and he died in course of the employment while discharging his duties. In my opinion therefore, all the decisions cited on this point by the learned counsel for the appellant are not helpful to him. Since the owner is liable to pay the deceased employee, the insurance company is liable to indemnify the owner. 23. So far amendment of claim value is concerned it is for the Tribunal to decide as to what is the just and proper compensation. In my opinion therefore, allowing the amendment is no ground for interfering with the impugned judgment. Further because the amendment is allowed, therefore, the impugned judgment and award cannot be said to be vitiated. Moreover, the learned Tribunal has not allowed the whole compensation claimed by the claimant. 24. In view of my above discussion, I find no merit in this appeal and accordingly, this Misc. Appeal is dismissed. 25. However, the statutory amount deposited by the appellant before this Court shall be transmitted to the court below so that it may be paid to the claimant which may be adjusted in the share of the appellant. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 31st August, 2010 S.S./N.A.F.R.