# Samarjeet Singh v. Khursheed Khan & Ors

- **Citation:** (2020) 12 ILRA 123
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-23
- **Case number:** First Appeal From Order No. 2213 of 2019
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/samarjeet-singh-v-khursheed-khan-ors-45444
- **Pages:** 13

## Headnote

A. Civil Law -Motor Vehicles Act (59 of 1988) -
Section 168 - Compensation - Injury & disability
incurred due to the vehicular accident - Tribunal took
over hyper technical stand in not granting any
compensation - Tribunal disbelieved the medical
certificate produced - medical Board opined that
claimant had 50% total disability - Held - Medical
documents which are public document under the
Evidence Act have to be believed - It was no body
case that the document of Medical Board was
fabricated - insurance company or the owner had not
doubted the veracity of the said document - Tribunal
wrongly disbelieved the medical certificate issued in
favour of the claimant by the competent medical
board (Para 18)

B. Civil Law -Motor Vehicles Act (59 of
1988) - Section 166 - Code Of Civil Procedure
(5 of 1908) , O.9 R.13 - Setting aside decree ex
parte against defendant - Accident claim - Motor
Accident Claims Tribunal awarded compensation
holding owner solely liable - Owner of offending
vehicle filed application under O. 9 Rule 13 of CPC
- application was simply filed to show that the
driver of the vehicle had proper driving licence &
exoneration of the insurance company was not call
for - no fresh evidence even after the application
O. 9 Rule 13 of CPC was filed except the xrox copy
of the driving licence of driver of the offending
truck - owner did not challenged the quantum of
compensation awarded to the claimant nor
requested for rehearing or deciding all the issues
afresh - there was no prayer to set aside the entire
award - By the subsequent award, tribunal
fastened liability on owner and insurance company
& reduced the compensation payable to the
claimant - Held - Tribunal could not have reviewed
the compensation awarded without any further
pleadings or contrary evidence led after the order
of under 9 Rule 13 of the Code was passed -
Tribunal wrongly ventured to review the entire
earlier award not even challenged before it nor
any averment was made that entire award
required to be re-answered (Para 26)

C. Civil Law -Motor Vehicles Act (59 of 1988)
- Section 168 - Compensation - Deduction of
TDS from amount of awarded compensation - total
amount of interest, accrued on the principal
amount of compensation is to be apportioned on
financial year to financial year basis - if the interest
payable to claimant for any financial year exceeds
Rs.50,000/-, insurance company/owner is/are
entitled to deduct appropriate amount under the
head of 'Tax Deducted at Source' as provided u/s
194A (3) (ix) of the Income Tax Act, 1961 - if the
amount of interest does not exceeds Rs.50,000/-
in any financial year, claimant allowed to withdraw
the amount without producing the certificate from
the concerned Income- Tax Authority (Para 31)

Appeal allowed. (E-5)

List of Cases cited: -

## Text

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12 All. Samarjeet Singh Vs. Khursheed Khan Ors.
123
(2020)12ILR A123
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 2213 of 2019

Samarjeet Singh ...Appellant
Versus
Khursheed Khan & Ors. ...Respondents

Counsel for the Appellant:
Sri Vidya Kant Shukla

Counsel for the Respondents:
Sri Pawan Kumar Singh, Sri Pawan Kumar
Singh, Sri Vijay Prakash Mishra

A. Civil Law -Motor Vehicles Act (59 of 1988) -
Section 168 - Compensation - Injury & disability
incurred due to the vehicular accident - Tribunal took
over hyper technical stand in not granting any
compensation - Tribunal disbelieved the medical
certificate produced - medical Board opined that
claimant had 50% total disability - Held - Medical
documents which are public document under the
Evidence Act have to be believed - It was no body
case that the document of Medical Board was
fabricated - insurance company or the owner had not
doubted the veracity of the said document - Tribunal
wrongly disbelieved the medical certificate issued in
favour of the claimant by the competent medical
board (Para 18)

B. Civil Law -Motor Vehicles Act (59 of
1988) - Section 166 - Code Of Civil Procedure
(5 of 1908) , O.9 R.13 - Setting aside decree ex
parte against defendant - Accident claim - Motor
Accident Claims Tribunal awarded compensation
holding owner solely liable - Owner of offending
vehicle filed application under O. 9 Rule 13 of CPC
- application was simply filed to show that the
driver of the vehicle had proper driving licence &
exoneration of the insurance company was not call
for - no fresh evidence even after the application
O. 9 Rule 13 of CPC was filed except the xrox copy
of the driving licence of driver of the offending
truck - owner did not challenged the quantum of
compensation awarded to the claimant nor
requested for rehearing or deciding all the issues
afresh - there was no prayer to set aside the entire
award - By the subsequent award, tribunal
fastened liability on owner and insurance company
& reduced the compensation payable to the
claimant - Held - Tribunal could not have reviewed
the compensation awarded without any further
pleadings or contrary evidence led after the order
of under 9 Rule 13 of the Code was passed -
Tribunal wrongly ventured to review the entire
earlier award not even challenged before it nor
any averment was made that entire award
required to be re-answered (Para 26)

C. Civil Law -Motor Vehicles Act (59 of 1988)
- Section 168 - Compensation - Deduction of
TDS from amount of awarded compensation - total
amount of interest, accrued on the principal
amount of compensation is to be apportioned on
financial year to financial year basis - if the interest
payable to claimant for any financial year exceeds
Rs.50,000/-, insurance company/owner is/are
entitled to deduct appropriate amount under the
head of 'Tax Deducted at Source' as provided u/s
194A (3) (ix) of the Income Tax Act, 1961 - if the
amount of interest does not exceeds Rs.50,000/-
in any financial year, claimant allowed to withdraw
the amount without producing the certificate from
the concerned Income- Tax Authority (Para 31)

Appeal allowed. (E-5)

List of Cases cited: -

1. Raj Kumar Vs Ajay Kumar & anr .(2011) 1
SCC 343, 2010 LawSuit(SC) 1081, 2011(1) TAC
page 785 (SC)

2. Hari Babu Vs Amrit Lal & ors. 2019(2) TAC 718 (All.)

3. Mahoora Bano Vs National Insurance
Company & ors. 2020(1) T.A.C. 688 (S.C.)

4. National Insurance Company Ltd. Vs Mannat
Johal & ors. Civil Appeal Nos. 1079-4081 of
2019 dt. 23.4.2019

5. Arun Bajpai Vs Mushir Ahmad & ors. F.A.F.O.
No.3183 of 2009 Dt 13.12.2017
124 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Oriental Insurance Company Limited Vs
Surendra Umrao & anr. 2007(3)TAC 40 (All)

7.
Sudhir
Bhuiya
Vs
National
Insurance
Company Ltd. (2005) ACJ 509

8. Sunita & ors. Vs Raj St. Road Transport Corp
& anr. 2019 LawSuit (SC)190,

9. Mangla Ram Vs Oriental Insurance Company
Limited & ors. 2018 (5) SCC 656

10. Vimla Devi & ors. Vs National Insurance
Company Limited & anr. (2019) 2 SCC 186

11.
National
Insurance
Co.
Ltd.
Vs
Smt.Vidyawati Devi & 2 ors. F.A.F.O. No.2389 of
2016 dt 27.7.2016

12. Smt. Patti Devi @ Suman Tripathi & anr. Vs
Sita Ram Gupta & ors. FAFO No.3222 of 2004

13. Chameli Wali Vs Municipal Corporation of
Delhi (1986) 4 SCC 503

14. Smt. Hansaguti P. Ladhani Vs The Oriental
Insurance Company Ltd. 2007(2) GLH 291

15. A.V. Padma Vs Venugopal2012 (1) GLH
(SC), 442

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Vidya Kant Shukla,
learned counsel for the appellant and Sri
Vijay Prakash Mishra, learned counsel for
Insurance Company. None appears for the
owner and driver of the vehicle involved in
the accident.

2. his appeal, at the behest of the
claimant, challenges the judgment and
award dated 28.5.2019 passed by Motor
Accident Claims Tribunal, Kanpur Nagar
(hereinafter referred to as 'Tribunal') in
MACP No.271 of 2013 re-deciding the
matter and reducing the compensation
fromRs.3,79,220/-toRs1,19606/with
interest at 7 %from date of judgment. The
tribunal re decided the entire matter on an
application by the owner of the vehicle
involved in the accident and against whom
the earlier Tribunal had passed judgment
and decree holding him solely liable to
compensate the claimant exonerating the
insurance company. By the subsequent
award the tribunal fastened the liability on
owner and insurance company but reduced
the compensation payable to the claimant
injured non tortfessor.

3. According to Sri Vidya Kant
Shukla, learned Advocate for the appellant,
the application was filed under Order 9
Rule 13 of C.P. Code 1908 (herein after
referred as The Code) by the owner of the
vehicle as the award was passed against the
owner alone as it was held that the owner
had failed to prove that the driver who was
driving the offending vehicle and who was
held to be negligent had a valid driving
license. The insurance company was
exonerated in the decision rendered on 29 4
2017 which was not challenged. The only
reason for requesting, setting aside of the
award was that maybe review was not
maintainable and therefore an application
under Order 9 Rule 13of the Code was
filed. The application was made only
bringing to the notice that the driver had a
proper driving licence and there was no
prayer to set aside the entire award so that
insurance company can be held liable to
satisfy the award as all other facts were
proved before the Tribunal and no fresh
evidence even after the application under
Order 9 Rule 13 was placed before the
Tribunal except the x-rox copy of the
driving licence of the driver of the
offending truck. The owner had not
challenged the quantum or compensation
awarded to the claimant by the award dated
29.4.2017
which
was
sought
to
be
12 All. Samarjeet Singh Vs. Khursheed Khan Ors.
125
reviewed. The owner nor the insurance
company
requested
for
rehearing
or
deciding all the issues afresh. The learned
counsel for the appellant has heavily relied
on five judgment namely, in Raj Kumar Vs.
Ajay
Kumar
and
another,
2010
LawSuit(SC) 1081, Hari Babu Versus
Amrit Lal and others, 2019(2) T.A.C. 718
(All.), Mahoora Bano Versus National
Insurance Company and others, 2020(1)
T.A.C. 688 (S.C.) , Civil Appeal Nos. 10794081
of
2019
(National
Insurance
Company Limited Vs. Mannat Johal &
others decided by Supreme Court on
23.4.2019 and also of Allahabad High
Court in First Appeal From Order No.3183
of 2009 ( Arun Bajpai Vs. Mushir Ahmad
and others, decided on 13.12.2017.

4. Per contra, learned counsel for the
insurance company while supporting the
judgment of the Tribunal whose judgment
is impugned herein relied on decision of
Supreme Court in Vijay Singh Vs. Shanti
Devi and others, AIR 2017 SC 5672. and hs
contended that once an ex-parte decree has
been set aside, the matter had to bed
decided afresh. The said decision will not
apply at the out set as it was in execution
petition and both the appeals against the exparte decree was filed . The execution
petition was filed meanwhile the appellant
took the possession. The application of the
defendant for setting aside ex-parte decree
was allowed throughout which is not the
case in our case . We are in the whelm
beneficial peace of legislation where the
Tribunal was not even asked to reconsider
the question of quantum and interest.

5. Brief facts and the list of dates and
events and the manner in which the learned
Tribunal has passed the award dated 28 5
2019 whereby the owner and the Insurance
Company without pleading any positive
evidence have been successful in seeing
that the compensation awarded to the
appellant by award dated 29 4 2017 who by
profession was a driver and had suffered
huge disability, was practically left without
any compensation because of the fault of
the owner and the subsequent change in the
presiding officer of the Tribunal.

6. The facts would demonstrate that for
no fault of the appellant herein, the Tribunal
who could not have refused to grant
compensation practically non suited, the
appellant qua his injuries and disability
incurred due to the vehicular accident The
subsequent award shows that the Tribunal
took over hyper technical stand in not
granting any compensation as it was of the
view that the claimant had failed to prove his
disability as the treating doctor was not
examined on oath and disbelieved the
medical certificate produced and not objected
to be read in evidence by any of the parties.

7. The claim petition was preferred by
the claimant contending that on the date of
accident, he was serving as driver on
vehicle bearing number U.P. -70 BT 4174
Tata AC which the claimant appellant
herein was driving. On 17.6.2011 from
Bareilly to Kanpur at about 3:00 O'clock at
the place of known as Baba Thaba. The
driver of the truck bearing truck U.P. 25 T5823 drove his truck rashly and negligently
and the driver rammed into the truck driven
by the appellant herein. The appellant had
multiple fractures of his lower limbs. He
was admitted in the hospital of Dr.
Kamlesh Dwivedi. The report of the said
accident was reduced to writing on
20.6.2011 in Police Station at Katra,
Bareilly. Later on he shifted and was
hospitalized at Siddh Vinayak Hospital,
Bareilly thereafter he was shifted to
Navyug Nursing Home, Kanpur. Later on
126 INDIAN LAW REPORTS ALLAHABAD SERIES
he remained as aa indoor patient in Navyug
Nursing Home, Kanpur from 29.6.2011 to
15.7.2011, thereafter also his treatment
continued and he was unable to drive any
vehicle as a paid driver. The owner of the
truck, namely, Khursheed Khan filed a joint
reply on his behalf and the driver
contending that it was claimant who was
driving the vehicle in a rash and negligent
manner. It was contended in written
statement that the driver of the truck owned
by opponent no 1 had a valid driving
license and the vehicle was insured with
Shree Ram General Insurance Company
Limited and the insurance cover note was
filed at Exhibit-106 G. The insurance
company also filed its reply of denial.

8. The Tribunal framed three issues.
The first issue related to negligence of the
driver of U.P. 25 T-5823 namely opponent
The issue no. 2 was whether the accident
occurred due to the negligence of the
claimant himself and Issue no. 3 related to
from whom and how much compensation
the claimant was entitled.

9. The claimant produced several
documents namely 9G was discharge card
of Navyug Nursing Home, Kanpur, 10 G
was his driving licence, 11G was his
medical certificate issued the by Medical
Board. He had submitted several bills of his
medicines. There was certificate of his
disability at Exhibit 86 and 87. His salary
certificate was at 101G and 102 G. He had
also filed the charge sheet which was laid
against Sukh Pal. The FIR, X-ray and
photographs showing the injuries caused to
him were at Exhibit- 125G and 126G.

10. The owner produced documents
being permit and the policy of insurance.
The respondent no. 3 did not produce any
document nor was any witness examined.

11. Issue nos. 1 and 2 are not in
dispute before this Court but it is necessary
to jot down the same that the Tribunal
considered the driver of the other vehicle to
be solely responsible for the accident. The
issue no.3, the Tribunal considered his
income on the basis of his evidence, basis
of x-ray plates, basis of medical certificate
that he was entitled to a sum of Rs.84,220/-
towards medical expenses. As far as
permanent disability is concerned, he has
testified on oath that the medical board had
examined him and he was declared to be
disabled to the effect of 50%. The
arguments of Insurance Company were that
he had got his license renewed, therefore, it
cannot be said that he had been rendered
without any work. The said submission did
not find favour with the Tribunal . The
Tribunal considered his income to be
Rs.4,000/- per month and held that his
yearly income would be Rs.48,000/. The
Tribunal considered his loss of income to
be 40% and relied on authoritative
decisions squarely covering the issue of
admissibility
of
documents
namely,
decision titled Oriental Insurance Company
Limited Versus Surendra Umrao and
another, 2007(3)TAC 40 (Allahabad) and
Raj Kumar Versus Ajai Kumar and
another, 2011(1) TAC page 785 (SC). as
the age of the claimant was in the age
group of 40-45, multiplier of 15 was
granted. He was awarded as sum of
Rs.2,000/- for diet and Rs.5,000/- to be
considered for mental shock suffering
bringing the amount of Rs.3,79,220/-with
9% interest from date of filing of the claim
petition till deposit of amount this was as
per first award dated 29 4 2017 The
Tribunal at the end instead of giving
recovery rights held the owner responsible
exonerating the Insurance company. It is
this exoneration of the insurance company
which has caused all the problems for the
12 All. Samarjeet Singh Vs. Khursheed Khan Ors.
127
claimant the reason being immediately after
the judgment and decree was drawn, the
claimant through his Advocate gave a
notice to the owner to pay him the amount.
The owner did not file review application
for limited purpose or an application under
section 151 of the Code but an application
under Order 9 Rule 13 of the Code was
filed may be because he was advised that
review may not be maintainable,due to old
decision of this high court, his application
under Order 9 Rule 13of Code wherein he
had contended that he had given all
documents to his advocate who had not
produced the same. The owner produced
the xerox copy of driving license of his
driver.

12. The application depicted that it
was a dispute between insurance company
and the owner and the claimant consented
for decree to be sent aside. The decree
came to be set aside on 29.11.2018 it had
proceeded ex-parte against the original
defendant no. 2 and 3 namely the driver
and the insurance company on that date the
advocate for claimant and owner were
present..

13. On 28.11.2018 the application
under Order -9 Rule 13 of the Code which
could not have been granted was allowed,
however, as that has not been challenged,
the same is not delved into its correctness
or otherwise,.

14. On 28.11.2018 the decree was set
aside under Order 9 Rule 13 of the Code
and framing fresh issue being issue no.4
about license. The reason for filing the
application was to show that the the driver
of the vehicle had proper driving licence
and that exoneration of the insurance
company was not call for. The Tribunal
after passing the said order allowing the
application as the order sheet goes to shows
order was passed on 30.11.2018 and the
matter was kept on 3.12.2018 for hearing or
evidence of of the defendants.

15. On 20.12.2018 the matter was
further fixed on 7.3.2019 again it was listed
on 7.3.2019, 16.3.2019, 3.4.2019 and
16.5.2019. The record does not show that
after the matter was restored to file by the
Tribunal, the Tribunal ever listed the matter
for further evidence of the claimant. The
new presiding officer heard the matter on
21.5.2019 and on 25.5.2019 and the
Tribunal
listed
the
mater
for
pronouncement
of
judgment.
The
impugned judgment whereby the Tribunal
very strangely accepted the finding on issue
no.2 of the earlier award and answered
newly framed issue no 4 but though it was
called upon only to decide newly framed
issue no 4 decided all issues without any
new recording of evidence or calling upon
the claimant to adduce evidence and
practically
as
narrated
herein
above
reviewed the award of predecessor and did
not take into consideration the decision of
this High Court in Oriental Insurance
Company ( supra) instead though no one
had cited the decision of the Calcutta High
Court in Sudhir Bhuiya Vs. National
Insurance Company Limited reported in
(2005) ACJ 509. The said decision does not
lay down straight jacket formula that the
genuineness
of
documents
must
be
fabricated. It was no body case that the
document of Medical Board was fabricated.
It is given by the head of the Kanpur
Medical Board. The insurance company or
the owner had also not doubted the veracity
of the said document. Even in the
proceeding which were concluded the said
document was believed and there was a
tacit acceptance of the same despite that the
Tribunal of its own misread the said
128 INDIAN LAW REPORTS ALLAHABAD SERIES
decision . The fact had to be proved by
following principles of natural justice
which unfortunately the Tribunal itself did
not follow. The Tribunal very strangely
accepted the X-rox copy of driving license
produced by the owner subsequently
without adducing any fresh evidence as is
borne out from the record, the Tribunal
decided issue no. 4 accepting the x-rox
copy of the driving licence. The opponent
namely the owner took adjournment on
7.3.2019 and he did not examine anybody.
The x-rox copy of the document produced
along with application Order 9 Rule 13 of
the Code has been accepted by the Tribunal
. The photo copy of driving licence of Sukh
Lal and x-rox copy of Form 54 was
produced by the owner on 3.12.2018 .
From 3.12.2018 till the judgment the record
does
not
show
that
any
evidence
whatsoever was laid by the opponent owner
herein save and accept producing the x-rox
copy of the driving licence of the driver
even without examining who had issued the
same accepted the xerox copy of the
driving license of the driver of the truck
who was held negligent and very strangely
disbelieved the medical certificate issued in
favour of the claimant by the competent
medical board and not by private doctor
and the claimant was taken totally unaware
and was not even aware that the Tribunal
had ever called upon to produce any fresh
evidence in support of his claim.

16. Very strangely, the learned
Tribunal brushed aside the government
document produced and which was earlier
not challenged and accepted by the earlier
presiding
officer
and
the
insurance
company. The Tribunal accepted the xerox
copy of the driving license and held the
insurance company liable the question is
should it hold the adverse against the
claimant whose claim was already accepted
by the earlier Tribunal and could the
Tribunal review not relying on the decision
of jurisdictional high court the answer is
the Tribunal could not have reviewed the
compensation awarded without any further
pleadings or contrary evidence led after the
order of under 9 Rule 13 of the Code was
passed.

17. While going through several
commentaries on powers under order 9 rule
13 0f the Code the undersigned could not
find any authoritative pronouncement on
this issue as it appears that the owner was
advised to file application under Order 9
Rule 13 as may be. He was advised that the
review may not be tenable. The earlier
tribunal has cited and relied and has even
discussed decision cited by the appellant
herein of jurisdictional High Court that the
Allahabad High Court but the later tribunal
in her zeal to decide against the claimant
very conveniently relied on the decision of
Calcutta High Court (supra) and and of the
Apex in Raj Kumar Versus Ajay Kumar (
infra ) which should not have been done.

18. However as this is appeal filed
under Section 173 of Motor Vehicle Act,
1988 this Court will even assume that the
powers vested in the Tribunal reconsidered
the issue of compensation. It should be
noted here that the Tribunal again made an
error
in
erroneously
interpreting
the
decision of Calcutta High Court and
misreading the judgment of Apex Court in
Raj Kumar Vs. Ajay Kumar and
another, reported in (2011) 1 SCC 343.
The High Court of Allahabad which is a
jurisdictional High Court has in its
judgment referred by the earlier Tribunal
held that medical documents which are
produced and it which are public document
under the Evidence Act have to be
believed. It was nobody case that the
12 All. Samarjeet Singh Vs. Khursheed Khan Ors.
129
compensation could not be granted. The
error which is error on the face on record
has to be corrected. Recently the Apex
Court has deprecated the decision where
the Tribunals have taken hyper technical
stand
and
have
applied
strictly
the
trappings of Civil Procedure and or
criminal procedure. It can also be seen
from the different angle that if the
insurance company was not impleaded but
if it is shown that it was liable in that case
also under Section 170 of the Motor
Vehicle Act, 1988 could have been
impleaded later on also under Section 166,
it is not always compulsory to array
insurance company. IN this case also thue
Tribunal could have exercised its powers
under Section 168 read with Section 169 of
the Act. The Tribunal ought to have
considered that the fresh lis was between
the owner and the insurance company and
not between the claimant and the owner or
the
insurance
company
whereby
the
Tribunal granted interest under Section 171
of Act from the date of the judgment. The
judgment was delayed not be cause of the
appellant but because of the application
filed by the owner. Hence, the said order is
also bad.

19. It has been time and again held
that trappings of civil and criminal
proceedings cannot be applied in a very
strict manner. I am fortified in my view by
the decisions in Sunita and others Vs.
Rajasthan
State
Road
Transport
Corporation and Another, 2019 LawSuit
(SC)190,
Mangla
Ram
Vs.
Oriental
Insurance Company Limited and Others,
2018 (5) SCC 656 and Vimla Devi and
others Vs. National Insurance Company
Limited and another, (2019) 2 SCC 186.

20. The compensation is ordered to be
reassessed in view of the submission made
by learned counsel for the appellant and in
view of and in view of the decision in
F.A.F.O. No.2389 of 2016 (National
Insurance Co. Ltd. Vs. Smt.Vidyawati Devi
And 2 Others) decided on 27.7.2016. The
Allahabad High Court in a recent decision
dated 31.7.2019 in FIRST APPEAL FROM
ORDER No.3222 of 2004 ( Smt. Patti Devi
Alias Suman Tripathi And another Versus
Sita Ram Gupta And Others) and also in
First Appeal From Order No. 113 of 2020
decided on 8.12.2017 wherein in this Court
has held as under which is reproduced
herein:-

"1. Heard Sri Nagendra Kumar
Singh for the appellant and Sri N.K.
Srivastava for the respondents.

2. This appeal challenges the
order dated 31.10.2001 passed by Motor
Accident Claims Tribunal, Deoria, in
M.A.C.P. No.599 of 1996.

3. I am pained that a girl of 16
years of age, who was before the Tribunal,
was awarded a sum of Rs.1 Lac but on an
application being made that Insurance
company joined should have been New
India and not United India. The Tribunal
reduced the compensation to Rs.2,000/-.
The new incumbent Judge undertook the
entire exercise of writing afresh new
judgment and reduced the claim to a sum of
Rs.2,000/- holding that it was not proved
that she had suffered partial disablement
and holding that the Insurance company
would be liable to pay compensation only
from the date it was impleaded.

4. This appeal is filed at the
behest of the claimant, who has sued
through her legal heir as she was minor at
the time of accident.

5. Learned counsel for the
claimant has submitted that the claimant
had sustained fracture and the amount of
Rs.2,000/- could not have been awarded
130 INDIAN LAW REPORTS ALLAHABAD SERIES
reviewing earlier judgment. The Tribunal
could not have reviewed its earlier decision
awarding Rs.1,00,000/- with interest. The
review was not permissible. Even it is
submitted that out of the said accident, one
person has died which shows the gravamen
and impact of the accident, this Court has
perused the paper-book and the record of
the lower court and though it is not
submitted in this case, earlier the matter
was decided in absence of the owner
wherein United India Insurance Company
was impleaded as party - respondent but
with whom there was no brevity of contract
of the owner.

6. In view of the decision of
UPSRTC Vs. Km. Mamta and others,
reported in AIR 2016 SCC 948, the
accident having taken place is not in
dispute. The claimant not being negligent is
not in dispute. The claimant was awarded a
sum of Rs.1 Lac is the very same claim vide
judgment dated 27.4.2000 is also not in
dispute but the said award was against the
owner as the claimant could not prove that
the vehicle was insured. The owner/
claimant thereafter came in review to show
that the vehicle was insured but was
insured
with
New
India
Insurance
Company Limited. The Tribunal of its own
decided all the issues afresh. The mute
question is could the Tribunal review its
own judgment Suo Motu on all issues and
alter the amount awarded in favour of a
destitute poor minor injured claimant, who
had suffered the injuries.

7. It is admitted position of fact
that the injuries sustained by the minor
would cause permanent partial disability, is
what is held earlier, and that is why a
learned Judge of the Tribunal held in
favour of the appellant vide judgment dated
27.4.2000 and awarded a sum of Rs.1 Lac
as he had become permanent disabled
being a young girl. Her left leg was
damaged even after filing of the appeal and
the claim petition even in the year 2016
and 2008, the position still continues when
she
filed
application
for
expeditious
hearing.

8. The judgment dated 27.4.2000
was never objected by the claimant or
owner
or
insurance
company.
An
application was given to correct the name
of the insurer immediately after the owner
was held liable.

9. Section 170 of the Motor
Vehicles Act read with Section 166 reads as
follows:-

"170. Impleading insurer in
certain cases.-- Where in the course of any
inquiry, the Claims Tribunal is satisfied
that ---

(a) there is collusion between the
person making the claim and the person
against whom the claim is made, or

(b) the person against whom the
claim is made has failed to contest the
claim,

it may, for reasons to be recorded in
writing, direct that the insurer who may be
liable in respect of such claim, shall be
impleaded as a party to the proceedings and the
insurer so impleaded shall thereupon have,
without prejudice to the provisions contained in
sub-section (2) of Section 149, the right to
contest the claim on all or any of the grounds
that are available to the person against whom
the claim has been made.

166.
Application
for
compensation.-- (1) An application for
compensation arising out of an accident of
the nature specified in sub-section (1) of
section 165 may be made--

(a) by the person who has
sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from
the accident, by all or any of the legal
representatives of the deceased; or
12 All. Samarjeet Singh Vs. Khursheed Khan Ors.
131

(d) by any agent duly authorised
by the person injured or all or any of the
legal representatives of the deceased, as the
case may be:

Provided that where all the legal
representatives of the deceased have not joined
in any such application for compensation, the
application shall be made on behalf of or for the
benefit of all the legal representatives of the
deceased and the legal representatives who have
not so joined, shall be impleaded as respondents
to the application.

(2) Every application under subsection (1) shall be made, at the option of
the claimant, either to the Claims Tribunal
having jurisdiction over the area in which
the accident occurred, or to the Claims
Tribunal within the local limits of whose
jurisdiction the claimant resides or carries
on business or within the local limits of
whose jurisdiction the defendant resides,
and shall be in such form and contain such
particulars as may be prescribed:

Provided that where no claim for
compensation under section 140 is made in
such application, the application shall contain a
separate statement to that effect immediately
before the signature of the applicant.

(3) ****

(4) The Claims Tribunal shall
treat any report of accidents forwarded to it
under sub-section (6) of Section 158 as an
application for compensation under this
Act."
and, therefore, the impleadment of an
Insurance company is not a must but under
Section 168 (3), which reads as follows:-

"168. Award of the Claims
Tribunal.--

(1)
..................................................

(2)
..................................................

(3) When an award is made under
this section, the person who is required to
pay any amount in terms of such award
shall, within thirty days of the date of
announcing the award by the Claims
Tribunal,
deposit
the
entire
amount
awarded in such manner as the Claims
Tribunal may direct."

10. In this case, it was the owner,
who was the person saddled with the
liability to make payment in the Ist
judgment. However, he came before the
Tribunal showing that his vehicle was
insured
with
New
India
Insurance
Company Limited. The said amount of
compensation could not have been altered
by the Tribunal. Therefore, the Tribunal has
erred in holding that the claimant was
entitled to only Rs.2,000/- which is farceable amount. The Tribunal held that the
rate of interest would be from the date of
award which is also not permissible. The
concept granting interest is as per Section
171 of the Motor Vehicles Act, which reads
as follows:-

"171. Award of interest where
any claim is allowed.-- Where any Claims
Tribunal allows a claim for compensation
made under this Act, such Tribunal may
direct that in addition to the amount of
compensation simple interest shall also be
paid at such rate and from such date not
earlier than the date of making the claim as
it may specify in this behalf."

and, therefore, the Tribunal has
committed an error in granting interest
only from the date the Insurance company
was impleaded. The interest was already
ordered to be paid from the date of claim
petition
by
order
dated
27.4.2000,
therefore, non-grant of interest is perverse.
The Insurance company has to be saddled
with entire liability to indemnify the
claimant if it feels that there is some
dispute between the Insurance company
and the owner. Non-joining of Insurance
company is not fatal for grant of interest.
132 INDIAN LAW REPORTS ALLAHABAD SERIES

11. The Tribunal in this case has
not exercised its judicial discretion. In this
case, there was no delay on the part of the
appellant as it was informed that United
India was the Insurance company and this
information was given by the owner of the
vehicle. If it was wrongly given, the
claimant cannot be made to suffer. The first
point of time when they came to know that
it was New India Insurance Company
Limited, an application was immediately
moved so as to implead it as a party -
respondent.

12. The owner of the Truck never
appeared before the Tribunal and as the
motorcyclist was not held to be at all
negligent, the burden shifted on the owner
of the Truck. The said decision was
rendered on 27.4.2000 by Sri N.B. Singh,
IInd Addl. District Judge, Deoria, who in
paragraph no.13 held as follows:-

"Km. Rinku was 17 years of age
at the time of accident. She had received
grievous injuries whose descriptions have
already been mentioned in the body of this
judgment earlier and it has also been stated
that she should obtain quite a handsome
amount of compensation as her leg and
hand both were fractured. The amount of
compensation has been claimed which is
excessive. According to the provisions
mentioned in Schedule-II of the M.V. Act,
she is entitled for Rs.15,000/- towards
medical expenses, Rs.5,000/- for injuries
sustained by her but for loss of her future
life she is awarded Rs.80,000/- (eighty
thousand) so that she may spend her life
easily in future. Thus, the total amount of
compensation which she can claim shall be
Rs.1,00,000/-
(one
lakh)
payable
by
Opp.party no.1. Over this amount she can
claim interest at the rate of 12% per annum
with effect from the date of presentation of
claim petition i.e. 20.12.1996 till the entire
sum is paid."

13. The applicant and also owner
gave an application immediately after she
came to know the name of New India
Insurance Company. All that the Tribunal
had to do was mulcted the liability on the
Insurance company instead it started
denovo proceeding. The respondent herein
- Satnam Singh, owner of the Truck also
appeared and gave this factual data and,
therefore, there was no point for redeciding other issues except issue no.2,
which reads as under:-

"Issue No.2: Insurance company
has alleged in this issue that the driver of
the truck had no valid driving licence at the
time of accident. The case has proceeded
ex-parte against opposite party no.1 who is
owner of the Truck. Neither owner of the
Truck nor its driver had appeared before
this court to say that the driver had valid
licence at the time of driving of the truck.
Therefore, I decide this issue in favour of
Insurance company."

There is no need to rely on
Madhya Pradesh High Court (Gwalior
Bench)
judgment
in
ICICI
Lumbard
General Insurance Company Vs. Shanti;
Babli; Chunni; Ramwati; Madho Singh and
others, 2015 LawSuit (MP) 208, even
without considering these decisions as cited
by counsel for appellant, this appeal on the
factual matrix is to be allowed.

14. The appeal is allowed. The
order
dated
27.4.2000
awarding
compensation will enure for the benefit of
the appellant - claimant. She is awarded a
sum of Rs.1 Lac with 9% rate of interest
from the date of filing of claim petition till
the amount is deposited."

21. The Motor Vehicles Act is a
beneficial piece of legislation. Had the
Tribunal in our case glanced at the x-ray
and the photographs produced it would not
have made insensitive award. The claimant
12 All. Samarjeet Singh Vs. Khursheed Khan Ors.
133
- appellant is a driver by profession.
Looking to the photographs which are
before this Court as the record was
summoned goes to show that he was his
both lower limb were plated there was rods
in do the medical Board opined that he had
50% total disability. Even if we believe that
there was such excretion rather the
functional disability on the judgment which
the Tribunal relied would have permitted
the Tribunal to at least hold that the injured
was 50% disabled.

22. The award will have to be
disturbed even on merits .

23. The Insurance Company having
not challenged the subsequent finding that
it is liable and must have deposited the
amount awarded by the Tribunal. In that
view of the matter the calculation also
requires to be recalculated as even the
earlier Tribunal did not consider adding
future loss of income . I am supported in
my view by the decision in Mushir Ahmad
) supra) and Hari Babu (supra).

24. It is submitted by Sri Vidya Kant
Shukla, Advocate that the earlier Tribunal
had considered the income of the claimant
to be Rs4,000/- and as .his age was 43
years and was in the age group of 40-45.
The multiplier of 15 was given. It is
submitted that the income should be
considered to be Rs.7,000/- per month and
the Tribunal should not have deducted
other amount looking to the certificate of
salary and that he was driver by profession
when the accident occurred. It is further
submitted that in view of the decision of
Apex Court in the case of Raj Kumar (
supra) the disability should be considered
to be 100% as he now cannot drive as a
skilled driver. Per contra, the learned
counsel for the insurance company now
contends that even if this Court feels that
the subsequent judgment is bad, the award
of the compensation granted by the First
Tribunal should be considered and that the
subsequent Tribunal has also appreciated
the matter on facts as it was hearing matter
after the decree was set aside.

25. Looking to the totality of the facts
and as they emerge the income should be
considered as Rs.5000/-- per month to
which 25% will be added under the head of
future prospect which would come to
Rs.5,000/- + Rs.1250/- which is euqal to
Rs. 6250/- per month. Even if we do not
consider that the injury has caused, 100%
disablement but we may fall back on the
certificate as given by the Medical Board
which would be 50% disablement for body
as a whole, Hence, the claimant would be
entitled to Rs.3125/-per month as loss of
income, which will be further multiplied by
15. The same is also to be multiplied by 12
and the figure would be Rs. 5,62,500/- to
which Rs.50,000/- be added under the nonpecuniary head of pain shock and suffering
and Rs.84224/- for medical expenses. The
claimant over and above would be entitled
Rs.25,000/- under the head of good diet,
attended charges and transportation. I am
supported in my view by the latest decision
of Apex Court in the case of Kajal Versus
Jagdish Chand and others, 2020 ACJ 1042
(SC) /- . The Apex Court in Chameli Wali
Vs. Municipal Corporation of Delhi,
(1986)
4
SCC
503
has
held
that
compensation should normally be granted
by the High Court exercising powers under
Section 173 from the date of filing of the
claim petition till realization. In this case
the earlier Tribunal granted the amount
from the date of the claim petition as there
was no delay caused by the claimant
herein. The finding is not recorded by the
subsequent Tribunal as to how the appellant
134 INDIAN LAW REPORTS ALLAHABAD SERIES
protected the proceedings. He appeared
before
the
Tribunal
even
after
the
application under Orde 9 Rule 13 was filed
as is clear from the order passed in the year
2018 allowing the application under Order
9 Rule 13 of the Code. Thereafter the lis
was between the owner and the insurance
company and, therefore, finding fault with
the claimant was perverse finding which is
set aside. The total amount Rs.5,62,000/- +
Rs.75,000 + Rs.84,224/- would carry
interest at the rate of 7.5%. The insurance
company to deposit the difference of the
said amount within 12 weeks from today.

26. This is claimant's appeal who has
felt
aggrieved
because
of
the
total
insensitivity shown by the Tribunal. While
allowing the application under Order 9
Rule 13 of C.P. Code. The application was
filed by the owner as during the trial he
remained absented after filing his written
statement and did not file the license of his
driver.