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Judgment
T. Mathivanan, J.—Being aggrieved by the order of dismissal of the claim petition, dated 19.01.2009 and made in M.C.O.P. No. 194 of 2008, on the file of the Motor Accident Claims Tribunal (Fast Track Court No. 1), Thoothukudi, the claimant has approached this Court by way of this memorandum of Civil Miscellaneous Appeal.
The Appellant/claimant is none other than the mother of the deceased Senthurkani, who had died in the road traffic accident, which took place on 10.05.2007 at about 05.30 p.m. involving the Tempo 407 Van bearing Registration No. TN-69-E-6330 at Beach Road, Tuticorin. At the time of death, the deceased was aged about 38 years and she was an unmarried woman and was working as a coolie in the Fishing Harbour at Tuticorin.
Since the Appellant/claimant, being the only legal heir of the deceased, she had filed a claim petition in M.C.O.P. No. 194 of 2008, on the file of the Motor Accident Claims Tribunal (Fast Track Court No. 1), Thoothukudi, claiming a sum of Rs. 3,00,000/-.
The claim petition in respect of the first Respondent herein being the owner of the offending vehicle was dismissed as no steps were taken to serve notice on him. The second Respondent being the insurer had alone contested the claim. On appreciation of the evidence, both oral and documentary, the Tribunal had found that:
1) The accident was caused due to the rash and negligent driving of the driver of the first Respondent.
2) The vehicle involved in the accident was not having valid permit to ply on the road at the material time.
3) The deceased was allowed to travel in the offending vehicle as a gratuitous passenger and thereby, the first Respondent being the owner of the vehicle had violated the policy conditions.
Even though the Tribunal had given a specific finding that the accident was caused due to the rashness and negligence on the part of the first Respondent''s driver, it had proceeded to dismiss the claim petition on the ground that the second Respondent/Insurer is not liable to pay any such compensation to the Appellant/claimant.
It is obvious to note here that in the preliminary stage, the claim petition in respect of the first Respondent/owner of the vehicle was dismissed as the claimant had not chosen to take steps to serve notice on him.
On perusal of the grounds of appeal, it does not have any reference with regard to the reason for not taking steps in respect of the first Respondent/owner of the vehicle, even at the preliminary stage of the claim petition.
However, the learned Counsel appearing for the Appellant/claimant has canvassed that the finding of the Tribunal that the second Respondent/Insurance Company is not liable to pay compensation to the Appellant/claimant on the ground that the first Respondent/owner of the vehicle had violated the policy condition is not sustainable. He has also maintained that since the Tribunal had found that the accident was taken place only due to the rashness and negligence on the part of the driver of the first Respondent, it ought to have found that the Insurance Company is liable to pay compensation to the Appellant/claimant as the policy of Insurance was in existence at the material time.
Besides this, the learned Counsel for the Appellant/claimant has also adverted to that since the deceased was travelled in the vehicle involved in the accident as a load woman as evident from Exs.P1 & P5 i.e., First Information Report and charge-sheet, the Tribunal ought to have found that the second Respondent/Insurance Company is liable to pay compensation.
On a cursory perusal of the award of the Tribunal, it has been made clear that the deceased along with others was travelling as gratuitous passengers in the vehicle which is a goods carrier and therefore, the Insurance Company is not liable to pay compensation, as the owner of the vehicle had violated the policy condition. Apart from this ground, the Tribunal has also found that the vehicle was not having valid permit at the time of accident and on that ground also the owner of the vehicle had violated the policy condition and for the above said reasons, the Tribunal has concluded that the second Respondent/Insurance Company could not be fastened with the liability. Since, the claim petition in respect of the first Respondent was already dismissed for default as the Appellant/claimant had failed to take steps for service of notice, the Tribunal had ultimately proceeded to dismiss the claim petition.
With regard to the finding that the Insurance Company is not liable to pay compensation for the simple reason that the deceased was allowed to travel in the offending vehicle as a gratuitous passenger, it may be appropriate to place reliance upon the decision in National Insurance Company Limited v. Rattani and Ors. reported in 2009 (1) TN MAC 103 (SC). In this case, the deceased was travelling in a goods vehicle as a member of marriage party and under these circumstances, the Division Bench of the Apex Court headed by Honourable Mr. Justice S.B. Sinha has held that the victims of accident travelled in a truck as gratuitous passengers, therefore, insurer not liable to pay compensation to the claimants.
Coming to the instant case on hand, it is the case of the claimant that the deceased Senthurkani was working as a coolie in building work at Fishing Harbour, Tuticorin. After work, she and other workers were returning in the Tempo 407 Van, bearing Registration No. TN-69-E-6330. When the said van was proceeding in Beach road at Tuticorin, the driver who was on the steering wheel had driven the same in a hectic speed and due to this reason, the vehicle lost its control and suddenly turned turtle at 05.30 p.m. on the left side of the road. Since an iron water tanker was kept in the said van, it had fallen over the deceased Senthurkani and as a result of which, her body was cut into two pieces, which resulted her instantaneous death.
On careful securitization of the evidences both oral and documentary, it appears that the Appellant/claimant has miserably failed to establish that the deceased was travelling in the said vehicle as a load woman. Hence, it is apparent from the materials available on record that the vehicle ''viz'' Tempo 407 Van, bearing Registration No. TN-69-E-6330 being a goods carrier is not supposed to carry the passengers.
The learned Counsel appearing for the Appellant/claimant while advancing his argument has submitted that though the Insurance Company is not found liable to pay compensation to the Appellant/claimant, it might be directed to pay the compensation to the Appellant/claimant and recover it from the first Respondent/owner of the vehicle at the later stage. In support of his argument he has placed the following two decisions:
1) Marakka and Anr. v. Shahid Khan and Anr. reported in 2010 (1) TN MAC 40 (DB) (Karnataka).
2) Selvi v. K. Alagarsamy and National Insurance Company Limited, through its Divisional Manager, Madurai reported in 2010 (2) TN MAC 328 (Madurai).
In the given case on hand, the first Respondent/owner of the vehicle has, apparently been not brought on record. Of course, there is a finding given by the Tribunal stating that the accident was taken place due to the rashness and negligence on the part of the driver of the first Respondent/owner of the vehicle. The Tribunal has however come to the conclusion that the Insurance Company cannot be compelled to pay compensation to the Appellant/claimant in the absence of the owner of the vehicle. Under these circumstances, it may be appropriate that the claim petition may be remitted back to the Tribunal with a direction to allow the Appellant/claimant to take steps in respect of the first Respondent/owner of the vehicle to bring him on record and after inviting his objection if any and permitting him to adduce evidence if any on his part, the Tribunal may be directed to take fair decision in respect of the claim of the Appellant/claimant.
With regard to the remand back of the claim petition to the Tribunal, the learned Counsel for the Appellant/claimant has submitted that even though the owner is not a party in the claim petition, no remand is necessary as he has been proved to be the owner of the vehicle. In support of his argument he has placed reliance upon the decision in United India Insurance Company Limited, Branch Office, Tenkasi v. 1. Ganapathy 2. Muppidathi 3. Mariyappan 4. Mohammed Ibrahim reported in 2008 (1) TN MAC 213. This Court has also gone through the above cited decision and of opinion that it is not made applicable to the instant case on hand as the facts and circumstances narrated therein are entirely different to that of the instant case on hand.
In this regard, it may be relevant to refer the proviso to Section 107, Rule 23 and 23A to Order 41 of the Code of Civil Procedure.
Section 107 enacts as follows:
Section 107. Powers of Appellate Court.-(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
From Sub-clause (b) to Sub-section (1) of Section 107, it is thus made clear that the appellate Court is empowered to remand a case back to the Court of trial. It is also made clear that the appellate Court can exercise powers of remand under the circumstances specified in Order 41 Rule 23 and 23A. At the same time, it does not restrict the court''s power of remand in any other suitable case in the exercise of its inherent jurisdiction u/s 151 of the Code of Civil Procedure, as decided in The Steel Authority of India and others Vs. New Marine Coal Co. (Pvt.) Ltd., .
Rule 23 of Order 41 reads as follows:
Rule 23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit, and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
Rule 23A of Order 41 reads as follows:
Rule 23A. Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule23.
Insofar as the present case is concerned, the Rule 23-A is having more relevancy. Rule 23-A of Order 41 has been introduced by the CPC Amendment Act, 1976, which confers powers on the Court to remand the whole suit for re-trial as observed in REMCO Inds. Workers House Bldg. Coop. Soc. Vs. Lakshmeesha M. and Others, .
As observed in Board of Trustees, Paradip Port Trust Vs. Managing Director, Industrial Infrastructure Development Corporation (IDCO) and Another, , under Order 41 of Rule 23A, the appellate Court would remand the case if twin conditions are satisfied namely:
(i) if the lower Court has disposed of the case otherwise than on a preliminary point, and
(ii) the decree is reversed in appeal and re-trial is necessary.
On coming to the instant case on hand, the conduct of the Appellant/claimant and the finding of the Motor Accident Claims Tribunal necessitate this Court to reverse the order of the Motor Accident Claims Tribunal and remand back the claim petition for re-trial after bringing the first Respondent/owner of the vehicle on record.
It is important to note here that the Motor Vehicles Act, 1988 is a beneficial law for the legal heirs of the deceased and the injured persons who met with a vehicular accident. The object of the legislation is that the claimants or the persons who are really aggrieved must be duly compensated proportionate to their sufferings in appropriate cases and they shall not be sent out of the Court with empty hand. That is the jurisprudence of distribution of justice delivery system.
Keeping in view of this fact in my mind, this Court has thought it fit to reverse the order of the Motor Accident Claims Tribunal and remand back the claim petition to the Motor Accident Claims Tribunal with a direction to restore the same on its original file and to re-try as observed in the foregoing paragraphs.
In the result, the Order, dated 19.01.2009 and made in M.C.O.P. No. 194 of 2008, on the file of the Motor Accident Claims Tribunal (Fast Track Court No. 1), Thoothukudi, is set aside and the claim petition in M.C.O.P. No. 194 of 2008 is remanded back to the Motor Accident Claims Tribunal (Fast Track Court No. 1), Thoothukudi, to dispose the case afresh after giving opportunity to the Appellant/claimant to take steps in respect of the first Respondent/owner of the vehicle to bring him on record.
The learned Tribunal is also directed to permit the parties concerned to adduce oral or documentary evidences if any (in addition to the oral and documentary evidences already let in) and to decide the claim of the Appellant/claimant judiciously.
With this observation, the Civil Miscellaneous Appeal is allowed. No costs.