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Judgment
U.C. Maheshwari, J.—This order shall decide aforesaid both Misc. Appeals arising out of the same impugned award filed by the registered owner of the offending vehicle for saddling the liability of the sum of the impugned award and by the respondent No. 1 claimant for enhancement of the sum awarded by the tribunal respectively. The aforesaid both the appeals have been filed by the respective appellants stated above being aggrieved by the award dated 14.7.06 passed by the MACT, Balaghat in MACC No. 14/06 whereby the claim of Abdul Manan Khan who is respondent No. 1 in the MA No. 3627/06 while appellant in M.A. No. 4032/06 with respect of the injuries sustained in vehicular accident, by exonerating the respondent No. 2/insurer of both the appeals, from the liability to pay the sum of the impugned award, has been awarded against the Gurdeep Singh (the appellant of M.A. No. 3627/06 while respondent No. 1 in MA No. 4032/06), for the sum of Rs. 1,00,000/- along with interest @ 6% P.A. from the date of filing the claim petition i.e. 13.1.06. In addition to it, cost of Rs. 750/- has also been awarded. Keeping in view the position of the parties of both the appeals as stated in the appeal memo, for the sake of convenience, instead the words appellant, respondent No. 1 and respondent No. 2, the words, claimant, registered owner and insurer respectively are being used for them hereinafter.
The facts giving rise to this appeal in short are that, the claimant, being driver under the employment of aforesaid registered owner of the bus, was deputed on a bus bearing registration No. MP-22-B/6336. While driving the bus cautiously by him on 13.12.04 between Mandai to Balaghat, the same met with an accident near river Tannor because of mechanical fault in the vehicle due to breaking of Kamani Patta, resultantly, the claimant sustained injuries in his both legs along with some other part of his person. He became unconscious on the spot. From the place of incident, he was taken to the hospital from where after providing preliminary treatment, he was referred to district hospital Balaghat for further treatment where he remain admitted as indoor patient upto 14.12.04. Thereafter he was referred to medical college Nagpur for further treatment where he remain admitted for some time as indoor patient. During that period, by carrying-out the surgery, some rod and plates were inserted in his leg. At the time of accident, he was aged 50 years and was getting Rs. 3000/- P.M. salary, besides Rs. 50/- per day allowance and, in such premises, including the expenses of treatment, the claim of Rs. 11,25,000/- was filed. It is also stated in the claim petition that on the date of the alleged accident, the bus was registered in the name of aforesaid registered owner, while the same was insured with the above mentioned insurance company. The claimant was possessing the requisite license to drive the bus.
In reply of the registered owner, by denying all the averments of the claim petition, it is stated that on the date of the accident such bus was plied with all requisite papers and the same was duly insured with the aforesaid insurance company. The claim has been filed for excessive sum while the claimant sustained only simple injuries and after treatment he has been cured and still he is working as driver. It is further stated that the bus being duly insured with the insurance company, the liability of any claim could not be saddled against the registered owner, the same be saddled against the insurer and prayed for dismissal of the claim case.
In reply of the Insurance company, by denying all the averments of the claim petition, in special pleading, it is stated that such bus was plied by the registered owner through claimant, illegally. Such claimant was not having any effective driving license and also without having the requisite papers of the bus to ply the same. In such premises, the bus was plied in violation of the terms and conditions of the insurance policy and prayer for dismissal of the claim is made.
In view of pleadings of the parties, after framing the issues, the evidence was recorded. On appreciation of the same, it was found that such bus was plied by the registered owner through claimant, without having any fitness certificate of the bus and, in such premises, by exonerating the insurance company, the claim of the claimant was awarded against the registered owner of the bus for the sum mentioned above, on which, such registered owner of the bus has come to this court with a prayer to saddle the liability of the claim against the insurer company as the same was duly insured with it covering the risk of the driver also while the claimant has come to this court with a prayer for enhancement of the sum awarded by the tribunal so also for saddling the liability of the awarded sum on the insurer.
In pendency of this appeal, on behalf of the registered owner, IA No. 777/09 an application under order 41 rule 27 read with section 151 of the CPC for taking annexed fitness certificate of the offending bus for the period in which the accident was happened, was filed and as per interlocutory order dated 16.2.2009, such application is to be considered while considering this appeal on merits.
Shri Saket Agarwal, counsel of the registered owner of the bus, after taking me through the record of the tribunal along with the impugned award, argued that the insurance company has been exonerated by the tribunal only on the ground that on the date of the incident, the alleged owner was not having the fitness certificate of the bus to ply the same on the road which approach is not correct because on the date of the accident, besides the registration of the bus, he was also having the permit, fitness certificate and the requisites receipts of the road taxes but due to oversight and some mistake on the part of the registered owner of the bus, the fitness certificate could not be produced before the trial court and in such premises, the insurer has been exonerated. Subsequent to filing the appeal, the fitness certificate was traced and the same was placed before the court along with the aforesaid I.A. and such certificate being issued by the Public Authority i.e. RTO, is admissible under the law and, on taking into consideration there is sufficient circumstance in the matter to saddle the liability of the impugned claim jointly and severally against the insurance company along with the registered owner of the bus. In continuation he said that the other findings of the tribunal have not been challenged on behalf of the insurer. So, in such premises, after taking the aforesaid document on record, in view of the other findings of the tribunal, the findings of the impugned award exonerating the insurer from the liability to pay the sum of the impugned claim, be set aside and such liability be saddled against the insurer also and prayed to allow the aforesaid IA and appeal accordingly.
On the other hand, responding the aforesaid arguments, Smt. Azgari Khan, counsel of the insurer, by justifying the impugned award said that the insurance company has been rightly exonerated by the tribunal and such approach does not require any interference at this stage. She further stated that the fitness certificate was very well available with the appellant when the claim case was pending before the tribunal and if it was not filed before the tribunal at appropriate stage then at this stage, by allowing the aforesaid IA, the registered owner, cannot be permitted to take the advantage of the aforesaid fitness certificate of the bus. She also argued that in the lack of any finding of the tribunal regarding negligence of the claimant in driving the bus, the liability of the claim could not be saddled against the insurer and prayed for dismissal of this appeal. She further said that in any case, this is not a fit case for enhancement of the sum awarded by the tribunal looking to the nature of the injuries sustained by the claimant and line of treatment whatsoever sum has been awarded by the tribunal is just and proper. It does not require any further enhancement and also prayed for dismissal of both the appeals.
Counsel of the claimant argued that looking to the nature of the injuries sustained by the claimant in the alleged accident and its line of treatment, the sum awarded by the tribunal is very meager and lesser side and prayed to enhance the sum as prayed in the claim petition. He further said that in view of the fitness certificate filed by the registered owner, there is sufficient circumstance in the matter to saddle the joint and several liability of the impugned claim against the registered owner of the bus as well as the insurance company and prayed to allow his appeal accordingly.
Keeping in view the arguments advanced, I have carefully gone through the record of the tribunal along with the impugned award. In the available circumstance before proceeding further, in order to consider the merits of the matter or examining the validity of the impugned award in toto, I deem fit to consider first the aforesaid IA No. 777/09 filed for taking the alleged fitness certificate on record.
True it is that the fitness certificate was not filed by the registered owner before the tribunal till passing the impugned award and only in the lack of such certificate, the insurer (Insurance company) has been exonerated from the liability to pay the awarded sum and the entire liability to pay such sum was saddled against the registered owner of the bus. It is apparent that the fitness certificate was issued by the District Transport Authority of Balaghat on 22.9.04 for the period 23.9.04 to 22.9.05 and it is undisputed fact that the alleged vehicle met with an accident on 13.12.04 which comes between the aforesaid period. Such certificate is also having official seal of the District Transport Authority and, in such premises, it appears to be a public document defined u/s 76 of the Evidence Act. So, in such premises, I am of the considered view that even in the absence of any application under order 41 rule 27 of the CPC, mere on filing the document, the same is admissible and court is bound to consider the same for all purposes to decide this appeal. But in order to avoid the technical difficulties, such document being relevant with the matter, I deem fit to take the same on record and, therefore, by allowing the aforesaid application such document is taken on record.
After taking the aforesaid fitness certificate on record, I am of the considered view that in the light of such document, the insurer (insurance company) should be extended an opportunity to adduce the evidence in rebuttal of the same. Although, under the existing procedure such evidence could be recorded by the appellate authority to decide the matter on merits but as per practice, in normal course and in routine manner, no such evidence is recorded by this court. So, in such premises to extend such opportunity, this court has to send the matter to the Tribunal for recording the evidence and for its findings. I am of the view that after taking such document in consideration the case is decided here then the insurer (insurance company) may be deprived from the right of appeal provided u/s 173 of the Motor Vehicle Act on such question. So, in such circumstance, after taking the aforesaid document on record, I deem fit to remand the matter after setting aside the impugned award, to the tribunal to decide afresh taking into consideration the aforesaid fitness certificate also. So, by setting aside the impugned award, the case is remitted back to the tribunal to decide it afresh with the following directions:-
(a) The tribunal shall decide the matter afresh after extending an opportunity to adduce the additional evidence to the parties in the light of the aforesaid fitness certificate dated 22.9.04.
(b) The tribunal while deciding the matter afresh shall be at liberty to decide the sum of the claim afresh without being influenced from any observation or findings given by the tribunal in the impugned award.
(c) The tribunal shall be at liberty to saddle the liability of the claim separately or jointly and severally against the registered owner of the bus as well as the insurer (insurance company).
(d) The tribunal shall be at liberty to pass appropriate order with respect of the sum deposited by the registered owner in compliance of the impugned award but such order shall be passed while passing the final award in the matter and not prior to that.
(e) Keeping in view that the impugned claim was initially filed in the tribunal in the year 2006, the tribunal is directed to take an endeavor to expedite the matter and decide the same on some early date probably within six months from the date of receiving the record along with the copy of this order.
(f) The parties are directed to appear before the tribunal firstly on 10.5.2013 and also on such other dates as are given to them by the tribunal to comply the aforesaid direction.
With aforesaid directions, without expressing any opinion on merits of the matter, both the appeals are hereby disposed-off. There shall be no order as to the cost.