Neelamma vs Nasima and Others

Budihal R.B., J.

Since these two matters are pertaining to the same judgment and award passed by the Presiding Officer of the tribunal and since the common questions of law and facts are involved in both the matters, they have been taken together, to dispose of them by the common judgment.

MFA No. 31540/2010 is the appeal preferred by the owner of the vehicle challenging the judgment and award passed by the tribunal, fastening liability on the part of the owner of the vehicle. The owner of the vehicle has also challenged the legality and correctness of the judgment and award passed by the tribunal on the grounds as mentioned in the appeal memorandum.

MFA Crob. No. 1058/2010 is preferred by the claimants, seeking enhancement of compensation amount being aggrieved by the quantum of compensation awarded by the tribunal. The claimants have also challenged the legality and correctness of the judgment and award passed by the tribunal on the grounds as mentioned in the memorandum of the cross objection.

Heard the argument of learned counsel appearing for appellant/owner of the vehicle in MFA No. 31540/2010 and also learned counsel for respondent - Insurance Company so also learned counsel appearing for the cross objectors in MFA Crob. No. 1058/2010.

Learned counsel on behalf of the owner of the vehicle made the submission that the judgment and award passed by the tribunal is not in accordance with the material placed on record and he made the submission that the Presiding Officer of the tribunal has relied upon the judgment passed in six other connected cases, holding that in the said connected matters it was held that the said vehicle was engaged for hire. It is the contention that in the connected matters award amount was less than Rs. 10,000/- on account of which the claimants could not carry the judgment and award therein in appeal and the judgment rendered in those connected matters become final. It is his submission that when this claim petition was filed before the Presiding Officer, he ought to have independently appreciated the material placed on record in this matter. But this matter also disposed of by only relying upon the judgments, which have been rendered in the connected matters and it is not in accordance with law. Learned counsel also made the submission that fastening liability on the part of the owner is also not in accordance with law. The tribunal has not considered the oral and documentary evidence placed on record. It is his submission that the registration particulars were not at all produced by the Insurance Company in this case and in the absence of such material produced in the case, holding owner of the vehicle liable to pay the compensation amount and absolving the Insurance Company from liability was also not correct. He made the submission that even the petition filed by the claimants before the tribunal was not at all maintainable on the ground that the claim petition was presented before the tribunal under two provisions i.e., Section 166 and Section 163(A) of Motor Vehicles Act. In this connection, it is his submission that the claimants cannot maintain the petition under two provisions and it is the parties who have to exercise the option as to whether they wanted to proceed under Section 166 of MV Act or 163(A) of MV Act. He made the submission that looking to the judgment rendered by the tribunal in this case, even though the parties have not exercised their option. The tribunal suo-moto has treated the petition under Section 166 of MV Act and rendered the judgment, which was also not in accordance with law. In this connection learned counsel has relied upon the judgment of the Division Bench of this Court rendered in MFA No. 7163/2002 dated 16.06.2006 and drawn the attention of this Court to the relevant paragraph Nos. 6 and 7, which reads as under:

"6. Having heard the submissions made by both the parties, we are convinced that the tribunal committed serious error in law by suo moto treating the petition as if it was on under Section 163A of the Act when no such option was exercised by the claimants themselves. Secondly the claimants could not have pursued the remedy simultaneously under both the Sections and in this connection, we would like to refer to the aforesaid decision of the Apex Court. The Apex Court observed at para- 57 thus:

"57. We, therefore, are of the opinion that remedy for payment of compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the Act, but not under both."

Further at para -59 of the decision, the Apex Court has also answered the following question in the negative.

"59...........Furthermore, if in a case the tribunal upon considering the relevant materials comes to the conclusion that no case has been made out for awarding the compensation under Section 166 of the Act, would it be at liberty to award compensation in terms of Section 163-A thereof?"

In view of the above said position in law as laid down by the Apex Court, the tribunal could not have ignored the mandatory provisions of law merely because, the Act is a beneficial piece of legislation. It is the duty of the tribunal to follow the procedure as prescribed under law and the law laid down by the Apex Court. The tribunal should have kept in view that the claimants are entitled for compensation as per law, but not in violation of the mandatory provisions of the law."

Learned counsel for the owner of the vehicle also made the submission that the compensation awarded is on the higher side. No material has been placed by the parties to show the income of the deceased. It is his submission that the deceased was working as Chairman in MSIL and getting honorary amount. Hence it is his submission that it cannot be treated as salary and the tribunal has wrongly considered it as the monthly income and on that basis, awarded the compensation amount and it was also not permissible. Hence, he submitted that the matter requires reconsideration by this Court in view of these infirmities in the judgment and award passed by the tribunal.

Per contra learned counsel appearing for the respondent - Insurance Company during the course of her argument made the submission that it is the case of these claimants also that they were proceeding in the said vehicle along with other persons who have filed the other claim petitions and their cases have been already disposed of and wherein it is held by the tribunal that the vehicle was hired. In this connection learned counsel for respondent - Insurance Company has drawn the attention of this Court to the documents produced at Ex. R1-Insurance Policy, judgment of the tribunal as per Ex. R2, deposition of P.W. 5 as per Ex. R4 and the evidence of R.W. 1. Hence, it is the contention of learned counsel that as there was violation of terms and conditions of the Insurance Policy, the tribunal has correctly appreciated the materials and absolved the Insurance Company from its liability to pay the compensation amount and the entire liability was fastened on the owner of the vehicle. Hence, learned counsel submitted that no illegality has been committed by the tribunal and there is no merit in the appeal preferred by the owner of the vehicle and the same is to be rejected, so far as the fastening liability is concerned. In support of her contention regarding fastening liability, she relied upon the decision reported in III (2009) SLT 158. On the point of quantum of compensation and maintainability of the claim petition, the learned counsel for the respondent - Insurance Company has adopted the submission made by the learned counsel for the appellant/owner of the vehicle. Hence, she submitted to dismiss the cross objection filed by the claimants seeking enhancement of compensation amount and also the appeal preferred by the owner of the vehicle.

Learned counsel for cross objectors/claimants during the course of his argument made the submission that the income assessed by the tribunal is correct. So far as the deduction towards personal expenses is concerned, it ought to be 1/4th instead of 1/3rd. It is also his submission that regarding the maintainability of the claim petition, he submitted that there was no error committed by the tribunal in treating the claim petition under Section 166 of MV Act. He made the submission that even if the tribunal could have treated the petition under Section 163(A) of MV Act, the petition could not have been maintained. Hence, learned counsel made the submission that regarding the maintainability of petition, no such contention was raised before the tribunal. Therefore, at this stage, the owner and insurer are not permitted to take such contention. Hence, he submitted that the compensation awarded under different heads was on the lower side and the same may be enhanced reasonably and the cross objection be allowed.

I have perused the grounds urged in the appeal memorandum filed by the owner of the vehicle and also grounds urged by the cross objectors/claimants in the cross objection memorandum, the judgment and award passed by the tribunal, oral and documentary evidence adduced in the case by the parties about which, learned counsels draw the attention of this Court during the course of their argument. Regarding the first and foremost contention is about the maintainability of the petition and it is the contention of owner of the vehicle that the petition was presented by the parties under two provisions i.e., under Sections 166 and 163(A) of MV Act and they have not exercised their option as to under which provision they wanted to proceed in the matter. But, it is the Presiding Officer of the tribunal presumed that it was under Section 166 of the MV Act and proceeded further in the matter. Though learned counsel for the claimants took the contention that the same point was not raised before the tribunal and now the owner of the vehicle is not permitted to raise such contention before this Court. But according to the nature of submission made by the learned counsel for the owner of the vehicle, it is the law point that he has canvassed before this Court and it is not only factual aspect therefore, it can be taken into consideration even in the appeal also. I have perused the judgment relied upon by the learned counsel for the owner of the vehicle and also relevant paragraphs Nos. 6 and 7 of the said judgment. In view of the said judgment passed by the Division Bench of this Court rendered in MFA No. 7163/2002 and as in the present appeal also the petition was filed under two provisions and the judgment of the Division Bench of this Court is applicable to the case on hand. This aspect will go root of the matter before considering any other contentions of the parties by the Presiding Officer of the tribunal. Therefore, I am of the opinion that the matter requires to be remanded to the tribunal for fresh disposal for giving option to the parties to exercise their option as to whether they wanted to treat the petition under Section 166 of MV Act or under Section 163(A) of MV Act.

Hence, the judgment and award passed by the tribunal is hereby set aside. The matter is remitted back to the concerned tribunal for fresh disposal in accordance with law. The tribunal has to give an opportunity to both the parties to lead their additional evidence if any. Since the accident is of the year 1998, the tribunal has to take up this matter on priority basis and to dispose of the same within four months from the date of receipt of copy of this judgment.

The Registry is hereby directed to send the original records along with copy of this judgment to the concerned tribunal immediately.

The parties have to appear before the concerned tribunal on 30.04.2015, without waiting further notice or any intimation from the concerned tribunal.

The amount deposited by the owner of the vehicle be transferred to the concerned tribunal.