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Judgment
S.B. Shukre, J.—Both these appeals are directed against the common judgment delivered in Claim Petition No. 11 of 2004 and Claim Petition No. 12 of 2004 on 18th August, 2010 by the Motor Accident Claims Tribunal, Nagpur. These petitions arise out of the same accident in which precious lives of two persons were lost. On 15.11.2003, Geeta and her daughter Saili, the wife and daughter of respondent No. 1, were proceeding on a two-wheeler called Scooty. When they reached a spot near Narendra Nagar Railway Bridge at about 2.00 p.m., one truck bearing registration No. MP-09-KB-5843 gave a dash to the Scooty, as a result of which, both the rider and pillion rider sustained injuries and died on the spot. Offence for rash and negligent driving of the truck came to be registered against the driver of the said truck with Police Station Ajni. The truck was owned by respondent No. 3-in First Appeal No. 1104/2013 and respondent No. 2 in First Appeal No. 1105/2013, (hereinafter called M/s. East-West Carriers) and insured with the appellant at the time of accident. As the accident occurred due to rash and negligent driving of the said truck, the respondent No. 1 (in First Appeal No. 1105/2013 and respondent Nos. 1 and 2 (in First Appeal No. 1104/2013) filed two separate petitions, bearing Claim Petition No. 11/2004 and Claim Petition No. 12/2004 claiming compensation for the loss they had suffered on account of death of Saili and Geeta respectively from the appellant and M/s. East-West Carriers. Respondent No. 2 in First Appeal No. 1104 of 2013 is the minor son of respondent No. 1 with deceased Geeta. In Claim Petition No. 11/2004, compensation of Rs. 3,00,000/- was claimed and in Claim Petition No. 12 of 2004 compensation of Rs. 20,00,000/- was claimed. Both these petitions were filed u/s 166 of the Motor Vehicles Act, 1988.
Both these petitions proceeded ex parte against the M/s. East-West Carriers, while the appellant contested these petitions by filing its written statement. The appellant admitted the ownership and insurance policy in respect of the truck involved in the accident, but it denied that the accident occurred due to rash and negligent driving of the driver of the truck. It denied its liability to pay any compensation to the respondent Nos. 1 and 2 for the loss they suffered in the accident.
After framing several issues and considering the evidence available on record the learned Member allowed both these claim petitions by common judgment and award passed on 18th August, 2010. In Claim Petition No. 11 of 2004 compensation of Rs. 1,50,000/- was granted while in Claim Petition No. 12 of 2004 compensation of Rs. 15,11,928/- was granted and in both these petitions liability to pay these amounts was fastened jointly and severally upon the appellant and M/s. East-West Carriers.
Not satisfied with the said judgment and award, the appellant-Insurance Company has preferred these present appeals.
I have heard Mr. Gautam Chatterjee, learned counsel for the appellant and Mr. Asghar Hussain, learned counsel for the respondent Nos. 1 and 2. M/s. East-West Carriers, the owner of the truck is absent although it has been duly served with notice.
Having considered the rival submissions, the appeal deserves to be admitted and it stands admitted. Now, following points arise for my determination:
1) Whether different findings on facts as regards ownership of truck involved in the accident recorded by the Motor Accident Claims Tribunal, Nagpur has caused miscarriage of justice to the appellant ?
2) Whether this is a fit case for remanding the matter to the Tribunal for a decision afresh in accordance with law ?
This Court, by an order passed on 13th November, 2013 had already noticed the parties that the appeal would be finally heard two weeks after passing of the said order. Even then, the appeal has been finally heard today with the consent of parties present before the Court.
Mr. Gautam Chatterjee, learned counsel for the appellant has invited my attention to the observations of the learned Member in the impugned judgment and award appearing in paragraphs 3, 11 and 12 and submitted that from these observations, it can be seen that the Tribunal has given a specific finding that at the time of accident, offending truck was driven by the owner of the truck and that owner of the truck was not M/s. East-West Carriers, but one Shivcharan Jaiswal, who was driving the truck at the relevant time. He submits that the Insurance Company is liable to pay compensation only through the owner of the vehicle involved in the accident and if the owner of the vehicle has been found by the Tribunal to be some different person other than the one admitted by the Insurance Company, a serious doubt about the liability of the Insurance Company to pay the compensation would arise and, therefore, this matter would have to be remanded to the Tribunal for trying it once again and deciding this issue afresh in accordance with law. According to him, different findings recorded by the Tribunal as regards ownership of the truck involved in the accident has caused prejudice to the rights of the appellant and resultantly it has led to miscarriage of justice.
Mr. Asghar Hussain, learned counsel for the respondent Nos. 1 and 2 submits that so far as observations of the learned Member appearing in paragraphs 3, 11 and 12 are concerned, these observations are not in the nature of findings and, therefore, there is no need to consider them for examining the question as to whether or not there is any miscarriage of justice caused to the appellant. He further submits that in paragraph 12 of the impugned judgment and award, although it is stated that one Shivcharan Jaiswal, the owner of the truck, was driving the truck at the time of accident, such mentioning of the fact is out of a mistake committed by the Tribunal and this can be ascertained if the entire sentence is taken into consideration. He further submits that the fact that the offending truck was owned by M/s. East-West Carriers is not in dispute in this case and it is also not in dispute that Shivcharan Jaiswal was the driver of the offending truck at the time of accident. Therefore, he submits that there is no prejudice caused to the rights of the appellant and as such this is not a fit case which needs to be remanded to the Tribunal for a decision afresh in the matter.
Upon going through the observations of the Tribunal appearing in paragraphs 3, 11 and 12 and also the oral and documentary evidence brought on record, I find that the learned counsel for the respondent Nos. 1 and 2 is right when he submits that the error occurred in recording a finding of fact as regards ownership of the truck involved in the accident is the outcome of a clerical mistake and, therefore, cannot be understood to be leading to causing of miscarriage of justice in this case to the appellant.
About the observations as regards the ownership of the truck appearing in paragraphs 3 and 11, one must say that these are only the narration of facts by the Tribunal and the Tribunal till these paragraphs has not recorded any finding of fact as regards ownership of the offending vehicle. Therefore, as rightly submitted by the learned counsel for the respondent Nos. 1 and 2 that there is no need to take cognizance of these observations in any manner. However, there is an observation appearing in paragraph 12 and it appears to be in the nature of finding of fact. Therefore, as rightly submitted by the learned counsel for the appellant, impact of this finding of fact on the overall defence of the appellant and rights available to it under the law, would have to be examined.
It is an admitted fact that the owner of the truck involved in this accident is M/s. East-West Carriers. The documentary evidence produced on record by the respondent Nos. 1 and 2 also shows that M/s. East-West Carriers was the owner of the truck at the time of accident. However, the learned Member has recorded a finding that one Shivcharan Jaiswal, the owner of the truck, was driving it at the time of accident. It is not understood as to on what basis this finding has been recorded by the learned Member. In fact, for coming to this conclusion, as seen from the reasons stated in paragraph 12, the learned Member has relied not only upon the oral evidence of respondent No. 1, but also on the documentary evidence, especially AA Form vide Exhibit-25, which in clear terms, discloses that Shivcharan Jaiswal was the driver of the truck and M/s. East-West Carriers was the owner of the truck at the time of accident. Therefore, the finding that Shivcharan Jaiswal was the owner, recorded without any evidence available on record to support it, has to be considered as erroneous finding of fact and it must go. In fact, there is a room for saying that this finding of fact might have been the outcome of the some clerical mistake committed by the learned Member as the sentence in which this finding of fact has appeared, also contains another finding of fact to the effect that the M/s. East-West Carriers is the owner and the appellant is the insurer of the offending truck. The learned Member, may have wanted to say that Shivcharan Jaiswal was the driver of the truck, but while translating what was on her mind into words, the learned Member said that Shivcharan Jaiswal was the owner of the offending truck. But, in the same sentence learned Member has also stated that the M/s. East-West Carriers is the owner of the offending truck. If the Tribunal wanted to record a finding that Shivcharan Jaiswal was the owner of the truck, it would not have in the same sentence held that the M/s. East-West Carriers 3 is the owner of the truck. Therefore, I find substance in the argument of learned counsel for the respondent Nos. 1 and 2 that the said finding of fact is the result of a clerical mistake.
Learned counsel for the appellant has submitted that aforestated erroneous finding of fact has caused prejudice to the rights of the appellant and also resulted in miscarriage of justice. However, once the said finding of fact has been found to be the outcome of a clerical error not supported by any evidence available on record, I do not think that it would result in causing of any prejudice to the rights of the appellant. Clerical errors normally do not prejudicially affect the rights of parties unless they have a tendency to create doubts or confusion over rights and obligations of rival parties. In the instant case, no such confusion has occurred in the mind of the appellant as the appellant-insurance company is clear about ownership of the truck. This can be seen from it''s pleadings and evidence available on record. The appellant has not disputed at all the contents of AA Form vide Exhibit-25. Not a single suggestion of denial of the contents of AA Form has been put to respondent No. 1, who examined himself as witness No. 1, vide Exhibit-22, in his cross-examination taken on behalf of appellant. For recording a finding as regards ownership of the truck, the Tribunal has placed reliance only upon this documentary evidence which is AA Form and when it''s contents have not been denied by the appellant, an erroneous finding of fact and that too recorded as a result of a clerical mistake, cannot be held to cause miscarriage of justice or result in causing of prejudice to the rights of the appellant. Therefore, I find no substance in the argument advanced on behalf of the appellant in this behalf.
In the circumstances, I find that the Motor Accident Claims Tribunal, Nagpur has recorded an erroneous finding of fact that one Shivcharan Jaiswal was the owner of the offending truck and, therefore, this finding needs to be quashed and set aside and accordingly I do so. However, the other finding as recorded by the learned Member in respect of ownership of the offending truck to be with the M/s. East-West Carriers is confirmed as much as there is ample evidence available on record to establish this fact. I, therefore, further find that this is not a fit case for remanding the matter to the Tribunal for trial and decision afresh in the case. Both the points are answered accordingly.
Before parting with the judgment, a feel it necessary to direct some modifications in the operative part of the impugned judgment and award rendered in Claim Petition No. 12 of 2004. Now, it is directed that 75% of the amount of compensation payable by the appellant and M/s. East-West Carriers jointly and severally to respondent Nos. 1 and 2, shall be invested in a term deposit account with any nationalized bank for such period as would be necessary for respondent No. 2 to attain majority. This amount shall be invested in his name through his next friend i.e. respondent No. 1 and upon attaining majority the respondent No. 2 shall be entitled to claim this amount together with interest that would be accrued thereon. However, in case, some amount is required for meeting expenses on account of legal necessities of respondent No. 2 by respondent No. 1, the respondent No. 1 shall be at liberty to apply for withdrawal of part amount thereof before the District Judge, Nagpur on submission of necessary proof. This direction is considered necessary in view of the fact that the respondent No. 1 has already re-married and has an independent source of income, whereas, respondent No. 2 being a child has no source of income and needs some security to fall back upon in case of need. Remaining 25% of the amount shall be released and paid to respondent No. 1 by crossed cheque. The impugned judgment and award in Claim Petition No. 12 of 2004 stands modified in terms of the directions issued above. Rest of the impugned judgment and award in Claim Petition No. 12 of 2004 and entire judgment and award in Claim Petition No. 11 of 2004 are confirmed. Subject to the above directions this appeal is dismissed with costs.