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Judgment
Satyabrata Sinha, J.—This appeal is directed against a judgment and award dated December 22, 1992 passed by G.C. Dey, 3rd Additional District Judge, Alipore aid Motor Accident Claim Tribunal, 24-Parganas (South), in Motor Accident Claim Case No. 111 of 1987.
The fact of the matter is not much in dispute.
The first Respondent who is a practising Advocate of this Court met with a motor accident on Taki Road within Deganga Police Station which was then within the District of 24-Parganas now North 24-Parganas on September 3, 1990. By the said accident the first Respondent sustained injuries by read-on-collison between his motor car and a private Bus owned by the Respondent No. 2. The first Respondent filed a claim application on March 2, 1981 before the learned tribunal below claiming a sum of Rs. 1,55,000.00. The said claim application was registered as M.A.C. Case No. 58 of 1981.
On May 17, 1982 the Appellant was impleaded as a party on the ground that it was the insurer of one Narendra Lal Chowdhury being alleged owner of Bus No. WMR 3000. The Appellant filed a written statement denying the alleged contract of insurance. The aforementioned Miscellaneous case was transferred to the District Judge, North 24-Parganas on January 7, 1987.
On June 28, 1990 another application was filed by the Appellant that upon enquiry it had come to learn that Narendra Lal Chowdhury was not owner of the said bus being Registration No. WMR 3000 and the said Narendra Lal Chowdhury had already expired. The first Respondent thereafter filed an application u/s 151 of the CPC before the learned Additional District Judge, 3rd Court for change of the name of the owner of the Bus as Narendra Nath Chowdhury. The said amendment application was allowed, whereafter the Appellant filed an additional written statement denying its liability.
In March 1991 the first Respondent filed another application for amendment of the claim petition wherein it was alleged that the correct registration of the vehicle was WBR 3000 and not WMR 3000 and one Subhas Nagar Multipurpose Samabai Samity Ltd. was the owner of the said Bus. The Appellant filed a written objection to the said application for amendment. However, the said application was allowed by an order dated June 17, 1991. The first Respondent by an application reduced the amount of claim.
Upon considering the materials on records the learned Claims Tribunal allowed the application of the first Respondent and directed as follows:
In the result, the claim case succeeds. C.F. paid to is correct. Hence, it is
Ordered
that the claim case be and the same is allowed on contest with a consolidated cost of Rs. 1,000/- (Rupees one thousand) only. The claimant is entitled to get Rs. 1,00,000/- (Rupees one lakh) only as compensation u/s 110A of the M.V. Act along with the fixed pendentalite interest of Rs. 10,000/- (Rupees ten thousand) only. The United India Insurance Co. Ltd. is directed to deposit the amount within one month (excluding the X-Mas holidays) from this day in this Tribunal on the basis of an A/C. payee instrument (preferably a bank draft) drawn in the name of Sri Arun Prokash Chatterjee. If the insurer fails to deposit the amount within the stipulated period, the awarded amount shall carry interest @ 12% per annum from this day till realisation over and above the fixed pendentalite interest.
Mr. Chowdhury, the learned Counsel appearing on behalf of the Appellant has principally raised two contentions in support of this appeal. The learned Counsel firstly produced copies of several notifications before us in order to show that at the relevant point of time the learned Tribunal below had no territorial jurisdiction. It was also contended that the Appellant was not the insurer in respect of the vehicle in question. In support of the first contention the learned Counsel relied upon Mafatlal Industries Ltd. and Others Vs. Union of India (UOI) and Others, As regard second contention the learned Counsel submitted that the first Respondent himself has admitted upon taking inspection of the Insurance Registers that the Insurance Number furnished by him did not find place in the said Register.
Mr. Chatterjee, the learned Counsel appearing on behalf of the first Respondent, on the other hand, submitted that the Appellant cannot be permitted to raise the question of jurisdiction for the first time in the appeal inasmuch as the Appellant did not raise the said question before the learned Tribunal below despite the fact that it had filed four written objections before it i.e. in April 1993, on June 6, 1990, on June 28, 1990 and on June 7, 1991. Reliance in this connection has been placed on Pathumma and Others Vs. Kuntalan Kutty Dead by Lrs. and Others,
As regard the second contention the learned Counsel submitted that the Appellant had filed the Registers but took back the same and never produced it before the learned Tribunal below despite the fact that it had undertaken to do so. In that view of the Mr. Chatterjee submitted that an adverse inference should be drawn against the Appellant.
So far as the first contention raised by Mr. Chowdhury is concerned we do not find any substance therein. The Appellant has not filed any application for additional evidence. The Appellant had also not taken any question raising the lack of territorial jurisdiction on the part of the learned Tribunal below before it.
It may be that in terms of the Rules framed by the State of West Bengal under the Motor Vehicles Act, the provisions of CPC have not been made applicable, but in terms of the said Rule some of the provisions of the CPC have been made applicable. The provisions contained in Section 21 of the CPC although may not be in stricto senseo applicable, there cannot be any doubt that the principles analogous thereto are applicable as served a public purpose.
In Anirudh Prasad Ambasta and Others Vs. State of Bihar and Another, of which I was a member held that the Claim Tribunals are the courts subordinate to the High Court. By reason of the provision of Section 110 and 110(F) of the Motor Vehicles Act, 1939 merely new forum had been created subject to the existing rights and liabilities. See New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, Adult,
The distinction between a Tribunal and Court is well known. As award of a Tribunal if final, it will be a Court. Reference in this connection may be made to K.P. Verma v. State of Bihar 1988 P.L.J.R. 1038, Ram Sigashan Pathak Vs. K.P. Sinha, Deputy Director, Consolidation and Others, Municipal Corporation of Delhi Vs. Kuldip Lal Bhandari and Others, and Shanti Devi and Others Vs. General Manager, Haryana Roadways, Ambala and Others,
In Sohan Singh and Others Vs. General Manager, Ordnance Factory, Khamaria, Jabalpur and Others, the Apex Court refused to allow the Petitioner to question the jurisdiction of Labour Court, for the first time in the writ application as such a question was not raised before the Tribunal below. For the foregoing reasons the first contention of Mr. Chowdhury must be rejected. However, so far as the second contention of Mr. Chowdhury is concerned the same has substance.
The first Respondent filed a copy of the Insurance Policy bearing No. 30400/24/1/00326. The said Policy Number was given on the basis of a seizure list. However, a bare perusal of the said Policy Number would show that the same was in respect of an Ambassador Car bearing Registration No. WBC 3140. It is true as has been found by the learned Tribunal below that the Appellant was also responsible for causing some delay. It appears that the Insurance Registers had been produced before the learned Tribunal below and an inspection was taken by the first Respondent. Although the said Registers were taken back but it appears that the first Respondent in his deposition stated as follows:
As per direction of this Court the register purporting to be policy register was produced for inspection and I had gone through it. In that register I did not find the policy number in respect of this vehicle. It is not a fact that the O.P. No. 2 is not the insurer of the offending vehicle at the relevant time, or that my claim against O.P. No. 2 is false and against a wrong person, or that the offending vehicle was not covered by insurance policy No. 30400/24/1/00326 and insurance certificate No. 029932 with validity date upto 27.11.80 or that my statements are wrong.
Despite the fact that the said registers were not produced, in our opinion, keeping in view the aforementioned admission on the part of the first Respondent and further in view of Rule 11 of the Motor Vehicles (Third Party Insurance) Rules, 1946 in terms whereof such registers and policies were to be destroyed within a period of 5 years. We are of the opinion that in absence of any proof having been brought on record that the offending vehicle was insured with the Appellant, the Appellant could not have been made liable therefor.
In the instant case the Tribunal below has made the Appellant only liable. Such a direction could not have been passed by the Tribunal below in view of the fact that the Appellant even if the vehicle was insured with it was merely an indemnifier. The liability to pay compensation was primarily upon the owner and the insurer could have been asked only to indemnify the owner of the vehicle. Reference in this connection may be made to Oriental Fire & General Insurance Co. Ltd. v. Bechan Singh 1982 Accident Claims Journal 211 and Hindustan General Insurance Co. Ltd. v. M. Saramma 1969 Accident Claims Journal 25.
We do not accept the submission of Mr. Chatterjee to the effect that the Appellant cannot raise this question in this appeal in view of the fact that such a question could be raised by the Appellant and had been raised before the learned Tribunal below in terms of the provisions contained in Section 96(2) of the Motor Vehicles Act, 1939 which is Parimateria with Section 149(2) of the Motor Vehicles Act, 1988.
However, in view of the admitted fact that notice had been served upon the owner both before the learned Tribunal below as also before us but despite same, nobody had appeared. We modify the award passed by the learned Tribunal below to the effect that the amount awarded in favour of the first Respondent, shall be payable by the second Respondent and not by the Appellant.
This appeal is disposed of with the aforementioned direction.
The amount deposited by the Appellant, if any, may be returned to it. So far as the amount withdrawn by the Respondent is concerned, it would be open to the Appellant to take appropriate action for recovery thereof.
Bhaskar Bhattacharya, J.
I agree.