Court No. - 7
Case :- FIRST APPEAL FROM ORDER No. - 3930 of 2018 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Pushpa Devi And 3 Ors Counsel for Appellant :- Rakesh Bahadur Counsel for Respondent :- Parvesh Kumar Pandey
Hon'ble Saumitra Dayal Singh,J.
1. The present appeal has been filed by the insurer against the award of the Motor Accident Claims Tribunal Allahabad dated 26.05.2018, passed in Claim Petition No. 655 of 2011.
2. It is a death case.
3. Short objection raised on behalf of learned counsel for the appellant/insurer is that upon enforcement of the amended Rule 204 of the Uttar Pradesh Motor Vehicles Rules, 1998 by notification no. 777/XIII-4-2-2011-4(3)/2010, published in the U.P. Gazette of 26.09.2011 by virtue of Special Rule 7 of Rule 204 of the aforesaid Rules, the driver of motor vehicle involved in the accident is a necessary party for claim of compensation filed under Section 166 of the Motor Vehicles Act, 1988. Inasmuch as, admittedly, the driver of the motor vehicle was not impleaded as a party/respondent in the claim proceedings, the impugned award suffers from fatal infirmity and the same cannot be allowed to stand.
4. For ready reference, the provisions of Rule 204 (7) introduced by U.P. notification no. 777/XIII-4-2-2011-4(3)/2010, published in the U.P. Gazette of 26.09.2011 are noted below :-
"(7) The driver of the vehicle, involved in the accident, shall be the necessary party in the application of compensation filed under Section 166 of the Act."
5. Then relying on the decision of the Division Bench passed in First Appeal From Order No. 2190 of 2010 (ICICI Lombard General Insurance Co. Ltd. vs. Smt. Reena Tyagi And Others) on 27.03.2017, it has been submitted that the issue is no longer res-integra, inasmuch as the Division Bench has clearly held that another rule being Rule 220-A that had been amended by same U.P. amendment has been held to be applicable to all pending proceedings.
6. Learned counsel for the Caveator/claimant submits that in the instant case, the accident had occurred on 28.02.2011, while claim petition has been filed on 08.08.2011. He, therefore, submits that rights of the parties were crystallized and to be governed by the law as it stood on the date of filing of the claim petition. Consequently, amendment by U.P. notification dated 26.09.2011 would not apply to the present case.
7. Having considered the arguments so advanced by learned counsel for the parties and with their consent the present appeal is being decided at this stage itself without calling for the lower court record, inasmuch as the limited aspect is being examined to the extent of applicability of the U.P. Amendment Act made by notification no. 777/XIII-4-2-2011-4(3)/2010, published in the U.P. Gazette of 26.09.2011 in the admitted facts noted above.
8. It cannot be disputed that the U.P. amendment insofar as, it has substituted the old Rule 204 (7) to the U.P. Motor Vehicles Rules, 1998 is an amendment seeking to amend the procedural law. Following the rule of interpretation laid down in Collector Vs K. Govindraj (2016) 4 SCC 763 the amended Rule 204 (7) is found be retrospective in operation. Therefore, in the first place it would apply to all pending proceedings as well. Then, a plain reading of the amended rule does not indicate it in any way seeks to exclude from its applicability claim petitions that were pending on the date of introduction of the amendment. There is no clause in the Rule that may warrant such an interpretation.
9. Also, in view of the reasoning given by the Division Bench in the case of ICICI Lombard General Insurance Co. Ltd. vs. Smt. Reena Tyagi And Others (supra), it is seen that in that case even substantive right of compensation that had been affected by the same amendment had been held applicable to all the pending proceedings. In such facts, there does not appear any rationale to warrant an interpretation to restrict applicability of the amended Rule 204 (7) to those cases that may be instituted subsequent to the publication of the amending Rules. Consequently, the present appeal deserves to be allowed. It is accordingly allowed and the impugned award is set aside on the following terms :-
(1) Insofar as the proceedings are reasonably old, it is expected that the claimant may seek to implead the driver and may file an application to implead the drivers of the two vehicles involved in the motor accident within a period of two weeks from today.
(2) Upon such application being filed, the Tribunal shall ensure that the proceedings are decided as expeditiously as possible, without allowing for any undue and long adjournment to either of the parties.
10. It is further made clear, all issues may be re-adjudicated, do-novo.
11. Rs. 25,000/- deposited by the appellant may be returned within next two weeks.
Order Date :- 29.10.2018 sailesh