Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 3387 of 2003 Appellant :- Lallu Respondent :- National Insurance Co. Ltd.
Counsel for Appellant :- A.L.Jaiswal,Share Singh,Sharve Singh Counsel for Respondent :- Vinay Khare
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel for the parties and perused the judgment and order impugned.
2. This appeal, at the behest of the claimant, challenges the judgment and order dated 10.10.2003 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Hamirpur (hereinafter referred to as 'Tribunal') in M.A.C. No.36 of 1995 rejecting the Claim Petition preferred by the appellant herein.
3. Brief facts are that the appellant who has disputed that he was driving the truck which met with the accident and by which he got injured and the conductor died. The Tribunal held the appellant-driver to be not telling the correct fact and believed the other witnesses and came to the conclusion that it was the appellant who was driving the vehicle rashly and negligently.
4. The Tribunal dismissed the claim petition holding that driver of the said vehicle namely the appellant herein was the sole author of the accident having taken place. If this Court consider the facts and hold that the judgment of the Tribunal in issue No.1 as far as negligence is concerned and uphold the same then also the appellant would be entitled to claim what is known as amount under Section 140 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act, 1988'). Even this Court hold that the vehicle was driven by Lallu as proved in the record and the submission of the counsel that he was not a driver, cannot be accepted as in M.A.C.Case No. 46 of 1995, Lallu has been shown to be the driver. The eye-witness has also testified that it was the appellant who was driving the vehicle.
5. The claimant had preferred the claim petition. Even as per the judgment in Smt. Kaushnuma Begum And Ors vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9, the claim petition could not have been dismissed in the way it has been dismissed. The driver of the vehicle tried to save an animal is a proved fact. The appellant was not the sole author of the accident. The Tribunal ought to have at least granted amount under no fault liability which is now required to be granted by this Court with 9% rate of interest.
6. The counsel for the respondent contended that no amount can be granted and requested to reject the appeal and or remand the same to the Tribunal. The said contention is rejected in view of the decision in Bithika Mazumdar Vs. Sagar Pal (2017) 2 SCC 748 wherein it has been held that compensation claim petition which remained undecided for nine years and the record was before the Apex Court, the Apex Court decided the quantum.
7. Similarly, this court feels that as sixteen years have elapsed from filing of claim appeal and that the record is before this court, instead of directing the parties to go before the tribunal only for the assessment of compensation which could cause further delay and will also cause further loss to the injured-appellant, it would be more justifiable if this Court decide the quantum as this Court has to decide only quantum under Section 140 of the Act, 1988 which would be the final amount payable.
8. The appeal has remained pending for 16 years. The record is before this Court and, therefore, The respondent to deposit the sum of Rs.25,000/- as the claimant has suffered permanent partial disability which would fall within provision of Section 142 of the Act, 1988.
9. Hence, this appeal is allowed. The judgment and order impugned is set aside. The amount be deposited within 12 weeks from today with interest at the rate of 9% from the date of claim petition till the amount is deposited by the respondents jointly and severely. Record be sent back to Tribunal.
Order Date :- 22.8.2019/DKS