(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Appellant
- New India Assurance Company, has challenged the judgment and award dated 28.9.2004 passed by the Motor Accident Claims Tribunal, Mehsana in MACP No.242/99. By the said award, the Claims Tribunal awarded a sum of Rs.22,38,860 (inclusive of interest and costs) to the claimants to be paid by the original opponents jointly and severally which include the present appellant Insurance Company also.
2. On 8.1.99 in the morning hours when one Jayantibhai Patel was traveling on his scooter, he met with an accident when a truck insured with the present appellant Insurance Company dashed against the scooter. He was 38 years of age on the date of the accident. He died due to the injuries received. He was employed as Assistant Engineer in the State Government. His dependents, namely, widow and three children filed claim petition seeking compensation of Rs.30 lacs from the driver, owner and insurer of the vehicle involved in the accident.
3. Before the Claims Tribunal, the claimants examined Majulaben, widow of the deceased. It appears that thereafter the claimants passed a pursis Ex.27 on 24.9.04 and declared before the Claims Tribunal that there is no dispute about the involvement of the vehicles and the fact that the deceased died during vehicular accident, and that therefore, the claimants be granted a reduced sum of Rs.22,38,860/- and the claimants have no objection if such reduced compensation is awarded. Significantly, though the pursis also recorded that the Insurance company also has no objection to this formula, it was signed only by Manjulaben, claimant No.1 and the advocate of the claimants. Such pursis was not signed by any of the opponents including the Insurance Company.
4. The Claims Tribunal proceeded on the basis of pursis Ex.27 and awarded total compensation of Rs.22,38,860/- inclusive of interest and costs. It is this award which the Insurance Company has challenged in this appeal.
5. Having heard the learned counsel for the parties and having perused the documents on record, we are of the opinion that the Claims Tribunal committed grave error in allowing the claim without full adjudication of the claim petition. The trial itself was not completed. The opponents, including the Insurance Company had not filed pursis closing their right to lead evidence. Pursis Ex.27 on which heavy reliance was placed by the Claims Tribunal was signed only by claimant No.1 and her advocate and not by any of the opponents. The Tribunal made only a brief reference to the age, income of the deceased and other relevant factors. However, no detailed calculations were arrived at. Most importantly, the Tribunal did not even make a reference as to who was negligent for causing the accident. Without coming to the conclusion on all these aspects, the Tribunal proceeded to award a sum as substantial as Rs.22,38,860/- on on a pursis filed by the claimants. To our mind, the Tribunal could not and ought not to have adopted such shortcut. The claim petition ought to be adjudicated. Proper issues ought to have been framed. Evidence ought to have been led by both sides. Only thereafter, after hearing the arguments of the appearing parties and on the basis of the evidence on record, the Tribunal could have awarded compensation. Such compensation which had to be just, had to have some basis for arriving at the computation.
6. This is not to suggest that the claimants were not entitled to any compensation at all. With respect to the nature of the accident, involvement of the vehicles in question and the fact that the deceased died during such accident, there is no dispute at all. It has also come on record that the deceased was employed in the Government as Assistant Engineer and was drawing considerable salary and that he was aged about 38 years. The fact that the claimants should receive compensation is not in doubt. But what exactly should be the compensation has to be ascertained after permitting the parties to lead proper evidence on record.
7. Under the circumstances, we are inclined to set aside the impugned judgment and award and remand the proceedings to the Tribunal for fresh consideration and disposal in accordance with law after permitting both sides to lead such further evidence, as may be found necessary. While doing so, however, we cannot lose sight of the fact that the accident was of an old one and that the claimants are, as noted above, entitled to compensation. We are informed that the Insurance Company had deposited the entire decretal amount, out of which Rs.5 lacs was permitted to be withdrawn by the claimants. Remaining amount was invested by the Claims Tribunal and the claimants are receiving periodical interest thereon.
8. Under the circumstances, this appeal is disposed of with following directions :
The impugned judgment and award is set aside.
Proceedings are remanded to the Claims Tribunal for fresh consideration and decision in accordance with law after permitting both sides to lead such further evidence as may be found necessary. Evidence already recorded shall be preserved.
The Tribunal may attempt to dispose of the proceedings expeditiously and preferably by 31st July 2012.
The amount deposited by the Insurance Company and which is already invested by the Claims Tribunal shall not be disturbed. The claimants would also continue to receive interest accruing on such investments. Upon ultimate award of the Claims Tribunal, such amount shall be adjusted towards the satisfaction of the fresh award.
It is clarified that we have expressed no opinion on the claim made by the claimants and it would be open for the Tribunal to arrive at computation of just compensation payable to the claimants which may be lower or higher than what was previously awarded.
R & P be transmitted to the Tribunal.
(Akil Kureshi J.) (C.L.Soni, J.) (vjn) Top