New India Assurance Company

S.B. CIVIL WRIT PETITION NO. 5285/2004 The New India Assurance Company Ltd. Vs. Smt.Ugma Devi & ors. Date of Order :: 24th October 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Jagdish Vyas, for the petitioner Mr.Sanjay Paliwal for ) Mr.Anil Bachhawat, ) Mr.K.R.Choudhary, ) Mr.Rishabh Sancheti, ) for the respondents. BY THE COURT: Having heard learned counsel for the parties and having perused the material placed on record, this Court is unable to approve the procedure as adopted by the Motor Accidents Claims Tribunal, Sojat camp Jaitaran in Claim Case No. 16/2007 where the learned Tribunal has proceeded to reject the application moved by the petitioner-insurer under Section 170 of the Motor Vehicles Act, 1988 ('the Act') by the impugned order dated 12.07.2004 (Annex.4) and has altogether denied the petitioner the right to cross-examine the witnesses. Shorn of unnecessary details, suffice is to notice for the present purpose that the claimants-respondents Nos.1 to 4, being the heirs and dependents of the vehicular accident victim Govind Singh (32 years), have filed the claim application with the submissions, inter alia, that on 17.09.2001 the victim, while travelling in a bus bearing registration No. RJ 19 P 4344 met with his untimely end for the bus colliding with a truck bearing registration No. GJ 1 U 3974 on National Highway No.8 near Nadiyad. The claimants have submitted that the victim was engaged in a private job earning about Rs.4,400/- per month and, with reference to their loss of dependency and other losses, have claimed compensation against the owners, drivers and insurers of the vehicles involved in the accident. The petitioner New India Assurance Company Ltd. is stated to be the insurer of the aforementioned truck bearing registration No. GJ 1 U 3974. The petitioner has filed a reply (Annex.2) to the said claim application and, while denying the assertion of the claimants of their entitlement to compensation, has asserted, inter alia, that the accident occurred exclusively for the fault of the bus driver; that the liability of the Insurance Company would remain limited as per the policy concerned; and that it would be adopting the provisions of Sections 147 and 149 of the Act for the purpose of its defence. It appears that in this claim case, the statements of the claimant No. 1 commenced on 09.03.2004 but remained incomplete; and thereafter, the petitioner moved the application under Section 170 of the Act (Annex.3) on 12.07.2004 before the Tribunal with the submissions that the driver and owner of the vehicle involved in the accident i.e., the truck concerned, were not participating in the proceedings and were not contesting the same and it was in the interest of justice that the Insurance Company be allowed to contest the matter on all the points involved. The said application came to be rejected on 12.07.2004 itself by the learned Tribunal with an entirely non-speaking order. On this very date, the crossexamination of the claimant Ugma Devi was allowed to be carried out by the counsel representing the non-applicants Nos.1 to 3 i.e., the persons related with the bus aforesaid but in relation to the non-applicant No.6 i.e., the present petitioner, the learned Tribunal declined

the permission for cross-examination with the observations that the rights of the Insurance Company remain limited. Hence, this writ petition. The approach of the learned Tribunal in rejecting the application under Section 170 of the Act in this case is very difficult to be appreciated. The Tribunal has proceeded to reject the said application with a cryptic single line order that the application was presented and the same stands rejected. Learned counsel for the petitioner has categorically submitted on instructions that there had not been any other order passed by the Tribunal on the said application. It appears that the facts and circumstances of the case particularly the position that owner and driver of the truck concerned are not participating in the proceedings and the matter relates to highway collision of two vehicles, have not at all been taken into consideration. No reason has been assigned by the Tribunal as to why the application as moved by the petitioner insurer was not to be allowed; and then, the denial of opportunity of cross-examination altogether does not appear justified either. Learned counsel for the respondents and learned guardian ad litem appearing for the respondents Nos.2 to 4 could also not put any suggestion to support the order impugned but the learned guardian ad litem submitted that having regard to the circumstances of the case, the Tribunal may be directed to proceed with the matter expeditiously. Such submissions, of course, appear justified. It is noticed that the claim application was filed in the year 2002 in relation to the demise of a 32 years old person by his wife and three minor children. In view of the order so passed and the procedure so adopted by the Tribunal, this writ petition was entertained on 10.01.2005 and the proceedings in the claim case were ordered to remain stayed. In the circumstances of the case, it does appear appropriate that the application as moved by the petitioner insurer be allowed and the petitioner be permitted to contest the claim including carrying out crossexamination of the claimants and other witnesses as might be required and the matter be assigned priority by the Tribunal. As a result of the aforesaid, this writ petition succeeds and is allowed; the impugned order dated 12.07.2004 (Annex.4) is quashed and set aside insofar it relates to rejection of the application moved by the petitioner under Section 170 of the Act; the said application stands allowed and the petitioner insurer is permitted to contest the claim, to carry out crossexamination of the claimants and other witnesses as might be required, and to defend itself in accordance with law. It shall be expected of the Tribunal to proceed with the matter expeditiously while assigning it reasonable priority. In the circumstances of the case, there shall be no order as to costs of this writ petition. However, it shall be required of the petitioner-insurer to make payment of the fees of the guardian ad litem quantified at Rs.2,200/- (two thousand two hundred) for the present case. (DINESH MAHESHWARI), J. MK