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N.I.C.LTD. versus ARJUN & ORS.

High Court of Rajasthan

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N.I.C.LTD. v ARJUN & ORS. - CCOMA Case No. 0935 of 2007 [2007] RD-RJ 1683 (5 April 2007)

11 to 16.

(1) S.B. CIVIL CROSS-OBJECTION NO.0935/2007.

(2) S.B. CIVIL CROSS-OBJECTION NO.0936/2007.

(3) S.B. CIVIL CROSS-OBJECTION NO.0937/2007.

(4) S.B. CIVIL CROSS-OBJECTION NO.0938/2007.

(5) S.B. CIVIL CROSS-OBJECTION NO.0939/2007.

(6) S.B. CIVIL CROSS-OBJECTION NO.0941/2007. 5th April 2007.

Date of Order ::

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. P.R. Mehta, for the cross-objectors. ....

This order shall govern S. B. Civil Cross-Objection Nos. 0935/2007, 0936/2007, 0937/2007, 0938/2007, 0939/2007 and 0941/2007 that have been submitted by the joint owners of the offending vehicles in the appeals preferred by the insurer against the common award dated 31.08.2005 made by the Motor Accidents Claims Tribunal (Fast Track), Banswara.

In a vehicular accident that occurred on 11.02.2000, the tractor and trailer bearing respective registration numbers

RJ03 R 1108 and RJ03 E 0745 capsized in Kusumar valley causing injuries to the occupants. Sakuda and Sewla succumbed to the injuries whereas Arjun, Nasu, Jaliya, Bhattu alias Bhatuda, and Chetaniya sustained varying simple and grievous injuries. Seven claim applications were submitted respectively by the dependants of the deceased and by the injured for the loss suffered by them. The Tribunal, by its common award dated 31.08.2005, has held that the accident occurred for rash and negligent driving of the tractor-trailer; and has assessed different amount of compensation payable to the claimants/set of claimants with reference to the evidence adduced in relation to each individual case.

In issue No.3, the Tribunal has considered the objections raised by the insurer that the victims were travelling in the vehicles that were not meant for transportation of any passenger; and that the tractor was being used for the purposes other than agricultural use in violation of policy conditions. The Tribunal has also noticed the assertion on the part of the claimants that the victims were travelling in the said tractor-trailer in their capacity as labourers transporting earth; and has observed that the vehicle owner has not appeared in evidence and has not established that the persons occupying the tractor-trailer were the labourers for agricultural purposes.

The Tribunal has not accepted the contention on the part of the claimants that the victims were the labourers on the vehicle and has also found that no premium was charged by the insurer for the alleged labourers.

The Tribunal has exonerated the insurer of its liability in these cases but then has proceeded to observe that for making the award real and meaningful, the insurer may be directed to make payment of the award amount to the claimants, if not paid by the owner of the vehicle within two months, and thereafter the insurer may recover the same from the owner. The Tribunal has, accordingly, made the final award in the following terms:-

": 1,73,400/- , 1,30,200/- , 50,000/- , 28,000/- , 33,000/- , $% $% 18,000/- 36,000/-

-. 1 3 5 - / / 1 3 1 5 1 1 8 1 % 6 5 : 8 1 1 -. 1 3 5 1 8 1 5 1 1 1 5 - 1 1

-. 4 5 A 1 % 8 1 5 1 1 1 5 8 , % 1

C 1 % 1 5 1 3 1 5 1 5 8 "

Assailing the award aforesaid, the insurer of the vehicle has preferred separate appeals wherein these cross- objections have been submitted. The insurer has contended in the appeals that it were not liable to make any payment in respect of the passengers travelling in tractor-trailer. This

Court has admitted the appeals filed by the insurer and effect and operation of the award dated 31.08.2005 to the extent of payment by the insurance company has been stayed. The cross-objectors, who are joint owners of the vehicle involved in accident, were served with notices of the respective appeals in the month of May 2006 and appearance on their behalf was put by filing Vakalatana on 24.07.2006 in CMA No.508/2006

(related with Cross-Objection No. 0941/2007).

(Scanning through the records, it is also noticed that counsel for the said respondents (cross-objectors) has filed memo of appearance in other appeals stating that he was the counsel for the respondents in the `lower court'. Learned counsel Mr. P.R. Mehta has expressed regrets during the course of submissions for such statement made in the memo of appearance for he was not the counsel for the respondents- cross-objectors before the Tribunal; rather the said respondents remained ex parte. Be that as it may)

Perusal of the record further shows that after service was complete, the matters were heard on 12.12.2006 for final orders on stay application; and on that date learned counsel appearing for the respondents, after attempting to argue for some time, submitted that his instructions were not complete and prayed for, and was granted, four weeks' time to complete his instructions. Thereafter, the appeals are yet to be taken up for final orders on stay applications.

In the meantime, these cross-objections were filed on 05.01.2007 and are reported to be barred by limitation; Cross-

Objection No.0935/2007 is delayed by 191 days and the others by 135 days; and the applications seeking condonation of delay have been placed for orders.

Learned counsel appearing for the cross-objectors submitted that in view of proviso (i)(c) to Section 147 (1) of the

Motor Vehicles Act, the Tribunal has been in error in exonerating the insurer of its liability; that during the course of trial of the claim applications the capacity of the victims has been asserted as `Mazdoors' travelling in the vehicle in question. Learned counsel submitted that to the extent of liability arising under the Workmen's Compensation Act, the insurer ought to have been made liable to satisfy the award of compensation; and beyond such liability, if any further amount is payable, then only the question of fastening any liability upon the cross-objectors-respondents would arise. Learned counsel further submitted that the cross-objectors were not possessed of sufficient means to bear the expenses for filing of the cross-objections, their crops been destroyed because of outpour of rains.

Having considered the submissions and having examined the record, this Court is clearly of opinion that these time barred cross-objections are essentially in the nature of appeals by the persons who have been held liable to make payment of the amount of compensation awarded. The cross- objectors are none other than owners of the vehicle involved in accident and qua them, the directions of the Tribunal are specific and clear, as noticed supra. Whether the liability is ultimately mulcted upon the insurer or not the cross-objectors, as owners of the vehicle, nevertheless remain in primary liability. In fact, in the present cases, the insurer has been exonerated of its liability; and it is only in relation to the proposition yet adopted by the Tribunal of directing the insurer to make payment that the insurer has preferred the concerned appeals.

The cross-objectors have consciously chosen to remain ex parte before the Tribunal; have not filed any appeal against the award impugned made as back as on 31.08.2005; and then, consciously chose not to file any cross-objections even though they were served with the notices of the appeals in the month of May 2006 and appearance was put on their behalf in the month of July 2006 and even though the matters were argued on their behalf on 12.12.2006.

As noticed above, operation and effect of the impugned award to the extent of payment by the insurance company has been stayed by this Court. The cross-objectors, owners, have not made any payment under the award in question. The resultant position is that the claimants stand deprived of reasonable amount of compensation.

Looking to the requirements of Section 173 of the Motor

Vehicles Act, this Court is of opinion that these kind of cross- objections, essentially in the nature of appeal, cannot be considered further even on application seeking condonation of delay unless and until the cross-objectors comply with the requirements of Section 173 of the Motor Vehicles Act, of depositing 50% of the award amount or Rs.25,000/-, whichever applicable.

Moreover, the cross-objectors are seeking condonation of inordinate delay in filing these cross-objections and having regard to the overall facts and circumstances of these cases, it also appears appropriate that apart from fulfilling the requirements of Section 173 of the Motor Vehicles Act in respect of the award of compensation in each case, the cross- objectors-respondents ought to deposit minimum 50% of the award amount before their applications for condonation of delay are considered further.

Thus, the cross-objectors-respondents are directed to make payment of 50% of the award amount together with interest thereupon within 30 days from today with the Tribunal concerned in each of the claim case and to produce receipt thereof in the Registry within a week wherefrom.

Upon the cross-objectors-respondents' carrying out the compliance of this order by producing necessary proof of deposit of amount, the applications seeking condonation of delay in these cross-objections be placed for further consideration on 14.05.2007; in other event, such applications under Section 5 Limitation Act shall stand rejected and the cross-objections shall stand dismissed.

Civil Miscellaneous Appeals related with these cross- objections be distinctly shown in the cause list and be placed for final orders on stay application on 14.05.2007.

(DINESH MAHESHWARI), J.

Mohan/ 12.

S.B. CIVIL CROSS-OBJECTION NO.0936/2007.

Date of Order : 5th April 2007.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. P.R. Mehta, for the cross-objectors. ....

Vide order made in S.B. Civil Cross-objection

No.0935/2007.

(DINESH MAHESHWARI), J.

Mohan/ 13.

S.B. CIVIL CROSS-OBJECTION NO.0937/2007.

Date of Order : 5th April 2007.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. P.R. Mehta, for the cross-objectors. ....

Vide order made in S.B. Civil Cross-objection

No.0935/2007.

(DINESH MAHESHWARI), J.

Mohan/ 14.

S.B. CIVIL CROSS-OBJECTION NO.0938/2007.

Date of Order : 5th April 2007.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. P.R. Mehta, for the cross-objectors. ....

Vide order made in S.B. Civil Cross-objection

No.0935/2007.

(DINESH MAHESHWARI), J.

Mohan/ 15.

S.B. CIVIL CROSS-OBJECTION NO.0939/2007.

Date of Order : 5th April 2007.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. P.R. Mehta, for the cross-objectors. ....

Vide order made in S.B. Civil Cross-objection

No.0935/2007 .

(DINESH MAHESHWARI), J.

Mohan/ 16.

S.B. CIVIL CROSS-OBJECTION NO.0941/2007.

Date of Order : 5th April 2007.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. P.R. Mehta, for the cross-objectors. ....

Vide order made in S.B. Civil Cross-objection

No.0935/2007 .

(DINESH MAHESHWARI), J.

Mohan/


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