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2007 DAILYLAW 2297 (DEL)

UNITED INDIA INSURANCE CO. LTD v. PUSHPA

2007-09-18

P K Bhasin

body2007
P. K. BHASIN, J. ( 1 ) BY this petition, the petitioner is seeking to invoke the powers of this court under Article 227 of the Constitution of India, while challenging the order dated 21. 11. 2005 passed by the M. A. C. T. whereby its review petition against the award dated 16-10-2003 passed in MACT case No. 567/03 was dismissed. ( 2 ) THE claim petition was filed under Sections 166 and 140 of Motor vehicles Act by respondent Nos. 1-6 herein against the petitioner (arrayed as respondent No. 3 in the claim petition), the owner (arrayed as respondent No. 2 in the claim petition) and also against the driver allegedly driving the offending vehicle at the time of accident (arrayed as respondent No. 1 in the claim petition) claiming compensation of Rs. 10,00,000/- on account of death of Late Sh. Tajveer Singh who was husband of respondent No. 1, father of respondent Nos. 2-5 and son of respondent No. 6, caused by one maruti car bearing No. DL 1cb 0953 being driven allegedly by respondent No. 1 (respondent No. 7 herein) in a rash and negligent manner. ( 3 ) THE claim petition was resisted by the respondent No. 1 (the driver of the offending vehicle) on the ground that actually he was not driving the car at the time of the accident but it was being driven by the son of the owner of the car although he (respondent No. 1 in the claim petition) was sitting in that car. The owner of the car denied that his son was driving the car. The insurance company took the plea that it was not liable to pay any compensation since the driver (Avtar Singh) was a minor on the date of accident and could not have possessed a valid driving licence. ( 4 ) ON consideration of all the relevant facts and evidence brought on record, the M. A. C. T. passed an award of Rs. 14,57,000/- in favour of the respondent Nos. 1-6 herein along with interest on the compensation so awarded @ 9 % p. a. from the date of filing of the petition till the date of actual payment and further held respondent No. 8 herein, owner of the offending car as well as the petitioner herein jointly and severally liable to pay the compensation. 1-6 herein along with interest on the compensation so awarded @ 9 % p. a. from the date of filing of the petition till the date of actual payment and further held respondent No. 8 herein, owner of the offending car as well as the petitioner herein jointly and severally liable to pay the compensation. However, the petitioner being the insurer of the offending car on the date of accident was directed to pay the awarded amount. As far as respondent No. 7 herein (the driver) is concerned, he was absolved of the liability by the tribunal on the ground that he was not driving the offending vehicle at the time of the accident but actually it was the son of the owner of the car (respondent No. 8 herein)who was driving the car. ( 5 ) AGGRIEVED by the said award passed by the M. A. C. T, the insurance company i. e. the petitioner herein, preferred an appeal before this court (being MAC App. No. 39/2004 ). However, the same was withdrawn on 27-02-2004 with liberty to file a review application before the tribunal, if maintainable. ( 6 ) REVIEW application was then moved before the MACT on behalf of insurance company on two grounds. Firstly, on the ground that the insurance company did not have any opportunity to lead any evidence as regards its recovery rights which it was entitled to get since the tribunal had come to the finding that at the time of accident the offending vehicle was not being driven by respondent No. Krespondent No. 7 herein) but by the son of respondent No. 8 herein. Second ground was that the tribunal had wrongly assumed the monthly earnings of the deceased as Rs. 7,500/- which was contrary to the pleading of the petitioner (respondent No. 1 herein) who had in fact averred that monthly earnings of the deceased were Rs. 4,000/-only. The M. A. C. T. while dismissing the review application, as regards first contention, observed that the fact that at the time of accident the offending vehicle was being driven by son of respondent No. 2 (respondent No. 8 herein)had not sprung from oblivion as this had been the defence of respondent No. Krespondent No. 7 herein) since beginning and thus insurance company had ample opportunity to meet these rival pleas of the owner of the car and the alleged driver. As regards second contention, the tribunal observed that law of pleadings does not apply to the proceedings under the Motor Vehicles Act, 1988 and since the victims belonged to the have-nots strata of the society, and also considering their educational status, he found the discrepancy between the earnings pleaded and that claimed at the time of evidence as insignificant. ( 7 ) FROM the fore-going, it is clear that the petitioner is really aggrieved by the quantum of the compensation fixed by the tribunal as well as its direction that the compensation should be paid by it. The award of MACT is appealable and, as noticed already, the present petitioner had filed an appeal in this Court but later on chose to withdraw it. Thereafter it had filed the review petition which the learned tribunal entertained but subsequently rejected it. The petitioner had sought review of the award on the ground that the income of the deceased had been wrongly assessed at a figure which was not even pleaded by the claimants in the claim petition and in the absence of any pleadings to the effect that the income of the deceased was Rs. 7500/-compensation could not have been arrived at taking into consideration that income figure. If at all the insurance company could impugn the award on the question of quantum of compensation it could have been done only in the appeal. However, after availing its right of filing an appeal it withdrew its appeal and, therefore, it could not have urged that plea in a review petition. A review petition can be filed only if there is an error apparent on the face of record but not to challenge the correctness and legality of the findings of the tribunal. Since the insurance company had filed an appeal it must have done that on the ground that the impugned award of the tribunal was not sustainable on facts as well as law. The tribunal could not have reviewed its award on the ground that it had gone wrong on some point of fact or law. Just because the learned tribunal took into consideration the figure of income of the deceased at Rs. The tribunal could not have reviewed its award on the ground that it had gone wrong on some point of fact or law. Just because the learned tribunal took into consideration the figure of income of the deceased at Rs. 7500/- p. m. , which the insurance company feels was on a higher side, it could not be said that there was an error apparent on the face of record and if at all the learned tribunal had committed any legal error in taking into consideration the said figure of Rs. 7500/- it could be corrected only in an appeal and even now the petitioner through this petition seeks to get that relief from this Court. That, however, could not be granted to the petitioner through the route of review jurisdiction by the mact and cannot now by this Court also. It is now well settled that the supervisory jurisdiction conferred upon the High Court under Article 227 of the Constitution of India is to see that an inferior Court or tribunal has proceeded within its jurisdiction and the High Court is not to sit as a Court of appeal while exercising the jurisdiction under Article 227. I do not find any infirmity in the impugned order of the learned tribunal passed in the review petition. The claimants had taken a plea that it was respondent No. 1 in the claim petition who was driving the offending car while the plea taken by that respondent was that he was not driving the car and, in fact, it was the son of the owner of that car who was driving it and on the basis of evidence adduced during the trial the learned tribunal had come to the conclusion that the claimants had failed to establish that it was the respondent No. 1 before it who was driving the offending vehicle and held that, in fact, it was the son of the owner of the car who was driving the same at the time of the accident. The insurance company had taken its stand on this aspect of the matter and on the tribunal coming to the conclusion as aforesaid the insurance company could not have avoided its liability of payment of compensation to the victims of the accident caused by the car which it had insured on the ground that it did not expect that respondent no. 1 in the claim petition would be exonerated and somebody else would be found to be the driver of the offending car at the time of the accident. ( 8 ) I am, therefore, of the view that there is no merit in this petition and the same is accordingly dismissed. Parties are, however, left to bear their own costs.