The Bombay High Court recently observed that it is the fundamental duty of Motor Accident Claims Tribunal (MACT) to arrive at a proper conclusion and award just compensation. The court concluded that a 'cryptic judgment' passed by MACT deserves remand and allowed an appeal filed by the Oriental Insurance Company Ltd.
Justice Vibha Kankanwadi of Aurangabad bench set aside a judgment of MACT partly allowing a petition filed under Section 166 of the Motor Vehicles Act and awarding compensation of Rs.65,000 and Rs.1,20,000 to the claimants.
According to the claimants, they were travelling in a tempo carrying soybean bags on October 18, 2006 to Latur. It was stated that they were sitting in tempo to protect their goods. The said tempo turned upside down and claimants sustained severe injuries. The tempo was insured with Oriental Insurance at the time of the accident.
Oriental Insurance argued before MACT that both the claimants were not travelling with their goods in the said tempo which is registered as a goods carriage only and risk of the passengers travelling unauthorizedly from the said tempo was not covered under the insurance policy. There is breach of terms of policy and therefore, insurance company cannot be held responsible to pay any amount of compensation.
Furthermore, the insurance company in its appeal argued that the driver of the said tempo was also the owner and one of the claimants. He was driving in a rash and negligent manner and when they reached Murud village, while giving side to a rickshaw, the tempo went out of control and turned upside down. As a result of which, both of the claimants sustained severe injuries. They were admitted to hospital. They had sustained a fracture to their leg. Both of them claimed to be agriculturist and stated that they get an additional source of income by selling milk. Both of them were earning Rs.3,000 per month and hence they claimed compensation of Rs.1,00,000 and Rs.2,00,000 respectively, together with interest.
Advocate US Malse appeared for the Insurance Company and Advocate MV Patil appeared on behalf of the claimants.
Malse vehemently argued that the Tribunal failed to consider that the disability certificate produced by the claimants was not proved by examining the concerned Medical Officer. The learned Tribunal had come to the conclusion that the claimants were gratuitous passengers, travelling in a goods vehicle and they could not have been termed as "third party". The learned Tribunal has relied on the decision in United India Insurance Company Ltd. vs. K.M. Poonam and others.
Relying on Supreme Court's decision in National Insurance Company Ltd. vs. Cholleti Bharatamma and others, Malse pointed out in the said judgement that when there was no proof that deceased was travelling in lorry along with driver or cleaner, as owner of goods and when travelling with goods itself does not entitle anyone to protection u/s 147 of Motor Vehicles Act, it is held that the deceased was not held entitled to protection under Section 147.
On the other hand, Patil argued that the appeal is not maintainable in view of Section 149 of the Motor Vehicles Act. The Tribunal has rightly passed the award of 'pay and recover' and it had come on record that the claimants were travelling as owner of the goods. It was also submitted, that if the disability certificate ought not to have been considered by the learned Tribunal without examining the author thereof the matter can be remanded.
Court noted –
"At the outset, it can be seen that though both the claimants had produced the disability certificate on record, which is stated to have been issued by medical officer, Maindarkar Orthopedic and General Hospital issued by Dr. Ajay K. Maindarkar, but it appears that he has not been examined."
Thus, in view of the decision of Supreme Court in Rajesh Kumar @ Raju vs. Yudhvir Singh & anr wherein it was held that "Tribunal cannot accept a disability certificate without examining the Doctor concerned", Justice Kankanwadi said that in the present case, claimant ought to have examined the author of the disability certificate. Since he has not been examined, in the interest of justice, the matter deserves remand.
Setting aside MACT's judgement, Court held-
"Chairman, Motor Accident Claims Tribunal has not appreciated the evidence properly, so also, a very cryptic Judgment has been passed. It can be still observed, that as regards negligence is concerned, without appreciating proper evidence, directly conclusion has been drawn and then the fact that the claimants had come with a case that they were travelling as owners of the goods from a goods vehicle, has also not been considered and appreciated.
Taking into consideration the said cryptic Judgment also it deserves remand, in view of the fact that, it is the fundamental duty of Motor Accident Claims Tribunal to arrive at a proper conclusion and award just compensation."
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