VASANTHY Vs. UNITED INDIA INSURANCE CO LTD

JUDGEMENT

(1.) Appellant in this case filed a claim petition before the Motor Accidents Claims Tribunal, Ernakulam seeking compensation on account of heavy damage caused to property, that is, Mercedes car, in a motor vehicle accident happened on 19.7.87. The allegation was that a stage carriage bearing registration No. KEF 2221 driven by the respondent No. 1 in a rash and negligent manner hit against it. The damage of compensation claimed was Rs. 1,16,000. After considering the evidence, the learned Tribunal assessed the amount of damages as Rs. 95,604. But, according to the Tribunal, in view of the proviso to section 110 (1) of the Motor Vehicles Act, it is for the claimant to file civil suit and on that ground claim was found to be not maintainable and was dismissed. The above finding is challenged by the claimant here in this appeal.

(2.) . Proviso to section 110 (1) of the Motor Vehicles Act provides as follows: "Provided that where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a civil court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim." There is no exclusion of the power of the Tribunal to award damages for the property. It is an enabling provision for the claimant to approach the civil court also. But, that is at his option. Therefore, there is no bar. So, the finding of the court below \ that in view of the proviso to section 110 (1) of the Act, the claim for damages is not maintainable is incorrect and we set aside the same.

(3.) Learned counsel for the insurance company submitted that with regard to the quantum of compensation awarded, no appeal was filed by the insurance company because the claim was rejected fully holding that the claim itself was not maintainable. It is also submitted that the decision was taken by the Motor Accidents Claims Tribunal, North Paravur. Originally, the case was filed before the M.A.C.T., Ernakulam and it was transferred to Perumbavoor and then to North Paravur. No notice was issued from North Paravur except putting a notice in the notice-board. Therefore, it was unable to contest the matter. It is further submitted that there is a statutory limitation in the policy. On going through the award, we find that the amount was calculated after going through the policy submitted by the petitioner and, therefore, there is no ground to challenge the quantum assessed by Claims Tribunal. Despite service of notice, there was no appearance by the respondent No. 2 before this court. He might have decided not to contest the case as there is no liability cast on him by the Tribunal. We note that when the case was first transferred to M.A.C.T., North Paravur, no notice was issued to him also. He is not been declared exparte also. The question whether there is statutory limitation for the claim has to be decided by the Tribunal afresh taking into account the terms of the policy and other statutory contentions. For that, if the insurance company pleads that there is limitation, it is for the insurance company to prove that there is limitation in the policy. If the respondent No. 2 appeared and filed written statement, contentions therein also have to be considered by the Tribunal as records show that no effective notice was served on him after the case was finally transferred to the M.A.C.T., North Paravur. For deciding the same, we remand the matter. The Tribunal should decide the matter within six months from the date of receipt of the records. The parties are directed to appear before the Motor Accidents Claims Tribunal, North Paravur on 3.1.2002. Fresh notice shall be issued to the respondent No. 2. Parties shall be allowed to adduce evidence also. Registry should send the records forthwith to the M.A.C.T., North Paravur. The documents necessary for proving the insurance claim, additional written statement, if any, etc., should be filed on the first appearance itself. Appeal is allowed by way of remand. Appeal allowed.