PREMILABEN ISHWARLAL RAIJADA Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) This C.R.A. is directed against the judgment and order of M.A.C.T. (Main) at Rajkot dated 21-9-1993 arising from the execution proceedings for executing the above (sic.) order. It appears that the M.A.C.P. No. 109 of 1990 instituted by one D. P. Dholakia before the Tribunal at Rajkot. In the accident two vehicles were involved one being the Fiat car which was not insured as required under the provisions of the Motor Vehicles Act and another vehicle being autorickshaw which was insured with the Oriental Insurance Company LIMITED The claim of the claimant was partially passed by the Tribunal inter alia holding that he was entitled to recover amount of Rs. 43,000.00 with 12% interest from the date of the application till realisation and proportionate costs of the petition from the present petitioner who was the original opponent travelling in the Fiat car from opponent Nos. 3 and 4 jointly and severally. Though it is stated in the memo of C.R.A. that the judgment and award of the Tribunal will be produced before the Court at the time of hearing it must be stated that the same is not produced. The driver and owner of the Fiat car one of them being the present petitioner was found to have contributed to the accident that occurred and finding of the Tribunal was that there was contributory negligence of the petitioner, namely, Premilaben Ishwarlal Raijada who was the owner of the Fiat car. The liability of the driver of autorickshaw and the Insurance Company was held to the extent of 75% and therefore, the Oriental Insurance Company LIMITED, opponent herein, was held to be liable to pay or discharge its liability to the extent of 75%. Unfortunately, without reading the award and knowing that the liability of the Oriental Insurance Company LIMITED, which insured the autorickshaw was held to the extent of 75% only and the Tribunal has recorded a positive finding that it was a case of contributory negligence where but for the negligence of the owner and the driver of the Fiat car, present petitioner, no accident would have occurred, the Tribunal passed the award for the aforesaid amount holding that the present petitioner and opponent Nos. 3 and 4 were jointly and severally liable. The liability of the owner and driver of autorickshaw for the accident was assessed at 75% and to that extent the Insurance Company present opponent herein was liable to deposit 75% of the amount awarded. The Tribunal has in terms found that it is a case of contributory negligence of the two vehicles and therefore, the Insurance Co., which insured the autorickshaw, whose contributory negligence was assessed at 75% was thereby to deposit the amount of award, costs and interest to the extent of 75% only. Unfortunately, the opponent herein, namely, the Oriental Insurance Co., with whom the autorickshaw was insured deposited the full amount of award though the liability of the vehicle insured with it was assessed at 75% only. In fact, therefore, the Insurance Co., was liable to deposit the amount to the extent of 75% of the award with costs and interest. Since the full amount was awarded the claimant withdrew the full amount from the Tribunal and the mistake was detected by the Senior Divisional Manager of the Oriental Insurance Co., present opponent, and application was made to recover the excess amount under S.110E of Motor Vehicles Act as it stood prior to the amendment of the Act which is equal to S.174 of the Motor Vehicles Act, 1988. After examining the application same was admitted by the Tribunal and notice was issued to the opponent and below such application in the Darkhast Proceeding No. 7 of 1994 the Tribunal passed the judgment and order, dated 21-9-1993 allowing the application and calling upon the owner and driver of the vehicle to pay to the Oriental Insurance Co., amount of Rs. 14,096.25 ps. within two months from the date of the order.

(2.) Being aggrieved by such judgment and order of the Tribunal, the present C.R.A. is preferred by the owner of the Fiat car whose liability was assessed at 25% and whose vehicle was admittedly not insured as per the requirements of law. Since the owner of the Fiat car was called upon to pay the amount to the extent of 25% of the total amount awarded, he has preferred the present C.R.A. challenging the judgment and award of the Tribunal. It shall have to be kept in mind that the driver and owner of the vehicle having been found to have contributed to the vehicular accident to the extent of 25% the owner of the Fiat car has come forward stating that since the liability was said to be joint and several even if the liability was assessed at 75% for rickshaw and 25% for the Fiat car it was not liable to refund the amount or redeposit the amount in the Tribunal. It failed to deposit the amount of its share and therefore, the claim for the full amount of Rs. 56,385.00 though it ought to have been 25% lesser because to the extent the owner and driver of the Fiat car was held to have contributed towards their share.

(3.) Mr. Y. S. Lakhani, learned Counsel appearing for the petitioner, who is the owner of the Fiat car has placed reliance on present S.174 of the Motor Vehicles Act, 1988 which is comparable with S.110E of the Motor Vehicles Act which stood repealed by the present Act. Both the provisions, i.e., S.110E of the old Act and S.174 of the new Act are put in juxtaposition in the tabular form herein so that the contention of the learned Advocate appearing for both the parties can be well appreciated in their proper perspective :- S.110E Recovery of money from Insurer as arrears of land revenue : Where any money is due from any person under an award the Claims Tribunal may, on an application made to it by the person entitled to the money, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue. S.174 Recovery of money from Insurer as arrears of land revenue : Where any money is due from any person under an award the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue.