SETHNA BERJIS JEHANGIR Vs. JOGENDRA SHIVNARAYAN KUSHAVAH

JUDGEMENT

(1.) Heard learned advocate Ms. Amrita Ajmera appearing with Mr. Bomi H.Shethna for the petitioner. Respondents though duly served, have remained absent. Perused the record.

(2.) A strange, but interesting position has come on record when by impugned order dated 11.9.2018 below Exh.3 in M.A.C.P. No.734 of 2009, the M.A.C.T. of Ahmedabad City has dismissed the claim petition against the driver and owner on the ground that petitioner has not served the opponents No.1 and 2 inspite of opportunity granted to the petitioner on earlier occasion. It is undisputed fact that opponents No.1 and 2 before the Tribunal are respectively the driver and owner of the vehicle, which was involved in the accident. The copy of claim petition being M.A.C.P. No.734 of 2009 is placed on record at Annexure-D. The perusal of such application makes it clear that the injured claimant was minor on the date of accident i.e. 23.2.2005. Probably, there was no-one to take care of his legal rights at the relevant time, the injured claimant could not file claim petition at the earliest after the accident and therefore, he has preferred the claim petition on 29.7.2009, after he became major. So far as nature of accident is concerned, it is disclosed in such application that on 23.2.2005, when petitioner was going towards his house from tution class on his bicycle, the opponent No.1 has driven the Truck No.WB-23A-4670 in rash and negligent manner and dashed with the bicycle of the petitioner, which resulted into grievous injuries on various parts of the body. Since petitioner has received grievous injuries, he has to take indoor treatment as well as treatment by way of plastic surgery and cosmetic surgery so also other operational treatment for long time and since he has to undergo pain, shock, suffering and inconvenience, he has claimed in all Rs.4,50,000/- from driver, owner and insurer of such vehicle being opponents No.1, 2 and 3 respectively. Considering the fact that vehicle was registered in the State of West Bengal, naturally, the address of the owner of the vehicle is of Calcutta in West Bengal; whereas, address of the driver is of Uttar Pradesh and therefore, it was certainly difficult for the claimant, who has attained majority just before filing of such claim petition and therefore, notice of claim petition could not be served upon them for long time. So far as the issue of delay in filing claim petition is concerned, the fact remains that there is no limitation to file such claim petition and more particularly, in case of minor litigant, pursuant to Section 6 of the Limitation Act, 1963, minority is considered one of the disability in not filing any litigation within prescribed period of limitation and therefore, such litigants can initiate legal proceedings even after they attain the age of majority. Therefore, no fault can be found with the petitioner for not filing the claim petition at the earliest so as to confirm the service of opponents at the relevant time when they would certainly be available at the same address, which is disclosed by them during police investigation.

(3.) Therefore, practically, in such claim petition, when Tribunal has allowed an application for permission to engage an advocate, not taking appropriate steps for confirming service upon such opponents is to be considered as either inaction or negligence of concerned advocate rather than the injured claimant, who is not a regular litigant to secure any benefit in his favour, but just a victim of road accident for no fault on his part while moving in public place. Unfortunately, Tribunal has failed to grasp, realise and digest the basic principle of revised provisions of Motor Vehicles Act, 1988, whereby the statute has made it compulsory for the investigating agency to forward the details of accident in prescribed Form No.54 as per rules under the Act to the Tribunal, disclosing relevant information, which includes number of the vehicle so also name and address of driver, owner and insurer of vehicle involved in the accident. It is also provided in the statute and thereby, it is settled legal position that on receipt of such Form No.54, the Tribunal is empowered to award just and reasonable compensation to the injured victim or legal heirs of the deceased victim, even if there is no formal claim petition filed by any of them. When statute has created such responsibility and liability upon the Tribunal, it goes without saying that for making award as aforesaid, Tribunal has to issue notices upon the driver, owner and insurer or concerned litigant at the earliest and to see that such notices are served either in due course or through the investigating agency or through any other appropriate mode of service as provided under the rules. To that extent, advocate for the claimant may be held responsible and negligent for not applying for public notice upon such driver, owner, more particularly, when vehicle was insured and details of Insurance Company is available with details of policy number. Unfortunately, the Tribunal has not bothered to take care of any such situation and dismissed the claim petition against opponents No.1 and 2. With due respect to the Tribunal, I have no option, but to observed that while doing so, probably, Tribunal has failed to realise that as a City Sessions Judge, though the powers may be different, the powers of the Tribunal are altogether different, but unfortunately, the Tribunal has while dismissing the petition against opponents No.1 and 2 observed that the petition shall proceed further in its usual course against opponent No.3 Insurance Company. Thereby, Tribunal has failed to realise that claim petition cannot be proceeded further without the presence of driver and owner because the ultimate legal responsibility and liability to pay compensation is solely upon the driver and owner of the vehicle in question; whereas, liability of the Insurance Company is only to indemnify the owner of the vehicle if there is an award against the owner to pay compensation. Therefore, when claim petition was dismissed against opponents No.1 and 2 being driver and owner of the vehicle in question, cannot continue against respondent No.3 only i.e. Insurance Company of the vehicle in question. To that extent, the original order dated 12.2.2013 is certainly without application of settled legal position for such litigant and therefore, it is certainly bad in law.