NATIONAL INSURANCE CO LTD Vs. VITH ADDITIONAL DISTRICT AND SESSION JUDGE/MOTOR ACCIDENT TRIBUNAL BARABANKI

JUDGEMENT

(1.) DEVI Prasad Singh, J. Whether the Motor Accident Claim Tribunal has got power under the law to recall its final judgment or award, is the question involved in the present writ petition? One Kasim Ali s/o Salar Baksh @ Salaroo R/o Mohalla-Miradhan, Kasba-Daryabad, Post Office-Daryabad, District-Barabanki succumbed to injuries at about 10 a. m. on 30th of September, 1998 in an accident alleged to be caused by a truck No. UPHG-9095. The dependants of late Kasim Ali had filed a claim petition registered as M. A. C. No. 350/1998 in the Court of Vth Additional District Judge/motor Accident Claim Tribunal, Barabanki. The Tribunal had decided the controversy and granted compensation to the claimants, Smt. Khatoon and others by the award dated 11th of January, 2001. According to Smt. Alka Verma, learned Counsel for the petitioner, after delivery of the award, on 3rd of January, 2001, petitioner had come to know that the driver of the vehicle Sri Prem Narain was having a fake and forged driving licence. After almost 1 year, petitioner had filed an application for recall of the award dated 11th of January, 2001 on the ground that in view of the provisions contained in Section 149 (2) of the Motor Vehicles Act, 1988, petitioner is not entitled to pay the compensation. After hearing the learned Counsel for the parties, by the impugned order dated 5th of March, 2002, the Tribunal has rejected petitioner's application with the finding that the Insurance Company shall be responsible to pay the compensation to the 3rd party, even if the Driving licence was fake. It has been further held by the Tribunal that under the Motor Vehicles Act, 1988 (in short referred as an Act), the tribunal does not have got power to recall its judgment, order or award. It has been further held by the learned Tribunal that since the petitioner had not filed an appeal under Section 173 of the Act, a dilatory tactics has been adopted by moving application in question to prolong the payment of compensation.

(2.) LEARNED Counsel for the petitioner submits that since a fraud was committed and it was not in the knowledge of the petitioner relating to fake licence possessed by the driver of the vehicle, the Tribunal has got power to recall its award. LEARNED Counsel for the petitioner has relied upon the judgments reported in (2001) 4 Supreme Court Cases 342, New India Assurance Co. , Shimla v. Kamla & Ors. , with connected cases, 2000 (1) JCLR 828 (SC) : (2000) 3 SCC 581, United India Insurance Co. Ltd. v. Rajendra Singh & Ors. , with connected case and 2005 (1) JCLR 4 (SC) : 2005 (1) IAC 14 (SC), National Insurance Company Ltd. v. Chalia Bharathamma & Ors.

(3.) UNDER Section 168 of the Act, it has been provided that on receipt of an application for compensation made under Section 166, the Claims Tribunal has been authorized to determine the amount of compensation which may be payable to an aggrieved party while rendering the award. Section 168 of the Act further provides that it shall be the duty of the Claims Tribunal to specify the amount which shall be paid by the insurer or the owner or the driver of the vehicle involved in the accident or by all or any of them as the case may be. Section 169 of the Act further lays down the procedure which is to be followed by the tribunal. For convenience, Section 169 of the Act is reproduced as under: "169. Procedure and powers of Claims Tribunals.- (1) In holding any inquiry under Section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purposes of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974 ). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudication upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry. " UNDER Section 170 of the Act, it has been made open to the Claims Tribunal to implead the insurer. For convenience, Section 170 of the Act is reproduced as under: "170. Impleading insurer in certain cases.- Where in the course of any inquiry, the Claims Tribunal is satisfied that - (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. " UNDER Section 173 of the Act, any person aggrieved by the award of Claims Tribunal may, within ninety days from the award, prefer an appeal to the High Court. Section 175 of the Act bars jurisdiction of Civil Courts.